Unfair dismissal and vaccination mandates

These passages from a Fair Work Commission unfair dismissal case contain an examination of the relationship between whether there was a valid reason for the termination of an employee’s employment and covid 19 vaccination mandates for workplaces.

Consideration – Valid Reason

[21] The reason for the Applicant’s dismissal, as proffered by the Respondent, is that the Applicant failed to comply with the PHO Requirement that persons performing “relevant work” at the Respondent’s workplace, in the Applicant’s position (as an “Education worker”), must have had 2 doses of a COVID-19 vaccine, or been issued with a medical contraindication certificate. 24 “Relevant work” is defined as “work at a government school or non-government school.”25 There is no dispute that the Applicant’s work is covered by the PHO Requirement, and I equally make this finding.

[22] The effect of the PHO Requirement was that, from 8 November 2021, the Applicant, as an unvaccinated person without a valid medical contraindication certificate, was unable to perform work on-site at the Respondent’s workplace (a non-government school), and was therefore unable to satisfy the requirements of her role as a teacher and “Education worker”. 26 A failure to meet the requirements of a Public Health Order, resulting in an inability to perform work at an employer’s workplace, has been found to be a valid reason for dismissal.27 Further, in Shepheard v Calvary Health Care trading as Little Company of Mary Health Care Limited28, Deputy President Saunders found that if an employer permitted an employee, who had not complied with a similar Public Health Order requirement to enter its workplace, the employer would itself be in breach of the PHO.29

[23] The Applicant in her written and oral submissions suggests that notwithstanding the PHO Requirement, the decision to dismiss the Applicant for non-compliance with the PHO Requirement was not a ‘valid reason’ for dismissal as the Respondent could have, or should have, devised its own alternative method to determine whether the Applicant was entering the workplace with COVID-19, e.g. via regular RAT testing. In my view, this suggestion misses the point. Regular RAT testing is not an option, or an alternative option, under the First or Second PHOs. Regular RAT testing is not a proposal that would result in compliance with PHO Requirement. 30

[24] As at the date of her dismissal, the Applicant had not complied with the applicable PHO Requirement. 31 Having regard to the evidence and submissions of the parties, I find that the reason for the Applicant’s dismissal, being non-compliance with the applicable PHO Requirement, was a valid reason on two separate grounds. In this regard, I find that:

  1. a) firstly, compliance with the PHO Requirement was an inherent requirement of the Applicant’s role at the Respondent. Her failure to comply with the PHO Requirement was a valid reason for her dismissal in that she was not able to satisfy the inherent requirements of her job; and
  2. b) secondly, the Respondent made reasonable and lawful directions to the Applicant to comply with the PHO Requirement. In failing to comply with the PHO Requirement, the Applicant breached those reasonable and lawful directions by the Respondent, which gave rise to a valid reason for her dismissal.

[25] My findings in the foregoing paragraph weigh against any finding that the Applicant’s dismissal was harsh, unjust, or unreasonable.”

Shah v Catholic Education Office Parramatta Diocese (Cedp) (2022) FWC 443 delivered 29 March 2022 per Boyce DP