Vaccination status and unfair dismissal

The Fair Work Commission has rejected a claim of unfair dismissal by an employee who declined to furnish the employer with his vaccination status, determining that his failure to do so amounted to failing to comply with a lawful and reasonable direction and therefore constituted misconduct which was a valid reason for dismissal.

“Consideration

[25] I have outlined the criteria set out in s.387 of the Act above. I am under a duty to consider each of these criteria in reaching my conclusion and will do so below.

Was there a valid reason for dismissal relating to Mr Benamar’s capacity or conduct? – s.387(a)

[26] In considering whether the dismissal of Mr Benamar was harsh, unjust or unreasonable, I am required to take into account whether there was a valid reason for the dismissal related to his capacity or conduct (including its effect on the safety and welfare of other employees). The reason or reasons should be “sound, defensible and well founded” 9 and should not be “capricious, fanciful, spiteful or prejudiced”.10

[27] In the Termination Letter dated 6 December 2021, the Respondent outlined it was terminating Mr Benamar’s employment because he was incapable of meeting the inherent requirements of the role for which he had been employed. The Termination Letter also included reference to the Respondent having given a lawful and reasonable direction for employees to provide evidence of vaccination in order for it to comply with “Victorian Legislation”. In the Form F3 – Employer response to unfair dismissal application and at the hearing, the Respondent asserted Mr Benamar failed to comply with a lawful and reasonable direction to produce evidence of COVID-19 vaccination information.

[28] At the hearing, Mr Benamar did not appear to question or challenge the legality of either the Construction Directions or the Local Government Worker Directions, nor their applicability to his employment. I observe that neither of the two sets of Directions have at any stage been declared invalid by a Court and versions of them were in effect at all material times. I therefore proceed on the basis that the Directions are valid and lawful and note the Commission must discharge its functions according to law.

[29] I am satisfied both sets of Directions, and specifically the COVID-19 Mandatory Vaccination (Specified Facilities) Directions (No 13) and COVID-19 Mandatory Vaccination (Workers) Directions (No 8) in force at the time of Mr Benamar’s dismissal, had application to the employment of Mr Benamar because he was a public sector worker under the Local Government Worker Directions and he was required from time to time to perform work at construction sites, as defined in the Construction Directions, such that he was subject to their application too.

[30] I have noted that Mr Benamar said that he had received the first dose of the COVID-19 vaccination on 2 December 2021, four days prior to his dismissal but that he was unable to inform the Respondent due to his stress and anxiety. However, Mr Benamar produced no evidence of having received this vaccination (or any subsequent vaccination) and nor am I satisfied he has produced medical evidence suggesting he was incapable of informing the Respondent. Regardless, even if I accept that Mr Benamar had received a first dose of a COVID-19 vaccination by 6 December 2021, he still would not have been considered even ‘partially vaccinated’ under either the Construction Directions or the Local Government Worker Directions. Further, both the Construction Directions and the Local Government Worker Directions required him to have been ‘fully vaccinated’ (i.e. to have received two doses of COVID-19 vaccination) by 26 November 2021. As things stood on the date of the dismissal, the Respondent did not “hold” vaccination information about Mr Benamar and was therefore required under the Directions to treat him as if he was ‘unvaccinated’.

[31] Version 8 of the Local Government Worker Directions required the Respondent to take all reasonable steps to ensure that its ‘unvaccinated’ workers did not work outside their ordinary place of residence and, relevantly, did not enter a construction site for the purposes of work. Further, Version 8 imposed an obligation on the Respondent to collect, record and hold vaccination information about workers who were or might be scheduled to work outside the worker’s ordinary place of residence. If the Respondent did not hold vaccination information about a worker, it was obliged to treat the worker as if the worker was ‘unvaccinated’. A refusal or failure by the Respondent to comply with a direction given to it or a requirement made of it under the Directions was an offence for which a penalty of 600 penalty units applied. 11

[32] As for Version 13 of the Construction Directions, they required the operator of a construction site at which Mr Benamar was required to attend as part of his employment to collect, record and hold vaccination information about him and to take reasonable steps to ensure he did not enter, or remain on their construction site for the purposes working there if he was unvaccinated. Again, a refusal or failure by the operator of a construction site to comply with a direction given to it or a requirement made of it under the Directions was an offence for which a penalty of 600 penalty units applied.

[33] Mr Benamar says he worked from home for a lengthy period during the periods of lockdowns and restrictions imposed by the Victorian Government, making only “very brief” visits of 10-minutes duration to site every second day which comprised only 5% of his total time working. While this may have been the case, Mr Benamar nevertheless had to be able to attend construction sites as part of his role. The duration of time Mr Benamar may have had to spend on a particular construction site is irrelevant. This is because:

  • the Local Government Worker Directions required the Respondent to take all reasonable steps to ensure that its ‘unvaccinated’ workers did not work outside their ordinary place of residence; and
  • the Construction Worker Directions required the operator of any construction site at which Mr Benamar was required to attend as part of his employment to collect, record and hold vaccination information about him and to take reasonable steps to ensure he did not enter, or remain on their construction site for the purposes of work if he was unvaccinated.

