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 [2022] FWC 257

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. [2021] FWC 6669

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 [2022] FWC 355

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 [2021] FWC 5288

In this case, 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:

(1) 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.

(2) 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).

(3) 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.

For further information please contact:

Michael Byrnes, Partner
Phone: +61 2 9233 5544

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.