Vaccinations in the workplace

Here is an extract from a recent unfair dismissal case in the Fair Work Commission in which the Commission concluded that the termination of the employment of an employee was not relevantly unfair in the context of the employee failing to become vaccinated against covid 19 which was required by the employer’s policies. What is a little novel about this case is that the employer’s policy does not appear to have been based upon by a State government health mandate prohibiting the entry to a workplace of an unvaccinated employee, which has been the case in the overwhelming number of unfair dismissal cases arising from vaccination issues in Australian workplaces.

“Jurisdictional objection

[29] Rentokil maintained a jurisdictional objection, asserting that there was no dismissal because Mr Nekho either repudiated his contract of employment or abandoned his employment by failing to be vaccinated. In my view neither proposition is correct or helpful.

[30] The long and the short of it is that the employer issued a direction to the employee: to be vaccinated or face the likely consequence of dismissal. When the employee did not comply with the employer’s direction, the termination of employment was at the initiative of the employer. Moreover, statements such as the following do not reflect the legal realities of the situation:

“Should you not provide us with evidence of your first vaccination taken by 12 November 2021 and agreed to get fully vaccinated, Rentokil could consider this as you having brought the employment to an end.”

[31] Rentokil decided to issue a direction, enforceable by dismissal, because it thought that compliance with the direction was important enough that it was prepared to bring about the end of the employment of those who did not follow the direction. In this regard, to issue something less than a direction would be to merely issue a request, or to encourage but not require particular conduct, and employees would have the option of accepting or rejecting the request. That is not to say that every time an employer issues a direction it potentially initiates the termination of an employment.

[32] While each employee subject to the direction has some control over the outcome (by getting vaccinated or not), it is not the employee in the sequence who has brought the employment to an end.

Consideration

[33] I am required by s.387 of the FW Act to take into account the following matters in determining whether Mr Nekho’s dismissal was harsh, unjust or unreasonable:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.

[34] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me. I set out my consideration of each below.

Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?

[35] To be a valid reason, the reason for the dismissal should be sound, defensible or well founded, and should not be capricious, fanciful, spiteful or prejudiced. In assessing the validity of any reason(s) for dismissal the Commission will not stand in the shoes of the employer and determine what the Commission would do in the same position.

[36] The reason for dismissal was Mr Nekho’s failure to be vaccinated by the deadline set by Rentokil in its Vaccination Policy. The direction within the Policy is said to be a lawful and reasonable direction to Mr Nekho.

[37] Mr Nekho argued that the consultation prior to the implementation of the Vaccination Policy was deficient, relying upon the Full Bench decision in In CFMMEU v Mt Arthur Coal Pty Ltd 1 (“Mt Arthur Coal”). Mr Nekho says that Rentokil is obliged to retract the policy, because of deficiencies in its consultation with the wider workforce and, if Rentokil wants to introduce a mandate, conduct different (and inferentially better) consultation.

[38] In Mt Arthur Coal the Full Bench found that the site access requirement/vaccine mandate was prima facie lawful because it was a requirement to protect the health and safety at work and fell within the scope of the employment and there is nothing ‘illegal’ or unlawful about becoming vaccinated. 2

[39] The Full Bench found that the direction within the site access policy was not reasonable because of deficiencies in Mt Arthur’s consultation. This finding needs to be understood in the following context. In that matter a direction had been given to the workforce at the site, but consultation had not been adequate prior to when the direction was issued. The direction was challenged and Mt Arthur provided an undertaking not to implement the outcome of any disciplinary process associated with any employee’s refusal to comply with the Site Access Requirement pending the resolution of the proceedings in the Commission. 3

[40] The Full Bench found that the original direction was not reasonable, solely because of the deficiencies in the consultation process, and identified the way forward to be further consultation in a short period of time before the site access requirements could be imposed. That is, the earlier deficiencies were not incurable and did not render the vaccination direction forever unenforceable. The Full Bench contemplated and effectively endorsed the possibility that exactly the same direction could be issued/enforced once adequate consultation had occurred.

[41] After the Full Bench decision, Mt Arthur did undertake further consultation in a short period of time and then announced to all employees that it had made the decision to introduce the site access requirements. On the same day the decision was announced Mt Arthur gave stood down employees a further seven days to consider whether they would comply with the new site access requirement. 4

[42] By the time Mr Nekho’s employment ended Rentokil had consulted extensively with him. As Mr Nekho conceded in cross-examination, he was given the opportunity to make any submissions he wanted to make, to request information and to receive answers to his questions. Whatever deficiencies there might have been in Rentokil’s consultation with its wider workforce, those deficiencies were cured for Mr Nekho by the time Rentokil moved on its direction.

[43] The vaccine policy was otherwise reasonable in light of Rentokil’s national operation, the variability of the vaccination requirements across its national operation, and the specific needs of some of Rentokil’s customers such as aged care facilities, hospitality venues and the like.

[44] I find that the direction contained within Rentokil’s Policy was lawful and reasonable.

[45] Mr Nekho says that his daughter is immunocompromised and therefore the risk of Mr Nekho attending the office, contracting COVID-19 and bringing a virus back to his house means that he should be allowed to work exclusively from home. Mr Nekho provided no medical evidence to support this risk and in his communications in 2020 and 2021 he refers to his daughter being under 12 and unable to be vaccinated. It is not clear whether the daughter could not be vaccinated because of age restrictions at the time, or because of her condition. In any event, Mr Nekho’s argument only works for him if he never leaves home for any purpose at all. Otherwise it seems incontrovertible that the risk of Mr Nekho bringing the COVID-19 virus into his home was significantly greater in 2021 if he was not vaccinated.

