Unfair dismissal and covid 19 vaccinations

Here is an extract from a recent unfair dismissal case which concluded that the dismissal of an employee who failed to submit covid 19 vaccinations was not relevantly unfair in all the circumstances.

“By the Applicant’s decision to decline to receive a vaccination within the required timeframe, he was unable to fulfil the inherent requirements of the Role he had been engaged in at the time of his dismissal. I am consequently satisfied in the circumstances that the Applicant’s inability to fulfil the inherent requirements of the role for which he was employed founds a valid reason for his dismissal related to his capacity. This weighs in favour of a finding that the dismissal was not unfair.

Other relevant matters – s.387(h)

[69] At the time of the Applicant’s dismissal, he was providing care and support for his terminally ill father in Benalla. That in my view is a relevant consideration in circumstances where the Applicant had sought to work remotely for a period of time, in part to provide that care and support. Sadly, the Applicant’s father has now passed away.

[70] The Applicant’s personal circumstances leading up to and at the time of his dismissal were undoubtedly difficult. That was acknowledged by Ms Colley when she discussed those personal circumstances with the Applicant in late September or early October 2021. Consideration was extended to the Applicant by allowing him to work remotely for a brief period of time during which period the Applicant’s site inspection duties were undertaken by colleagues. That flexibility was an appropriate response in the circumstances as it enabled the Applicant to work remotely up until he was stood down on 24 November 2021, that date coinciding with the Respondents’ staff return to the office and the second dose deadline of 26 November 2021.

[71] For the reasons previously outlined above, I do not accept it would have been reasonable for the Respondent to allow an open ended remote working arrangement given the Applicant had made a conscious decision not to receive the vaccination and the impact it would have had on colleagues of the Applicant who would have been required pick up the duties the Applicant was unable to perform.

[72] I am satisfied that the Respondent provided appropriate support to the Applicant in the period between early October 2021 and 24 November 2022 in that he was able to work remotely while other staff covered the site inspection requirements of the Role. That flexibility provided to the Applicant also assisted him deal with his personal circumstances. While the Applicant may believe that his personal circumstances warranted greater consideration, that would have placed the Applicant in a favourable position relative to other staff who had elected to be vaccinated and in circumstances where there was no certainty when the CHO directions and pandemic orders would cease to apply.

[73] I am not persuaded that the Applicant’s personal circumstances weigh in favour of a finding that the dismissal was harsh and thereby unfair.

Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust, or unreasonable?

[74] I have made findings in relation to each matter specified in s.387 of the Act as relevant. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust, or unreasonable29.

[75] As set out above, I am satisfied that a valid reason for the Applicant’s dismissal, related to his capacity, has been established and that the dismissal process followed by the Respondent was procedurally fair. The dismissal was not related to the Applicant’s performance and the size and capacity of the Respondent did not impact on the procedures that it followed and as such these matters weigh neutrally in my consideration of whether the dismissal was unfair. No other matters raised by the Applicant weigh in favour of a finding that the dismissal was unfair.

[76] It follows from the above, having considered each of the matters specified in s.387 of the Act, that I am satisfied that the dismissal of the Applicant was not harsh, unjust, or unreasonable because there was a valid reason for the dismissal and no other factors weigh in favour of a finding that the dismissal was unfair.

Conclusion

[77] 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 s.385 of the Act.”

Webber v Yarra Ranges Shire Council T/A Yarra Ranges Council  (2022) FWC 1196 delivered 18 May 2022 per- Masson DP