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Mandatory workplace vaccination: Some recent COVID-19 vaccination cases

By Michael Byrnes, Partner, Swaab

  • In four recent cases the Fair Work Commission upheld the right of the employer to mandate COVID-19 vaccination and terminate the employment of employees who either fail to get vaccinated or do not have an applicable medical exemption.
  • As well as having a valid reason for termination, the employer must take all reasonable steps to ensure procedural fairness.
  • An employer may still be able to mandate vaccination in its workplace even if there is not an applicable government health order in place, provided the direction to give effect to such a mandate is lawful and reasonable.

Four recent Fair Work Com­mis­sion unfair dis­missal cas­es pro­vide insights into the legal posi­tion relating to manda­to­ry COVID-19 vac­ci­na­tion in the work­place. In short, in each of the four cas­es the Com­mis­sion upheld the right of the employ­er to man­date COVID-19 vac­ci­na­tion and ter­mi­nate the employ­ment of employ­ees who either fail to get vac­ci­nat­ed or do not have an applic­a­ble med­ical exemp­tion (sup­port­ed by evidence).

Mr Ross Bar­ry Edwards v Regal Cream Prod­ucts Pty Ltd

The appli­cant was employed by Regal Cream Prod­ucts Pty Ltd, trad­ing as Bul­la Dairy Foods (Bul­la), as a Mixed Plant Oper­a­tor. He was employed by Bul­la for 17 years. His employ­ment was ter­mi­nat­ed because he had cho­sen not to be vac­ci­nat­ed against COVID-19 which was a require­ment under Victo­ri­an Gov­ern­ment pub­lic health direc­tions. The employ­ee brought unfair dis­missal pro­ceed­ings in rela­tion to the ter­mi­na­tion of his employment.

The appli­ca­tion was unsuc­cess­ful, with Com­mis­sion­er O’Neill find­ing that the dis­missal was not unfair. Vic­to­ri­an Gov­ern­ment direc­tions pro­hib­it­ed the employ­ee from per­form­ing work on the premises of Bul­la from 15 Octo­ber 2021 unless he was either par­tial­ly vac­ci­nat­ed or had a valid medical exemp­tion. He had nei­ther. The med­ical cer­tifi­cate he pro­vid­ed did not address the necessary mat­ters. The effect of this was that he could not ful­fil his role (which could only be performed on site) and there were no suit­able alter­na­tive duties he could under­take. As such, Bul­la had a sound, defen­si­ble and well-found­ed rea­son to ter­mi­nate his employment.

The appli­cant sub­mit­ted that he should have been allowed to take long ser­vice leave, which would have effec­tive­ly deferred any deci­sion on ter­mi­na­tion of employ­ment. The Com­mis­sion held how­ev­er that Bul­la had rea­son­able busi­ness grounds upon which to refuse his request to take long ser­vice leave and that even if he had been grant­ed long ser­vice leave, indi­ca­tions were that it would not have led to a dif­fer­ent out­come (as the rel­e­vant direc­tions would still be in place at the end of the long service leave period).

As well as hav­ing a valid rea­son for ter­mi­na­tion, the employ­er took all rea­son­able steps to ensure proce­dur­al fair­ness. The appli­cant was giv­en an oppor­tu­ni­ty to respond to Bul­la’s con­cerns about his vac­ci­na­tion sta­tus, and he availed him­self of that oppor­tu­ni­ty. Ulti­mate­ly, while Bul­la acknowl­edged issue it was a dif­fi­cult issue for many peo­ple, it was required to fol­low the gov­ern­ment directions.

Com­mis­sion­er O’Neill summed up at para­graph 43 stating:

‘Bul­la offered sig­nif­i­cant assis­tance and sup­port in cir­cum­stances that were very dif­fi­cult for all involved, and it is dif­fi­cult to fault its approach. The com­pa­ny act­ed with empa­thy and care and was respect­ful of Mr Edwards’ con­cerns about being vac­ci­nat­ed. How­ev­er, ulti­mate­ly Mr Edwards was unable to meet the inher­ent require­ments of his role, and his employ­ment was ter­mi­nat­ed as Bul­la had no option but to com­ply with the Directions.’

