Vaccinations and the workplace; the last fair work word?

The circumstances in which the Fair Work Commission in an unfair dismissal case may factor in steps which an employer may or should have taken to accommodate the personal concerns of an employee about submitting to the covid vaccinations are demonstrated in this passagee from a decision.

“ I note the comments of Hatcher VP in Rowe v Commissioner for Public Employment (Northern Territory) (Rowe), 7 where Mr Rowe, who appeared as a witness in these proceedings, was also suspended for 3 months and subsequently terminated:

“[81] As to the second matter, it might be said that, having suspended Mr Rowe without pay for a period of three months in response to his failure to comply with the CHO Directions, there was no need or purpose to dismiss him prior to the expiration of the period of suspension.

[82] These matters are of potential relevance to the fairness or otherwise of the dismissal because Mr Rowe submits that he had not made a positive decision to refuse to be vaccinated, that he had legitimate concerns about risks associated with taking the mRNA vaccines that had been approved at the relevant time, and that he wished to reflect upon his position and work through his concerns away from the pressures of work and, perhaps, to wait for the approval and availability of the Novavax vaccine.

[83] If I were satisfied that there was a serious possibility that Mr Rowe may have reconsidered his position and ultimately agreed to be vaccinated if he had been allowed to take his pre-approved leave without being required to be vaccinated beforehand, I would be inclined to the view that his dismissal effective from 6 December 2021 was premature and harsh. I would similarly be inclined to this view if I considered that there was a serious possibility that Mr Rowe might have taken the Novavax vaccine (which was approved and available by mid-February 2022, as earlier stated) had PWC had stayed its hand whilst Mr Rowe was on suspension without pay. Matters that would support a conclusion of that nature include that the CHO Directions were introduced at relatively short notice, and that it is understandable that some persons may be hesitant to take the vaccine in the face of the significant amount of disinformation about vaccination being peddled in social media and elsewhere in the public sphere.

[84] However, ultimately, I do not consider that there was ever a real possibility that Mr Rowe would agree to vaccination, and I do not accept his evidence to the contrary..”

(My emphasis)

I have taken this into account.”

Eres v The Commissioner For Public Employment (2022) FWC 2793 delivered 3 November 2022 per Riordan C