Unfair dismisal, covid vaccinations and privacy obligations

This extract from a decision of the Fair Work Commission in an unfair dismissal case brought by an employee who was dismissed from his employment due to not being vaccinated deals with a number of issues including consent, policies, inherent requirements and privacy obligations upon employers.

“In terms of consultation, the Respondent provided extensive consultation under a plan that had been agreed with the unions following the decision in CFMMEU & Ors v BHP Coal Pty Ltd & Ors. 17 The Applicant had been provided with information and had also responded with his own questions regarding the vaccines and there had been a site-specific risk assessment conducted at the site.

[58] Considering those intimations by the Applicant, the Respondent could not provide him with further work. I am satisfied that the Applicant’s failure to comply with the Respondent’s direction – the consequence being that the Respondent could not provide him with any further shifts or else be in contravention of their Site Access Requirement – constituted a valid reason for dismissal.

[59] It is not in dispute that the Respondent holds certain responsibilities under the Privacy Act 1988 (Cth) (Privacy Act). These requirements outline that any proposed information to be collected from employees requires consent to the collection pursuant to APP3.3(a). This notion of consent and whether the information is collected in lawful and reasonable circumstances is dependent on the context in which it is invoked.

[60] There is a common law right to personal and bodily autonomy and integrity which is recognised in the Mt Arthur Coal Full Bench decision. In relation to the Privacy Act or bodily integrity, any consent given for the two matters may be vitiated by a threat of discipline or termination. In this matter there is no issue of lack of compliance by the Respondent to any of the requirements of the Privacy Act.

[61] In relation to the present case, requesting an employee to provide vaccination status does not in any way put undue pressure on an employee to undergo vaccination. The decision resides with the Applicant and is open for him to decline. The Full Bench noted that the choice lay with Applicant and his decision to decide between getting the vaccination and continuing to be employed. The rights of bodily integrity need to be balanced against all other rights, including the health and safety of other employees in the workplace. For these reasons, I find that the Respondent’s direction that requires for the collection of employee sensitive information such as their vaccination status does not impinge on the rights of employees’ bodily integrity and is not an unlawful or unreasonable direction.”

[62] The Applicant had the choice and was within his rights to decline to become vaccinated or to provide evidence, However, his own choice not to do so rendered him unable to perform the inherent requirements of the job. The Applicant’s failure to comply with the direction concerning his vaccination status resulted in the Respondent being unable to permit the Applicant to perform his role after 31 January 2022.

Anderson v Central Queensland Services Pty Ltd T/A BHP Mitsubishi Alliance (BMA) (2022) FW C 2880 delivered 27 October 2022 per Lake DP