Two recent cases in the courts have shed further light on the interplay between vaccination mandates implemented by governments, and employment actions taken by businesses when staff do not comply with those actions. As the vaccine mandate discussion pivots to the role of boosters and the definition of ‘fully vaccinated’ these cases become even more relevant. This weeks HR Highlight Case Review will explore two of the most recent cases in this vital area.
Case Review – Sacked for failure to comply with government mandate
The Fair Work Commission has recently ruled that a business that dismissed an employee who refused to get government mandated flu vaccinations was not unfair.
The employee claimed that the business direction to be vaccinated against the flu amounted to unlawful coercion. The employee, an electrician at an aged care facility, understood the flu vaccination requirement and complied with the instruction to demonstrate evidence of flu vaccination in 2020 due to ‘fear of loosing the job’’. However, the employee argues that he did not understand that there would be an ongoing requirement to get annual flu vaccinations.
When the 2021 requirement was highlighted to the employee he argued that the direction was unlawful because the business did not provide ‘a compelling reason why mandatory vaccination was required to carry out electrical duties’.
Before the business dismissed the employee, for failure to follow lawful directions and meet inherent requirements of the role, the employee issued a notice to the business stating that he would not wear a mask or receive the flu vaccination unless it provided him with assurance of a compensation payment if he received any adverse impacts from the vaccine or the mask wearing, including $50m payment for his family in the event of his death and with assurance that the vaccine has been proven “100 per cent save and effective”. Further assurances that wearing a mask was not causing a “risk of bacterial infection by breathing in ones own expired breath”.
In dismissing the employees claim the Commissioner noted that “[business] Aged Care had no control over the requirement that [the employee] be vaccinated to work in aged care facilities” and that they clearly had “no power to alter, modify or challenge the Chief Health Officer issuing the direction”.
The employees claim was dismissed and the termination found lawful.
Case Review – Sacked for failure to comply with business mandate
In a similar case the Federal Court has recently refused to stop Qantas from terminating staff who refused to comply with a business mandate (as apposed to a government mandate) to show evidence of a COVID vaccination.
While the central case has not yet been decided – where the employees are arguing that the direction to be vaccinated was an unlawful and unreasonable direction – this decision made it clear that the courts disagree with the categorisation made by the employees that the termination amounts to unlawful industrial action.
Learnings for All Businesses
“It is part of the Australian justice system that decisions and requirements can be challenged, so it is not unexpected to see such challenges occurring. However, what we are seeing consistently and overwhelmingly, is that where a business is taking action against an employee because the employee did not comply with the law (like vaccine and mask mandates, that the business is acting lawfully. We are also seeing that where there are clear, articulated, risk based safety instructions, that come with complete consultation, the legal system is confirming that the businesses are acting compliantly” explains ACAPMAs Elisha Radwanowski.
“This should give businesses comfort as jurisdictions start discussing booster mandates and businesses navigate staff compliance again” adds Elisha.
Here to Help
HR Highlights are things to consider, implement and watch out for in your business. They are provided as general information for you to consider and do not constitute advice. You should seek further advice on your situation by contacting your legal advisor. ACAPMA members can access resources and receive advice, guidance and support from the ACAPMA employment professionals via firstname.lastname@example.org , it is free for members. ACAPMA Membership delivers this and more benefits, see; https://acapma.com.au/membership/ for more information.
Elisha Radwanowski BCom(HRM&IR)