[46] Overall I find that there was a valid reason to terminate Mr Nekho’s employment connected to Mr Nekho’s capacity or conduct.

Was the Applicant notified of the valid reason?

[47] Section 387(b) requires me to take into account whether Mr Nekho “was notified of that reason.” Sections 387(b) and (c) direct the FWC’s inquiry to matters of procedural fairness. In general terms a person should not exercise legal power over another, to that person’s disadvantage and for a reason personal to him or her, without first affording the affected person an opportunity to present a case. 5

[48] In context, the inquiry to be made under s.387(b) is whether the employee was “notified” of that reason before the employer made the decision to terminate. The reference to “that reason” is a reference to the valid reason(s) found to exist under s.387(a) and the reference to being “notified” is a reference to explicitly putting the reasons to the employee in plain and clear terms.

[49] Rentokil notified Mr Nekho of the valid reason for his dismissal on 17 December 2021.

Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct?

[50] Mr Nekho was given a proper opportunity to respond to the allegations against him.

Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?

[51] This factor is not a relevant consideration in this matter. Mr Nekho insisted that the communication between himself and Rentokil was by email.

Was the Applicant warned about unsatisfactory performance before the dismissal?

[52] As the dismissal did not relate to unsatisfactory performance, strictly speaking this factor is not relevant to the present circumstances.

To what degree would the size of the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?

[53] Neither party submitted that the size of Rentokil’s enterprise was likely to impact on the procedures followed in effecting the dismissal and I find that the size of Rentokil’s enterprise had no such impact.

To what degree would the absence of dedicated human resource management specialists or expertise in the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?

[54] Rentokil enterprise does not lack dedicated human resource management specialists.

What other matters are relevant?

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

[56] There are two matters to consider under this heading. Firstly, Mr Nekho submits that even if the Policy was lawful and reasonable, he says that his job could be performed satisfactorily from home and that it was unfair to insist that he attend the workplace in the circumstances. This argument is distorted by the fact that the circumstances of the pandemic required or permitted Mr Nekho to work from home between March 2020 and when he was dismissed in December 2021.

[57] Like most employers in the country, Rentokil had to adapt to ever-changing circumstances including having employees work from home because there was no alternative. Rentokil did not submit that allowing Mr Nekho to continue working from home was unworkable. Rather, Rentokil maintains that in a post-lockdown world, it is necessary for Mr Nekho to attend the head office from time to time and within Rentokil’s prerogative to require him to do so.

[58] This argument does not support Mr Nekho’s case.

[59] Secondly, Mr Nekho argues that it was otherwise unfair to insist that he was to be vaccinated by December 2021 when in fact all relevant employees were working from home because of delays in the refurbishment of head office. There is merit to this argument. Rentokil required Mr Nekho to be vaccinated because of safety concerns when Mr Nekho, and every other employee, attends the workplace. Mr Nekho was not otherwise required to attend the workplace until the refurbishment was complete.

[60] In my view it was unreasonable to dismiss Mr Nekho on 17 December 2021 because at this stage, Mr Nekho was not required to attend the workplace in any event. I appreciate that Rentokil was overseeing the implementation of a new and significant policy and needed to nominate a specific date by which employees must be vaccinated. However there was no rational basis for insisting that Mr Nekho be vaccinated by a date significantly earlier than the date all staff were due to resume at the refurbished premises.

[61] Employees did not return to the head office premises until 10 January 2022. It was unreasonable to dismiss Mr Nekho before this date.

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

[62] 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.

[63] I find that the dismissal of Mr Nekho was, in the circumstances, unreasonable.

[64] Most factors point towards the dismissal not being unfair. The only factor that supports a finding that the dismissal was unfair was the fact that Rentokil insisted upon dismissing Mr Nekho and a time when Mr Nekho was not required to attend the office.

[65] Having considered each of the matters specified in section 387 of the FW Act, and by the smallest of margin, I am satisfied that the dismissal of Mr Nekho was unfair.

Remedy – Compensation

[66] Being satisfied that Mr Nekho made an application for an order granting a remedy under s.394, was a person protected from unfair dismissal and was unfairly dismissed within the meaning of s.385 of the FW Act, I may order Mr Nekho’s reinstatement, or the payment of compensation to him, subject to the FW Act.

[67] It is not appropriate to order Rentokil to reinstate Mr Nekho.

Is an order for payment of compensation appropriate in all the circumstances of the case?

[68] Having found that reinstatement is inappropriate, it does not automatically follow that a payment for compensation is appropriate. The question whether to order a remedy remains a discretionary one. 6

[69] Where an applicant has suffered financial loss as a result of the dismissal, this may be a relevant consideration in the exercise of this discretion. 7

[70] Mr Nekho was given four weeks’ pay in lieu of notice of termination.

[71] At the time Mr Nekho was dismissed Rentokil expected employees to return to the office less than four weeks after the termination date. It was open to Rentokil to give Mr Nekho four weeks’ notice and to allow him to serve out the notice working from home. If Rentokil had done so then Mr Nekho’s employment would have extended until 10 January 2022.

[72] In all the circumstances, I am not satisfied that an order for payment of compensation is appropriate given that even if his employment had continued until 10 January 2022 he would be no better off.

Conclusion

[73] In conclusion I find that the dismissal of Mr Nekho was unfair, but only because Rentokil should have allowed Mr Nekho to continue working from home until the reopening of the head office premises on 10 January 2022.

[74] I do not make any order for a remedy because, in my view, Mr Nekho did not suffer any loss arising from the unfairness identified above.

[75] I will otherwise make an order dismissing Mr Nekho’s application. 8

Nekho v Rentokil Initial Pty Ltd (2022) FWC 1632 delivered 24 June 2022 per Easton DP