Floors Aucamp v Asso­ci­a­tion for Chris­t­ian Senior Cit­i­zens Homes Inc

In the ear­li­er case of Floors Aucamp v Asso­ci­a­tion for Chris­t­ian Senior Cit­i­zens Homes Inc [2021] FWC 6669, Deputy Pres­i­dent Clan­cy took a sim­i­lar approach to that sub­se­quent­ly tak­en by Com­mis­sion­er O’Neill. In short, his Hon­our held that the dis­missal of the appli­cant was not unfair; the employ­er had a valid rea­son for ter­mi­na­tion as the employ­ee did not have the capac­i­ty to con­tin­ue per­form­ing his job as a main­te­nance man­ag­er as he was unvaccinated.

This was due to the oper­a­tion of vac­ci­na­tion direc­tions made by the Vic­to­ri­an Gov­ern­ment, which would have made it an offence for the employ­ee to con­tin­ue to per­form his work, leav­ing the employ­er poten­tial­ly liable to penal­ty under applic­a­ble health leg­is­la­tion. Deputy Pres­i­dent Clan­cy not­ed (at 23):

‘At no stage did the Respon­dent issue a direc­tion to Mr Aucamp requir­ing him to become vac­ci­nat­ed. Hav­ing received Mr Aucamp’s advice that he would not be get­ting vac­ci­nat­ed on 11 Octo­ber 2021, the Respon­dent pro­ceed­ed to ter­mi­nate his employ­ment three days lat­er. The ter­mi­na­tion was on the basis that the Vac­ci­na­tion Direc­tions pro­hib­it­ed the Respon­dent from per­mit­ting Mr Aucamp to work as Main­te­nance Man­ag­er at the Ebenez­er retire­ment vil­lage and there­fore he could not law­ful­ly perform his role from 15 Octo­ber 2021.’

As such, the employ­er’s response was pas­sive — it was a con­duit, sim­ply giv­ing effect to the Victorian Gov­ern­ment vac­ci­na­tion directions.

The Com­mis­sion also found that the appli­cant had been noti­fied of the rea­son for ter­mi­na­tion of employ­ment and, impor­tant­ly, been giv­en an oppor­tu­ni­ty to respond before ter­mi­na­tion was effect­ed (even though the employ­er was mere­ly giv­ing effect to the gov­ern­ment direc­tions). The process was rel­a­tive­ly brief, but suf­fi­cient. Deputy Pres­i­dent Clan­cy held (at 25):

‘I am sat­is­fied that the fore­shad­owed manda­to­ry vac­ci­na­tion require­ments and the pos­si­bil­i­ty that Mr Aucamp could no longer be employed if he was not vac­ci­nat­ed was dis­cussed by the par­ties on 4 Octo­ber 2021. I am also sat­is­fied that by pro­vid­ing Mr Aucamp with a copy of the Vac­ci­na­tion Direc­tions on 8 Octo­ber 2021 and in the accom­pa­ny­ing email, the Respon­dent pro­vid­ed noti­fi­ca­tion to Mr Aucamp that if he chose not to get vac­ci­nat­ed, he would not be able to work at Ebenez­er Retirement Vil­lage. The text of the email dat­ed 8 Octo­ber 2021 also indi­cates Mr Aucamp was giv­en an oppor­tu­ni­ty to respond, which he sub­se­quent­ly took up in the reply email he sent to Mr Mor­gan on 11 Octo­ber 2021. Mr Aucamp stat­ed he would not be get­ting vac­ci­nat­ed, and the email also indicates that he was alive to the pos­si­bil­i­ty his employ­ment may be ter­mi­nat­ed as a result. I am there­fore sat­is­fied that the con­sid­er­a­tions in ss 387(b) and (c) of the Act were met.’

In his sub­mis­sions the appli­cant had raised argu­ments cast­ing doubt on the effi­ca­cy of COVID-19 vac­ci­na­tion and the legal­i­ty and valid­i­ty of the Vic­to­ri­an Gov­ern­ment vac­ci­na­tion direc­tions, cit­ing ​’a num­ber of codes, covenants and dec­la­ra­tions’. Ulti­mate­ly, how­ev­er, as not­ed above, his views on COVID-19 vac­ci­na­tion and he gov­ern­ment direc­tions relat­ing to vac­ci­na­tion were irrel­e­vant as the employ­er itself had no choice but to com­ply with those direc­tions. As Deputy Pres­i­dent not­ed (at 33):

