Unfair dismissal cases and Covid 19 vaccinations; the last word?

These concluding remarks by a senior member of the Fair Work Commission in an unfair dismissal case decision following the termination of the employment of an employee for refusing to submit to a second Covid vaccination are revealing in that they clearly show who so many cases brought for unfair dismissal in those circumstances failed.

 

“What other matters are relevant (s.387(h))?

[119] Section 387(h) requires the Commission to take into account any other matters that the

Commission considers relevant.

[120] I accept that Ms Saidi had a personal objection to receiving a second dose of a COVID19 vaccine. She is not alone in this regard. Ms Saidi had one dose of the Novavax vaccine

without any apparent adverse consequences, but refused to have a second dose – which she was

entirely at liberty to do.

[121] Sometimes the assessment of whether a dismissal is harsh involves an assessment of the

competing consequences: some dismissals are adjudged to be harsh because the consequences

for the dismissed worker are disproportionate to the consequences of the misconduct for the

employer.

[122] In this case the consequences for Ms Saidi were significant – she ultimately lost her job

once Healthscope’s patience ran out.

[123] The peak of the COVID-19 pandemic was an extraordinary time. Healthscope operated

more than 40 hospitals across the country, managed 19,000 staff and treated for patients at their

most physically vulnerable, including patients with COVID-19. It is difficult to imagine a

workplace where the consequences of failing to implement and enforce proper COVID-19

control risks could have more significant consequences.

[124] Healthscope acted lawfully and reasonably in the risk control measures it applied across

its hospitals and workforce. Healthscope acted with patience and respect towards Ms Saidi and

fairly applied its vaccination policy to Ms Saidi’s circumstances. Ms Saidi’s dismissal was

proportionate to her failure to comply with Healthscope’s vaccination policy.

[125] I find that the dismissal of Ms Saidi was not harsh, unjust and/or unreasonable. As such

I will make an order dismissing her application (PR761709).”

 

Saidi v Healthscope Operations Pty Ltd  [2023] FWC 1083 delivered 8 May 2023 per Easton DP