Unfair dismissal, covid and reasonable adjustment

There have been many unfair dismissal cases decided by the Fair Work Commission dealing with claims by employees alleging unfair dismissal because of failing to be vaccinated against covid 19. Almost all of them have failed on the basis that employers by and large have had very little flexibility to permit unvaccinated employees to enter workplaces because of State government mandates imposing obligations upon employers to prevent unvaccinated workers attending workplaces. By and large the reasoning has been that those employees are unable to meet the inherent requirements of the job, and in some cases because it is misconduct.

There is a general doctrine of unfair dismissal theory in Australia that there will be occasions when an employer is required to allow employees what is sometimes is referred to as a “reasonable adjustment” to enable employees to adjust to changes of circumstances in the workplace which they may otherwise find difficult to adapt to.

The following passages from a recent Fair Work Commission case illustrate the concept in the context of covid 19 implications.

“[117] Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.

[118] Having found that there was a valid reason for dismissal, there are several other matters to be taken into account in making a holistic assessment of the overall fairness of the dismissal. In summary those matters go to the very significant consequences of dismissal for Mr Tween given his very long period of unblemished employment.

[119] As stated earlier in this decision, it is a tragedy that Mr Tween has lost his job because of his personal views about vaccination, particularly when he is so long into his career with the one employer in a narrow field of vocation.

[120] As referred to above in the principles stated in Hilder, the degree of seriousness of the misconduct and matters of mitigation are relevant matters to consider under s 387(h).

[121] Mr Tween was entitled to his personal view. As was submitted on his behalf, “mandatory vaccination has divided opinion in Australia, misinformation about vaccination has been widely distributed and has confused many people considering vaccination”. Quite obviously vaccination, let alone mandatory vaccination, is an issue about which many people have very strong views. Mr Tween’s counsel submitted the following on his behalf:

“It’s uncontroversial that asking an employee to take COVID-19 vaccine is a major risk…It’s a punt with excellent odds, overwhelmingly excellent odds but it is still asking employees to gamble with their lives to keep their jobs. Overwhelmingly excellent odds but it’s a very personal decision for each individual and for some people it’s a very difficult decision in the context of the height of vaccine paranoia, it’s very challenging for people.”

[122] However, the cold hard reality of the circumstances is that there was no medical reason at all why Mr Tween could not have been vaccinated. There is no evidence of Mr Tween seeking advice from a medical practitioner about the risks to him of receiving any of the approved vaccinations, even once it was clear that his job was in jeopardy. There is no medical reason given as to why Mr Tween’s preference in 2021 was to receive the Novavax vaccine (if it was approved) but not receive any of the other approved vaccines.

[123] The medical evidence provided by Dr Prasad about the risks associated with COVID-19, particularly the risks as they were understood in the second half of 2021, and the advice and urgings from every health authority in the country, were directly at odds with Mr Tween’s personal view.

[124] Qantas introduced its Vaccination Policy during a global pandemic for cogent medical reasons. Mr Tween’s personally held views about vaccination, and his fears, do not exempt him from compliance.

[125] Mr Tween submits that Qantas should have looked at alternatives to dismissal. His employment was long-standing, sustained and productive and, he says, based on that relationship he could expect to enjoy a degree of reciprocity of obligation from Qantas. He argues that even though Qantas is an enormous organisation, it was still required to have regard to Mr Tween as an individual when making decisions about his individual employment.

[126] Similarly, Mr Tween argued that his accrual of nine months of paid leave entitlements was built over 30 years of loyal service and that “any reasonable objective view would conclude that access to some of that leave would see Mr Tween through this difficult period.” There is some merit in this submission, particularly given Mr Tween’s length of service and his personal circumstances.

[127] Mr Tween did not ask to take paid leave until the “outcome meeting” when he was informed that his employment was ending. Mr Tween did not think to ask to use his leave accruals until his union came up with its “little plan” the day before the outcome meeting. By this time, it was too little too late.