[34] Mr Benamar had to be able to attend construction sites from time to time in order to do his job. Having regard to these circumstances, I am satisfied that the Respondent had a valid reason for dismissing the ‘unvaccinated’ Mr Benamar on 6 December 2021 that was related to his capacity.

[35] As outlined above, the Respondent argued at the hearing that it had also given Mr Benamar a lawful and reasonable direction to produce ‘vaccination information’ in response to obligations imposed by the Local Government Worker Directions. In the First Show Cause Letter, the following direction was made to Mr Benamar:

“if you do not provide a response and evidence of compliance with the Public Health Directions within seven days, a decision about your employment will be made based on the information available. This may result in the termination of your employment without further notice.” 12

[36] In the recent decision in Roman v Mercy Hospitals Victoria Ltd 13 (Roman), Deputy President Colman discussed the concept of lawful and reasonable directions, as follows:

“Implied into the contract of employment is an obligation of an employee to obey the employer’s lawful and reasonable directions (Bayley v Osborne (1984) 4 FCR 141 at 145). The requirement that the direction be lawful has two dimensions. One is that the employer cannot demand that an employee act unlawfully. The other is that the direction must be within the scope of the contract of employment (see R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday and Sullivan (1938) 60 CLR 601 at 621-2 per, Dixon J). The latter reflects the ‘general rule … that a contract by which a person is employed in a specific character is to be construed as obliging him to render, not indeed all service that may be thought reasonable to render, but such service only as properly appertains to that character’ (see Commissioner for Government Transport v Royall (1966) 116 CLR 314 at 322, per Kitto J).” 14

[37] In Roman, the Deputy President identified two dimensions required in order for a direction to be lawful. As to them, I am firstly satisfied, for the reasons given above, that the direction given by the Respondent in the First Show Cause Letter did not require Mr Benamar to act unlawfully. Secondly, I am satisfied the direction was within the scope of Mr Benamar’s contract of employment. The Local Government Worker Directions imposed an obligation on the Respondent to take reasonable steps to ensure Mr Benamar did not work outside of his ordinary place of residence unless he had provided ‘vaccination information’ that established he was not ‘unvaccinated’. In seeking to comply, the Respondent made a direction related to Mr Benamar’s job because his compliance or non-compliance with the direction to provide ‘vaccination information’ bore upon his capacity to perform it. I agree with the view the Deputy President expressed in Roman that a direction to an employee to do something that is a necessary condition for a state of capacity to do their job is a lawful direction. 15

[38] As to whether this direction was reasonable, I am satisfied it was. The Local Government Worker Directions imposed new regulatory requirements for Mr Benamar’s role, and the direction given by the Respondent in light of them was directed towards Mr Benamar being able to continue to do the job he was hired to do. Mr Benamar was within his rights to decline to become vaccinated and he could elect to not provide the Respondent or a given principal contractor with the information they requested from him but having regard to the test enunciated by the Full Bench in CFMMEU and Anor v Mt Arthur Coal Pty Ltd 16 as to whether a direction is reasonable, I am satisfied there was a “logical and understandable basis”17 for the direction made by the Respondent.18 I also note Mr Benamar did not fall within any of the exceptions in either the Construction Directions or the Local Government Worker Directions.

[39] I am therefore satisfied that the Respondent also had a valid reason for dismissing Mr Benamar on 6 December 2021 which involved misconduct constituted by his refusal to follow a lawful and reasonable direction to provide vaccination information.

Notification of the valid reason – Opportunity to respond to any reason related to capacity or conduct – s.387 (b) and (c)

[40] Notification of a valid reason for termination should be given to an employee protected from unfair dismissal before the decision is made, 19 in explicit terms,20 and in plain and clear terms.21 In Crozier v Palazzo Corporation Pty Ltd22 a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 stated the following:

“[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”

[41] It was flagged with Mr Benamar as early as 30 September 2021 23 that, as a worker who was required to attend construction sites and supervise construction-related work, his employment may be at risk if he did not comply with requirements under the Directions. Mr Benamar was then notified in writing of the reason for his dismissal related to him being unable to meet the inherent requirements of his role in the two “show cause” letters from the Respondent dated 3 and 26 November 2021. The direction to Mr Benamar that he provide evidence of compliance with the Directions was made in the First Show Cause Letter dated 3 November 2021. Both “show cause” letters invited Mr Benamar to respond, however he did not take the opportunity to do so.

Unreasonable refusal by the employer to allow a support person – s.387(d)

[42] This factor is not relevant in this case. There was no evidence before me of an unreasonable refusal by the Respondent to allow Mr Benamar a support person at any material time.

Warnings regarding unsatisfactory performance – s.387(e)

[43] Mr Benamar’s dismissal was not related to unsatisfactory performance and therefore this factor is not a relevant consideration in this case.

Impact of the size of the employer on procedures followed – s.387(f) and Absence of dedicated human resources management specialist/expertise on procedures followed – s.387(g)

[44] The Respondent is a large employer that did not lack dedicated human resource management specialists and expertise. Therefore, I do not consider sections.387(f)) and (g) of the Act are relevant factors in this case.”

Benamar v Moreland City Council (2022) FWC 1273delivered 25 May 2022 per Clancy DP