Unvaccinated worker has token win

Here is an extract from an unfair dismissal decision of the Fair Work Commission determining that the dismissal of an unvaccinated employee was an unfair dismissal because the employer had acted “prematurely” in dismissing the employee because he could, for some time at least, have reasonably continued to work from home.

“[40] There is no criticism of Baptcare that it, ultimately, required CSS employees to return to the office. That was its managerial prerogative. But until such time as they actually required in person attendance, nothing prevented the Applicant from performing the job that, for the better part of two years, he had been performing from home in any case.

[41] The termination of the Applicant’s employment on 10 November 2021 was premature. There is no reason why Baptcare could not have allowed the Applicant to continue in his employment until such time as it actually required him to return to the office. Had that been on 11 November 2021 I would have dismissed the Applicant’s application for an unfair dismissal remedy. Had it been reasonably within the contemplation of Baptcare that the return to the office was likely to occur at some point close to 10 November 2021, the Respondent would have been able to successfully argue that the Applicant could not perform the inherent requirements of his job. Had Baptcare terminated the employment of the Applicant on 24 February 2022 I would have dismissed the Applicant’s unfair dismissal application.

[42] But that is not what occurred. For three months and 14 days after the employment of the Applicant was terminated he could have continued to perform his work at home just like every other CSS employee.

[43] The same was confirmed by Mr Wilson in the following exchange 51:

Commissioner: “All right.  Let me ask the question again, Mr Wilson.  Since 10 November how many times have Baptcare CSS employees been required to attend a Baptcare premises?”

Mr Wilson: “Well, in that specific instance, I’m not aware of any occasions.”

Commissioner: “Is the answer, ‘Zero, Commissioner’?”

Mr Wilson: “Well, I am aware of zero cases, Commissioner.”

Commissioner: “Yes.  And isn’t it the case since 10 November last year at no time has a CSS employee been required to attend a Baptcare premises or training?”

Mr Wilson: “I am not aware of any occasion.”

Commissioner: “Yes.  And so the applicant could have continued to work from home after 10 November and that wouldn’t have been any different to any other CSS employee, isn’t that correct?”

Mr Wilson: “That would be correct.”

[44] Consequently, I find that, as at 10 November 2021, there was not a valid reason for the dismissal.”

Marriott v Baptcare Limited (2022) FWC 300 delivered 28 April 2022 per Johns C