‘The Vac­ci­na­tion Direc­tions were not a change pro­posed by the Respon­dent. In truth, Mr Aucamp’s griev­ance lies with the deci­sion of the Vic­to­ri­an Government’s Act­ing Chief Health Offi­cer. Both parties were con­scious of the predica­ment the oth­er found them­selves in as a result of the Vaccination Direc­tions and I con­sid­er their var­i­ous exchanges were respect­ful and with­out ran­cour. The Respon­dent was aware of Mr Aucamp’s posi­tion regard­ing vac­ci­na­tion and acknowl­edged the impact the Vac­ci­na­tion Direc­tions would have on him. Mr Aucamp regards the Vac­ci­na­tion Direc­tions as illegal and dis­crim­i­na­to­ry, but he acknowl­edged they imposed oblig­a­tions on the Respon­dent. While Mr Aucamp expressed con­cern about the speed of the process that result­ed in his dis­missal and had the oppor­tu­ni­ty under the Vac­ci­na­tion Direc­tions to make a book­ing to receive a COVD-19 vac­cine by 22 Octo­ber 2021, his posi­tion on the require­ment to be vac­ci­nat­ed has not changed at any point since 11 Octo­ber 2021. More­over, he says that he has had no sec­ond thoughts about refusing to get vaccinated.’

Tak­ing account of these, and the oth­er rel­e­vant fac­tors, Deputy Pres­i­dent Clan­cy found the dis­missal was not harsh, unjust or unrea­son­able and there­fore not unfair.

Peter Bate­son v Ven­tu­ra Tran­sit Pty Ltd

In the recent deci­sion of Peter Bate­son v Ven­tu­ra Tran­sit Pty Ltd [2022] FWC 355 (hand­ed down on 28 Feb­ru­ary 2022), Deputy Pres­i­dent Ander­son took a sim­i­lar approach to Com­mis­sion­er O’Neill and Deputy Pres­i­dent Clan­cy. This case also relat­ed to the employ­er response to Vic­to­ri­an Government vac­ci­na­tion direc­tions. The appli­cant was a bus dri­ver who did not receive a COVID-19 vacci­na­tion before the dead­line of 15 Octo­ber 2021.

As not­ed at para­graph 38 of the judgment:

‘On 14 Octo­ber 2021 (the day before the stand down took effect) Mr Bate­son drove to the Dan­de­nong depot and hand deliv­ered a three-page let­ter respond­ing to Ventura’s notice of 1 Octo­ber 2021. In this let­ter Mr Bate­son set out his views on the man­date includ­ing claims that the vac­cine was experimental, was not safe­ly test­ed, was pro­duced by com­pa­nies with a his­to­ry of crim­i­nal con­duct, was a breach of human rights and was being imposed as a term of his employ­ment to which he had not agreed. Mr Bate­son attached what he claimed was a deci­sion of the Com­mis­sion (it was a dis­sent in a full bench decision).’

After 15 Octo­ber 2021, the date the vac­ci­na­tion man­date came into effect, the appli­cant was not rostered to work. His employ­ment was ter­mi­nat­ed on 26 Octo­ber 2021, along with a num­ber of oth­er dri­vers who did not get vac­ci­nat­ed, although due to an error in the email address the employ­er had on file for him he did not receive the notice of ter­mi­na­tion of his employ­ment until 5 Novem­ber 2021.

Deputy Pres­i­dent Ander­son held that there was a valid rea­son for ter­mi­na­tion. Giv­en the vac­ci­na­tion direc­tions the employ­ee was not able to ful­fil the require­ments of his job as a bus dri­ver. Fur­ther, there was no indi­ca­tion the direc­tions would only apply for a short dura­tion and it was not a reasonable option for the employ­er to main­tain the sus­pen­sion of the employ­ee with­out pay. His Hon­our also not­ed (at 73):

‘That Mr Bate­son believed the Direc­tions to be unlaw­ful or vac­cines against COVID-19 to be unsafe or exper­i­men­tal does not alter this posi­tion. There is no evi­dence before me of unlaw­ful­ness. It was a Direc­tion made by a statu­to­ry offi­cer under State leg­is­la­tion that the employ­er was enti­tled to regard as law­ful. If Mr Bate­son con­sid­ers the instru­ment unlaw­ful, he is enti­tled to press that view before a court of com­pe­tent juris­dic­tion such as the Supreme Court of Vic­to­ria. The Com­mis­sion has no jurisdic­tion to rule on such mat­ters. Ven­tu­ra did not have the lib­er­ty to pick or choose whether to comply with the Direc­tions. They had been man­dat­ed. As observed by a full bench of the Com­mis­sion in DA v Bap­tist Care SA

‘Unfair dis­missal pro­ceed­ings under Pt 3–2 of the FW Act do not pro­vide an avenue to revis­it that policy choice or to assign respon­si­bil­i­ty for the inevitable con­se­quences of the leg­isla­tive scheme to employ­ers who are bound by it.’

