Unfair dismissal, vaccinations and valid reason for dismissal


These passages from a decision of the Fair Work Commission in an unfair dismissal case set out the legal principles which the Commission applies when dealing with an assertion by a former employee that a decision not to be vaccinated by an employee is not a valid reason for dismissal.

“For a reason for dismissal to constitute a valid reason, as used in the FW Act, the reason must be “sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason”. 14

[33] The Applicant submits that there was no valid reason for his dismissal as, at the time of dismissal, while he accepts he was not vaccinated, he was working from home with no specific return to office date having been set.

[34] Further, the Applicant submits that the office he would be expected to attend at the time of a return to the office was not a care facility and it was not a location where members of the public would attend. Those employees of the Respondent who may have contact with clients work from a different location to that he would be required to attend.

[35] The Applicant also said that his immediate team members and colleagues all work in New South Wales and Queensland, he had no face to face contact with them and nor was he required to have face to face contact with anyone else. All of his work was done over the phone. Even on return to the office he says he would not be required to interact with others.

[36] The Applicant submits that his job was not subject to the Victorian Government Direction with respect to vaccinations.

[37] The Applicant does not accept the Respondent’s Policy as being reasonable. Further, he says that it is his choice as to whether he becomes vaccinated.

[38] The Respondent submits that the direction to the Applicant to be vaccinated was a lawful and reasonable direction, that the Applicant refused to comply with this direction and that failure constitutes serious misconduct and provides a valid reason for dismissal. Further, it submits that the Applicant had made clear it was his decision not to comply with the Policy and there was nothing the Respondent could do to change his mind.

[39] The matter to determine is if the Applicant’s refusal to comply with the Policy and be vaccinated as required by the Policy constitutes a valid reason for dismissal. Whether such a refusal constitutes serious misconduct is not the relevant question at this stage (but has been considered below). The statutory question is if there existed a valid reason for dismissal at the time of the dismissal.

[40] In this I am satisfied that the terms of the Applicant’s contract with the Respondent are clear and unambiguous. It states that:

While working with the Company you will be required to comply with company policies and procedures

[41] The Applicant accepted those terms of employment. The contract did not enable him to pick and choose the policies he would comply with or pick and choose the circumstances under which he would comply.

[42] As I found above, I am satisfied that the Policy was properly made.

[43] In Construction, Forestry, Maritime, Mining and Energy Union & Ors v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal (Mt Arthur Coal) 15 the Full Bench of the Commission said:

[68] It is uncontentious that a lawful direction is one which falls within the scope of the employee’s employment. There is no obligation to obey a direction which goes beyond the nature of the work the employee has contracted to perform, 16 though an employee is expected to obey instructions which are incidental to that work.17

[44] The Full Bench observed that reasonableness “‘is a question of fact having regard to all the circumstances’  18 and that which is reasonable in any given circumstance may depend on, among other things, the nature of the particular employment.”19 The Full Bench went on to find:

[77] It appears uncontroversial that in order to establish that a direction is reasonable, it is not necessary to show that the direction in contention is the preferable or most appropriate course of action or in accordance with ‘best practice’ or in the best interest of the parties. It is also uncontentious that in any particular context, there may be a range of options open to an employer within the bounds of reasonableness. As the Respondent submits:

‘In assessing whether any direction is reasonable, it is necessary to bear in mind that within the boundaries of an employer’s power of direction there is an area of ‘decisional freedom’ within which the employer has a genuinely free discretion. That area is co-extensive with what was once more commonly called ‘managerial prerogative’. Within that area, reasonable minds might differ as to what decision is best or most desirable, but any decision or outcome within that area is within the bounds of reasonableness.’ 20

[78] The availability of a range of reasonable directions in response to a particular set of circumstances sits conformably with the following observation of the plurality in Li, 21 albeit the point arose in different context:

‘… there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court’s view as to how a discretion should be exercised for that of a decision-maker.’ (Footnotes omitted)

[45] I have carefully considered the Respondent’s reasons for introducing the Policy. I am satisfied that its obligation to staff and clients means that the Policy response was reasonable. In accordance with the Applicant’s employment contract, he was required to comply with that Policy and that he do so constituted a lawful direction. A failure to comply with the Policy would constitute a failure to comply with a lawful and reasonable direction and may constitute a valid reason for dismissal.

[46] The Applicant did fail to comply with the Policy in that he failed to provide proof that he had received at least a first dose of the COVID-19 vaccination by 31 December 2021. Further, he made it abundantly clear that regardless of any policy prescription he had no intention of having a vaccine prior to 31 December 2021.

[47] In these circumstances I am satisfied that there was a valid reason for the dismissal of the Applicant.”

Colwell v Wellways Australia (2022) FEC 1086 delivered 24 May 2022 per Bissett C