[128] Mr Bird was the manager who made the decision to terminate Mr Tween’s employment. Mr Bird acted on the advice of HR personnel.

[129] As the following extract from the cross-examination of Mr Bird reveals, Qantas had zero interest in allowing employees to access leave entitlements (paid or unpaid) to stay in employment and avoid the requirement to be vaccinated:

“You met with Mr Tween and Mr Gill on 13 January; you remember that? Yes, that’s correct.

You were involved in a large number of these unvaccinated dismissals; is that right? Yes.

Were these termination meetings all happening at around the same time? They were happening at different points, I guess, because we were also dealing with some cases that were vaccinated late as well, so all happening consecutively but at different points as they were progressing.

When you told me earlier that you considered the question of whether Mr Tween should take leave, HR advised you that that wasn’t appropriate; is that right? We considered it on – well, partly on an operational perspective and also as a group perspective. If people were allowed to take leave in engineering then people in other departments would also be allowed to take leave, so, operationally, it was considered it wasn’t an option.

So just a blanket policy you’re not allowed to take leave to wait for Novavax? Correct.

Mr Tween’s particular personal circumstances, the amount of leave he had, his 30 years of perfect service, that didn’t matter, there was an HR policy? As I said, it was definitely discussed, we did review it, but the decision was we needed a consistent approach across the business

So you are agreeing with me that there was a blanket policy? Correct.” 13

[130] By cruelty of timing Mr Tween was dismissed one week before the TGA approved the Novavax vaccine for use in Australia. There was a suggestion in Mr Tween’s case that in early January Qantas should have known that Novavax’s approval was imminent.

[131] The proper time for assessment of Qantas’ decision not to allow employees to wait for Novavax was September 2021 when the Vaccination Policy was introduced and in November 2021 when the direction was to be complied with (at least for employees in Mr Tween’s circumstances).

[132] In 2021 the approval of Novavax was a possibility at best. In its publications in August and September 2021 Qantas made it clear that it was not prepared to allow employees to delay being vaccinated to wait for Novavax. In my view this approach was reasonable. Qantas was entitled to be sceptical of employees who professed to be waiting for Novavax. I accept that there were compelling medical reasons, supported by medical evidence, for some people to not receive the earlier-approved vaccines and to wait for Novavax. But for most employees, including Mr Tween, there was no medical basis to differentiate between Novavax and the approved vaccines.

[133] Even in early January 2022 Novavax’s approval was still only a possibility, although public statements in early January 2022 indicated that one way or another a decision would be made by late January.

[134] In my view Qantas was entitled to bring matters of vaccination to a head in 2021 and to require employees to provide proof of vaccination in 2021. Some in the community have been described as “vaccine-hesitant”. From a group wide perspective, to allow some employees to defer vaccination decisions for months or years without a compelling medical reason for doing so, would be operationally unworkable. In Mr Tween’s case, for example, if Qantas had allowed him to take nine months of paid leave, it would not know whether it needed to replace him (because of his vaccination decision) until the end of the nine months.

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

[135] I have made findings in relation to each matter specified in section 387 as relevant. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable and therefore an unfair dismissal.

[136] Overall I do not find that the dismissal of Mr Tween was harsh, unjust or unreasonable. Some aspects of this case point in favour of finding that Mr Tween was unfairly dismissed, particularly Mr Tween’s length of service, his personal circumstances and the uncertainty within some parts of the general community in relation to vaccination. However, there are significantly stronger aspects of this case that point against a finding that Mr Tween was unfairly dismissed: the seriousness of the global pandemic, the devastation of Qantas’ business, the measures taken by Qantas to return to normal operations, and the objectively and medically sound rationale that underpins the Vaccination Policy.

[137] Accordingly, I will make an order dismissing Mr Tween’s application. 14”

Tween v Qantas Airways Ltd (2022) FWC 1594 delivered 22 June 2022 per Easton DP