Even though the appli­cant was giv­en an oppor­tu­ni­ty to respond, it was less than ide­al as he did not receive much of the cor­re­spon­dence from the employ­er due to the wrong email address being used (a les­son in itself when com­mu­ni­ca­tion with employ­ees is imper­a­tive). In this regard Deputy Pres­i­dent Ander­son held (at 90):

‘Con­sid­ered over­all, Mr Bate­son had an oppor­tu­ni­ty to respond to the risk that remain­ing unvac­ci­nated pre­sent­ed to his job secu­ri­ty, and he did so in writ­ing twelve days pri­or to dis­missal. How­ev­er, the fact he was unaware (due to an incor­rect email address in Ventura’s records) of the fur­ther opportu­ni­ty to meet face-to-face and con­front the blunt real­i­ties of his posi­tion, weighs some­what, but only some­what, in favour of a find­ing of unfairness.’

In weigh­ing up all the rel­e­vant fac­tors, includ­ing bal­anc­ing the valid rea­son for ter­mi­na­tion with defi­cien­cies in pro­ce­dur­al fair­ness, Deputy Pres­i­dent Ander­son con­clud­ed (at 109):

‘Con­sid­ered over­all, and weigh­ing rel­e­vant fac­tors, whilst Mr Bate­son has cause to feel aggriev­ed about ele­ments of the dis­missal process, I con­clude that the pro­ce­dur­al fail­ures when viewed in context do not out­weigh what was a valid rea­son for dis­missal. Only if Mr Bate­son had been vaccinated by the pre­scribed dead­line could he have rea­son­ably con­tin­ued to be employed by Ventura dri­ving its bus­es giv­en the oblig­a­tion the com­pa­ny had to com­ply with the Direc­tions. I am not sat­is­fied that a mate­r­i­al change in Mr Bateson’s posi­tion would have been a like­ly con­se­quence had he attend­ed a face-to-face pre-dis­missal meet­ing. Fur­ther, the delay in noti­fi­ca­tion post-deci­sion, had it not hap­pened or been for a less­er peri­od, would not have altered the employer’s oblig­a­tion to comply with the Direc­tions and thus its deci­sion to dismiss.’

Maro­la Amin v Main­freight Dis­tri­b­u­tion Pty Ltd

In Marola Amin v Mainfreight Distribution Pty Ltd [2021] FWC 5288, an assert­ed reli­gious objec­tion to vac­ci­na­tion was con­sid­ered in the con­text of an appli­ca­tion for an unfair dis­missal claim to be accept­ed out of time. In deter­min­ing such appli­ca­tions in unfair dis­missal mat­ters, which are only grant­ed where there are excep­tion­al cir­cum­stances, the Commis­sion exam­ines the sub­stan­tive mer­its of the claim.

Once again, vac­ci­na­tion direc­tions from the Vic­to­ri­an Gov­ern­ment applied to the appli­cant in her role as ​’Cus­tomer Cham­pi­on’ with the busi­ness. In the course of cor­re­spon­dence between the appli­cant and the com­pa­ny in rela­tion to the imple­men­ta­tion of the direc­tions, the employ­ee pro­vid­ed a document described as a ​’reli­gious exemp­tion state­ment’. This assert­ed that her sin­cere­ly held religious belief (as a Cop­tic Chris­t­ian) pre­vent­ed her from receiv­ing a COVID-19 vac­ci­na­tion. As the pre­sid­ing mem­ber, Com­mis­sion­er Wil­son, observed (at 13):

‘She is a Cop­tic Chris­t­ian hold­ing strong views about abor­tion with an under­stand­ing that the manufac­tur­ers of the COVID shots have used abort­ed foetal cell lines as part of their devel­op­ment or test­ing of vaccines.’

In response to this, the employer:

‘… reject­ed Ms Amin’s reli­gious exemp­tion con­tentions, not­ing that such does not fall with­in any of the valid exemp­tions of the Direc­tions and that it con­sid­ered it had no option oth­er than to com­ply with the Direc­tions. Main­freight also reject­ed the pos­si­bil­i­ty of Ms Amin work­ing from home.’

