Unfair Dismissal and Vaccination

The last six months or so has seen a flood of unfair dismissal cases where employees have declined to become inoculated against Covid 19 and consequently lost their jobs. In many instances, the employer’s hands were tied by a public health order (PHO) yet they still had to go through the cost and stress of fighting the case.

In a recent decision concerning whether to extend time to lodge an application, when discussing the employee’s likelihood of success at trial, the FWC pointed out some facts attaching to this type of claim. The usefulness of these guidelines is that, if faced with a similar claim, an employer may be able to knock it out at an earlier stage.

The FWC made ten points that an employee in particular should note, in relation to a workplace subject to government directives. In summary these are:

– the FWC has no power to make a binding declaration about the validity of state or federal  legislation including health directives or orders made under state law;

– to date the courts have upheld the validity of directives/mandates and PHOs including requirements that workers in particular settings are vaccinated;

– alleged inconsistencies between state and federal law making PHOs constitutionally invalid have been rejected by the courts;

– at the time of the dismissal, the employer was barred by law from allowing the employee to attend the workplace, unless evidence of inoculation was provided (the implication being that to ignore this would have put the employer in breach);

– an employer’s requirement of an employee to comply with a PHO to keep their job is neither coercion to become vaccinated nor forcing the employee to participate in a medical trial;

–  incentives to encourage employees to be vaccinated are not coercion;

– employees are entitled to their views about vaccination and to refuse to be vaccinated, but that is a choice and to decline to do so under a legal requirement for entry to the workplace will result in the employee being legally excluded from the workplace;

– it might be a tough choice, but it’s still a choice;

– the vaccinations are approved under federal legislation and employers are not required to prove their safety or efficacy to employees or to FWC in the event of a dispute; and

– employers are not required to lobby governments to have directives revoked or amended before dismissing employees for non-compliance.

These guidelines were in the context of situations where the employer had no choice because of PHOs. However some of them can be of assistance when dealing with claims where vaccination is policy.

Mrs Eileen Owens v I-Med Radiology Ltd [2022] FWC 1823 (12 July 2022)