Unfair dismissal and covid 19 vaccination mandates

This portion of reasons for decision from an unfair dismissal case indicates the approach being taken by the Fair Work Commission to dismissals of unvaccinated employees, government mandates and a valid reason for dismissal.

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

[48] 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.” 5 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.6

[49] In Crozier v AIRC 7 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.”

[50] In my view, Goodstart had a valid reason to dismiss Ms Curnow because she was unable to do her job. To do her job, Ms Curnow had to physically attend the childcare premises of Goodstart. Ms Curnow had not provided Goodstart with evidence that she had been vaccinated against COVID-19, or that she had a medical exemption. Goodstart was legally prohibited from allowing Ms Curnow to enter her workplace, which was Goodstart’s Dandenong Princess Highway Centre.

[51] The Directions applied to Ms Curnow, the result of which was that from 18 October 2021, Goodstart was legally required to ensure that any of its employees attending its premises complied with the Directions. The effect of this was that, as at this date, employees needed to provide proof of vaccination or proof of a medical exemption.

[52] Over the months of October to December 2021, Ms Curnow had not provided proof of her vaccination status. As at 2 December 2021, when Goodstart sent a show cause letter, Ms Curnow had still not provided the required information.

[53] As an Assistant Director of a childcare centre, she could not attend work premises. She could not perform her job from elsewhere.

[54] In these circumstances, Goodstart was entitled to conclude Ms Curnow would remain unvaccinated.

[55] In oral evidence, even Ms Curnow conceded that point when she said:

“I accept that I would not have been able to work once the Victorian mandates had been applied. That’s not what I’m challenging. I’m challenging the Goodstart changing the terms of my employment contract. I understand that I wouldn’t have been able to have worked from the 25th onwards.”

[56] From 18 October 2021, Ms Curnow was unable to do her job because her employer was legally prohibited from allowing her to attend the workplace. I am satisfied that Goodstart had a good and substantial reason and, therefore, a valid reason, relating to Ms Curnow’s capacity, to dismiss her.

[57] The second reason Goodstart relies upon in their contention that Ms Curnow’s dismissal was not unfair is that she refused to follow a lawful and reasonable direction.

[58] I adopt Deputy President Colman’s summary of the law relating to lawful directions: 8

“Implied into the contract of employment is an obligation of an employee to obey the employer’s lawful and reasonable directions (Bayley v Osborne (1984) 4 FCR 141 at 145). The requirement that the direction be lawful has two dimensions. One is that the employer cannot demand that an employee act unlawfully. The other is that the direction must be within the scope of the contract of employment (see R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday and Sullivan (1938) 60 CLR 601 at 621-2 per, Dixon J). The latter reflects the ‘general rule … that a contract by which a person is employed in a specific character is to be construed as obliging him to render, not indeed all service that may be thought reasonable to render, but such service only as properly appertains to that character’ (see Commissioner for Government Transport v Royall (1966) 116 CLR 314 at 322, per Kitto J).”

[59] I do not accept Ms Curnow’s contention that the change to Goodstart’s policy to include a mandate for COVID-19 vaccination is unlawful and unreasonable.

[60] Goodstart’s direction to Ms Curnow to provide information regarding her vaccination status did not require Ms Curnow to act unlawfully. Goodstart was required by the No 5 Directions to seek that information from Ms Curnow and to not allow her to enter their premises for work unless she had provided them with the relevant information regarding her vaccination status. As per Barbara Roman v Mercy Hospitals Victoria Ltd 9 “… a direction to an employee to do something that is a necessary condition for a state of capacity to do his or her job is a lawful direction.”

[61] The scope of Ms Curnow’s employment contract included requirements for vaccination. That the policy and requirements for vaccination which formed part of Ms Curnow’s employment contract were amended to mandate a COVID-19 vaccination is not, as Ms Curnow contends, a change of her employment contract. In the OE, there was scope for a change in policy and a statement that the policies relevant to Ms Curnow’s employment “varied from time to time”. Ms Curnow accepted the OE and necessarily accepted the terms of employment contained and referred to within it. I accept Goodstart’s submissions that they consulted with relevant unions and that they were not required to consult with Ms Curnow individually.

[62] In all the circumstances, I am of the view that Goodstart’s direction was a reasonable one. I do not accept Ms Curnow’s submission that the direction was unreasonable because in order to keep her job she was required to “undergo a clinical trial.” 10 Ms Curnow worked in a childcare centre. A government health order added additional legal prohibitions on its operations, the consequence of which required them to obtain information regarding the vaccination status of its employees and to prevent employees who had not complied with the Directions from attending work on site. Goodstart faced penalties if they did not comply. In these circumstances, it was a reasonable direction to Ms Curnow to provide information of her vaccination status.

[63] Goodstart, therefore, had a second valid reason to dismiss Ms Curnow; that is, misconduct for refusing to follow a lawful and reasonable direction.”

Curnow v Goodstart Early Learning (2022) FWC 1234 delivered 23 May 2022 per Mirabella C