It was fur­ther not­ed in the judg­ment (at 18):

‘Main­freight acknowl­edges that dur­ing the con­sul­ta­tion peri­od Ms Amin informed them that she was unable to be vac­ci­nat­ed due to her reli­gious beliefs. Mr Vree­burg sub­mit­ted that they con­sid­ered how this might be accom­mo­dat­ed but had no avail­able suit­able roles which the Appli­cant could under­take from home.’

As not­ed above, in deter­min­ing the out of time appli­ca­tion the sub­stan­tive mer­its of the case need to be con­sid­ered. Com­mis­sion­er Wil­son did so at 31:

‘The dis­pute between the par­ties is whether Main­freight was actu­al­ly required by law to seek evi­dence from its employ­ees that they had been vac­ci­nat­ed and refuse them work if not, or alter­na­tive­ly whether it was rea­son­able for Main­freight to decline to allow Ms Amin to work from home. The facts per­tain­ing to these con­tentions are not great­ly in con­test, how­ev­er the deci­sions made by Main­freight as a con­se­quence are. For Ms Amin to be suc­cess­ful in her case she would have to estab­lish either that the Direc­tions did not have effect in her cir­cum­stances or that her work could be done from home and that Main­freight act­ed unrea­son­ably in not allow­ing her to do so. On the basis of the mate­r­i­al present­ly before the Com­mis­sion it is unlike­ly that these things could be demon­strat­ed. Ms Amin’s case is best described in these regards as weak, and not in the ​‘high­ly mer­i­to­ri­ous’ cat­e­go­ry referred to above.’

As such, when this and the oth­er rel­e­vant fac­tors were con­sid­ered, the employ­ee was not able to demon­strate the ​’excep­tion­al cir­cum­stances’ need­ed for the Com­mis­sion to grant an exten­sion of time, and the unfair dis­missal appli­ca­tion was dis­missed accordingly.

The lessons

Some lessons from these four cases:

Where a gov­ern­ment health order is in place, mak­ing it an offence for the employ­er to allow an unvac­ci­nat­ed employ­ee (with­out an applic­a­ble med­ical con­traindi­ca­tion sup­port­ed by evi­dence) to enter the work­place to per­form work, the Com­mis­sion will accept that the employ­er has no effec­tive choice but to com­ply with the gov­ern­ment order.

Before ter­mi­nat­ing the employ­ment of an unvac­ci­nat­ed employ­ee who is the sub­ject of a health order, the employ­er should con­sid­er whether there are viable alter­na­tives to dis­missal. These include whether the employ­ee can per­form their usu­al duties from home rather than the work­place, whether there are alter­na­tive duties the employ­ee might be able to per­form from home (work gen­uine­ly need­ing to be per­formed, not ​’make-work’ tasks), or whether the employ­ee can access accrued paid leave or be grant­ed a peri­od of unpaid leave which might keep the employ­ment on foot until the gov­ern­ment health order changes (although that is, in almost all of these cas­es, a for­lorn hope).

It is impor­tant the employ­er gives the employ­ee an oppor­tu­ni­ty to sug­gest solu­tions to the prob­lem posed by the gov­ern­ment health order (such as work­ing from home, alter­na­tive duties or leave) and con­sid­er those mat­ters before mak­ing a deci­sion to ter­mi­nate employ­ment. Employ­ees who use that oppor­tu­ni­ty to argue that any form of manda­to­ry vac­ci­na­tion is a breach of human rights prin­ci­ples, that COVID-19 vac­cines are dan­ger­ous, inef­fec­tive or part of a gov­ern­ment con­spir­a­cy, or that the gov­ern­ment health order is invalid or ille­gal (absent a court find­ing to that effect) is like­ly squan­der­ing that opportunity.

Final­ly, it should be not­ed that an employ­er may still be able to man­date vac­ci­na­tion in its work­place even if there is not an applic­a­ble gov­ern­ment health order in place, pro­vid­ed the direc­tion to give effect to such a man­date is law­ful and rea­son­able. That sit­u­a­tion will no doubt be con­sid­ered fur­ther by the Com­mis­sion cas­es to come.

Michael Byrnes can be contacted on (02) 9233 5544 or by email at mjb@swaab.com.au

Material published in Governance Directions is copyright and may not be reproduced without permission. The views expressed therein are those of the author and not of Governance Institute of Australia. All views and opinions are provided as general commentary only and should not be relied upon in place of specific accounting, legal or other professional advice.

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