Unfair dismissal and covid 19 mandates

Here is an extract from a recent unfair dismissal case of the Fair Work Commission in which the Commission held that the dismissal of an employee who was not vaccinated against covid19 was based upon a valid reason because the employee could not lawfully enter the workplace and  undertake the duties of the job because of government vaccination mandates.

“Was there a valid reason for dismissal relating to Mr Fawaz’s capacity or conduct (s.387(a))?

[39] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded” and should not be “capricious, fanciful, spiteful or prejudiced.” 11 However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.12

[40] In Crozier v AIRC 13 it was found that:

“A reason will be “related to the capacity” of the employee where the reason is associated or connected with the ability of the employee to do his or her job.”

[41] In my view, G4S had a valid reason to dismiss Mr Fawaz because he was unable to do his job. Mr Fawaz had not provided G4S with evidence that he had been vaccinated against COVID-19, or that he had a medical exemption. G4S was contractually prohibited from allowing Mr Fawaz to enter his workplace, most recently being the Sunshine Magistrates’ Court.

[42] To do his job, Mr Fawaz had to physically attend whichever court or tribunal he had been assigned. From 22 October 2021, G4S was contractually bound to ensure that any of its employees attending CSV premises complied with the CSV Policy and Direction. The effect of this was that, as at this date, employees needed to provide proof of vaccination or proof of a medical exemption.

[43] As at 21 October 2021, Mr Fawaz had not provided proof of his vaccination status. As at 8 November 2021 and by 29 November 2021, Mr Fawaz had still not provided the required information.

[44] In these circumstances, G4S was entitled to conclude Mr Fawaz would remain unvaccinated.

[45] As a Court Security Officer, he could not attend work premises. He could not perform his job from elsewhere, nor was such a notion canvassed. G4S gave undisputed evidence that it does not provide employees outside its contract with CSV. As such, G4S could not redeploy Mr Fawaz to a site that was not subject to COVID-19 vaccination requirements.

[46] I am satisfied that G4S had a good and substantial reason and, therefore, a valid reason to dismiss Mr Fawaz. From 22 October 2021 he was unable to do his job because his employer was contractually prohibited from allowing him to attend the workplace.”

Fawaz v G4S Integrated Services Pty Ltd – [2022] FWC 777 – 7 April 2022 – Mirabella C