Unfair dismissal cases and vaccination implications

Some members of the Fair Work Commission have issued decisions in unfair dismissal cases to the effect that a failure by an employee to comply with an employer’s instruction that staff be vaccinated against covid 19 constitutes misconduct (and in some cases serious misconduct). Others have been more cautious and dealt with such claims on the basis that there was a valid reason for the dismissal based upon the employee having elected to be unable to meet the inherent requirements of the job by being unable to lawfully attend the workplace.

“For a dismissal to be unfair, the Commission must be satisfied that it was harsh, unjust or unreasonable (s 385(b)). In considering whether it is so satisfied, the Commission must take into account the various matters specified in s 387. And the distinction can have very significant implications for the employee, for example pro rate long service leave in Western Australia can be lawfully withheld by an employer where a termination of employment is for serious misconduct.

Here is a more lenient take on the issue.

“The Commission is required to consider whether there was a valid reason for the dismissal related to the person’s capacity or conduct (s 387(a)). Such a reason is one that is valid in the sense both that it was a good or sufficient reason, and also a substantiated reason.

The essence of a valid reason is a reason that is sound, defensible or a well-founded reason – one that is not capricious, fanciful, spiteful or prejudiced. 42

Ms Jamison is not an “anti-vaxxer”. Her evidence, which I accept, is that, during the 8 years of her employment with Monash Health, she has received a number of vaccines for “Influenza Vaccine, Whooping Cough, MMR [measles, mumps, and rubella] and boosters as well as Quantiferon blood test.” 43 Her evidence is that her opposition to the COVID-19 vaccine is based solely on a lack of evidence and information about those vaccines. I have commented above that it is clear no amount of evidence and information would have changed the Applicant’s mind. Wide scale, all of population, roll-outs of COVID-19 vaccines began in January 2021. In the lead up to the approval (sometimes provisional approval) of those vaccines and since the roll-out there have been countless reputable studies about vaccine efficacy and safety. Ms Jamieson is a competent, smart and resourceful person. She gave evidence that she copied and pasted a lot of her questions to Monash and her submissions before the Commission from the internet. She claimed to have “researched it”.44 There is no reason why she could not have deployed these research skills to better satisfy herself of the safety and efficacy of COVID-19 vaccines. She was not entitled to expect Monash Health to provide it to her. I reject her contention45 that Monash Health was involved in “the withholding of crucial medical information” to her.

I am satisfied that Monash Health had a valid reason to terminate Ms Jamieson’s employment. Ms Jamieson was entitled to make the decision she made not to get vaccinated. This case is not about vaccine mandates. There was no vaccine mandate. There was, however, a direction to employers not to allow employees to attend for work on site unless they were vaccinated. Monash Health then issued its own direction to employees “to ensure they are able to enter and remain on the premises of Monash Health.” Again, this was not a vaccine mandate.

As a dental nurse attending on site (as and when required) was an inherent requirement of the Applicant’s position. The evidence did not support a finding that the Applicant could have undertaken her work from home. By deciding (as she was freely able to do and did) not to get vaccinated the Applicant made herself unable to perform the inherent requirements of her role. It was her choice. It is simply the case that Ms Jamieson does not like the consequence that flowed from the voluntary choice that she made. By reason of that choice Ms Jamieson was not able to attend work on site. Ms Jamieson’s decision not to get vaccinated meant that Monash Health, bound by the terms of the Directions, was required to ensure that Ms Jamieson did not attend the workplace. Monash Hospital was in no position not to comply with the Directions. It acted as it was lawfully required to do.

Having found that there was a valid reason for the dismissal associated with the Applicant’s inability to the perform the inherent requirements of her position it is not necessary for me to determine whether the Applicant engaged in serious misconduct by not complying with the Monash Direction. That is what Monash Health contended. I will not decide the point. However, I observe that it appears somewhat overstated and a heavy-handed approach.”

Jamieson v Monash Health (2022) FWC 1331 delivered 6 June 2022 per Johns C