Harsh dismissals during covid

I have been taken aback by the Fair Work Commission’s general attitude to some unfair dismissal cases with covid implications. I have had no difficulty with the Commission holding that a failure by an employee to become vaccinated against covid 19 is a valid reason for dismissal in those circumstances where the employer is merely complying with public health orders and not permitting unvaccinated employees to enter workplaces and thus those employees are therefore unable to meet the inherent requirements of the job.

However as it seems to me it is quite another matter to conclude, as the Commission without more has routinely done, that it follows as night follows day that such a dismissal is not harsh, unjust and unreasonable in cases where the employer does not offer up reasons why it would be unreasonable to keep the employee on its books until the employee can lawfully return to work.

I would have a different view about this if there was evidence to this effect produced by the employer. For example I have been advised by a workers compensation insurer that an entity’s premiums would not be greater merely because some employee’s are on leave pending being able to return to the workplace.

Here is an example.

“Harsh, Unjust, or Unreasonable?

[62] I have made findings in relation to each matter specified in section 387 of the Act as relevant. I must consider and give due weight to each as a fundamental element, as well as the doctrine of fairness, in determining whether the termination was harsh, unjust, or unreasonable. 18 Having considered each of the matters specified in section 387 of the Act, and fairness in the circumstances, I am satisfied that the dismissal of the Applicant was not harsh, unjust, or unreasonable.

[63] The Respondent had a valid reason for termination as the Applicant could no longer perform the inherent requirement of his position as he was no longer able to lawfully attend the work site.

[64] The Applicant was aware of the choices available to him and exercised his choice to not become vaccinated or provide evidence of his vaccination, the Commission notes that choice was open to him to make and passes no judgement in that regard. However, the Applicant’s choice put the Respondent in the position where they could not lawfully allow him to attend the work site.

[65] At the time of making the decision to terminate the Applicant’s employment, the Respondent had no time frame as to when (or if) the Directions would be lifted. Therefore, it was not unreasonable for the Respondent terminate the Applicant as opposed to have the Applicant on some form of paid or unpaid leave for an indefinite period. A valid reason for dismissal arose, the Applicant was afforded procedural fairness, and the Respondent determined it would terminate the Applicant.


[66] Not being satisfied that the dismissal was harsh, unjust or unreasonable, I am not satisfied that the Applicant was unfairly dismissed within the meaning of section 385 of the Act. The Applicant’s application is therefore dismissed, an Order has been issued. 19”

McIlwain v Woolworths Group Limited  (2022) FWC 3060 delivered 28 November 2022 per Schneider C