Unfair dismissal and covid 19; the last word?

Many attempts have been made to challenge a dismissal based upon the employee not being vaccinated against Covid 19 in unfair dismissal cases, but I cannot recall any succeeding. In the appeal which is the subject of this decision extract the Fair Work Commission  rejected (a) an attack upon the validity of the public health order mandating the vaccination and (b) the argument that the dismissal was relevantly unfair because it was premature.

“The Appellant contended that his dismissal was unfair on a number of grounds including that there was no lawful requirement for him to comply with the Direction as he was on a period of leave and not required to attend the workplace until he was fit for work on 24 May 2022. The Appellant contended that the Direction was unlawful, and it did not apply to the Respondent’s operations. The Appellant submitted that the dismissal was based upon ideological differences due to him participating in rallies that opposed vaccination. Further, the Appellant submitted that the dismissal was premature and unfair as he was not provided adequate notice, he could have accessed long service leave upon his return and if he was dismissed and then became infected with COVID-19 he could have returned to work as he would be exempt from vaccination for a period. Finally, the Appellant submitted that his dismissal was harsh in light of his medical status.

[7] The Respondent contended that there was a valid reason for the Appellant’s dismissal, namely that: the Appellant failed to comply with a reasonable and lawful direction issued to him; non-compliance with the direction also constituted serious misconduct; and it was the Appellant’s own choice not to comply with the Direction. The Respondent also contended that the Appellant’s dismissal was not premature because the Appellant had indicated several times that he did not intend to be vaccinated; the Respondent had no way of knowing when the Appellant would be able to return to work and they needed certainty to fill his position; and that an absence from work does not mean that the dismissal was unfair or premature. The Respondent maintained that its dismissal procedure was fair in that the Appellant had notice of the dismissal, was given multiple opportunities to discuss his vaccination status and make submissions prior to being terminated.

[8] The Commissioner began by discussing the Direction itself. The Commissioner confirmed that the Direction had not been declared invalid. Further, the Commissioner confirmed that the Direction applied to the Appellant such that he would not be lawfully permitted to work in the Respondent’s workplace without providing proof of vaccination or appropriate medical exemption. The Commissioner then affirmed that the Direction still applied after 24 May 2022, the date that the Appellant was fit to resume duties and it continues to apply to the Respondent’s operations. The Commissioner also found that the Direction provided the Respondent a lawful and reasonable basis to instruct employees to comply with the Direction.

[9] The Commissioner then turned to s.387 of the Act, whether the dismissal was unfair. He began by considering whether there was a valid reason for the Appellant’s dismissal (s.387(a)), noting foremost that he had already found that the Direction was lawful and reasonable. He found that the question which remained was whether the Direction applied to the Appellant as he was not at work and not expected to be at work until some months after the dismissal. The Commissioner referred to Bacon v Glenelg Community Hospital Incorporated [2022] FWCFB 125. Taking into account the Appellants clear intention to not become vaccinated and the Respondent’s staffing issues, the Commissioner found that the Direction was lawful and reasonable in the Appellant’s circumstances and that non-compliance with that instruction is a valid reason for dismissal. The Commissioner rejected that the Appellant was not obligated to do anything while on personal leave and that the Respondent was entitled to make inquiries regarding his medical status, vaccination status and fitness for work.

[10] Additionally, the Commissioner was satisfied that the Appellant was notified of the reasons for his dismissal (s.387(b)), that he was given an opportunity to respond (s.387(c)) and that he was not unreasonably refused a support person (s.387(d)). The Commissioner considered that s.387(e) did not arise and that ss.387(f) and (g) were not relevant. Taking into account other relevant matters (s.387(h)), the Commissioner considered the Appellant’s personal circumstances including his long-standing employment, specialist skills and cochlear implant.

[11] Given the facts of the matter and the statutory considerations, the Commissioner was not satisfied that the Appellant’s dismissal was harsh, unjust or unreasonable. Accordingly, it was not unfair within the meaning of the FW Act. The Commissioner dismissed the application.

……………………………………………….Consideration

[17] Having considered the Appellant’s submissions, we are not satisfied that there is an arguable case of error in the Decision. We consider that the Appellant is attempting to reagitate the merits of his case as put to the Commissioner at first instance, specifically in relation to the validity of the Direction. We note that the Commissioner dealt with these submissions at paragraphs [62] – [81] of the Decision. Here, the Commissioner considered the relevant legislation, authorities and was satisfied that the Direction provided a proper basis for the Respondent to lawfully and reasonably instruct employees to become vaccinated at the relevant time. Further, the Commissioner gave additional consideration to whether the Direction applied to the Appellant at [91] – [103], finding that the Direction applied to the Appellant in advance of his anticipated return to work because to be ready to resume work he needed to become vaccinated. Therefore, taking into account that the Appellant had indicated that he had no intention to become vaccinated, the Commissioner was satisfied that the Respondent had a valid reason to dismiss the Appellant. We have also considered the Appellant’s submissions regarding accessing accrued personal leave and the potential to be dismissed for misconduct, and note that these submissions were put to and considered by the Commissioner at first instance. It is clear that the basis on which the Commissioner reached his Decision discloses an orthodox approach to the determination of the Appellant’s application. The Commissioner applied the correct legal principles, considered, and dealt with the evidence that was before him, and made findings of fact based on that evidence. We are satisfied that the Commissioner’s conclusions were reasonably open on the evidence before him.

[18] Further, we have considered whether this appeal attracts the public interest, and we are not satisfied that:

  • there is a diversity of decisions at first instance so that guidance from an appellate body is required;
  • the appeal raises issues of importance and/or general application;
  • the Decision at first instance manifests an injustice, or the result is counter intuitive; or
  • the legal principles applied by the Commissioner were disharmonious when compared with other decisions dealing with similar matters.

Conclusion

[19] For the reasons set out above, we are not satisfied that it would be in the public interest to grant permission to appeal pursuant to s.400(1) of the Act.

[20] Accordingly, permission to appeal is refused.”

 

Clarke v Babcock Mission Critical Services Australasia Pty Ltd (2022) FWCFB delivered 24 November 2022 per Catanzariti VP, Lake DP and Simpson C