The workplace vaccine mandate myth buster case

In the recent Fair Work Com­mis­sion deci­sion of Eileen Owens v I-Med Radi­ol­o­gy Ltd [2022] FWC 1823, an inter­locu­to­ry judg­ment con­sid­er­ing whether an unfair dis­missal appli­ca­tion had been filed with­in the required 21 days, Deputy Pres­i­dent Asbury sur­veyed recent cas­es deal­ing with manda­to­ry work­place COVID-19 vac­ci­na­tion and very help­ful­ly set out prin­ci­ples emerg­ing from those deci­sions rel­e­vant to a require­ment for employ­ees to be vac­ci­nat­ed in work­places which are sub­ject to gov­ern­ment directives.

The prin­ci­ples, many of which put paid to some of the eso­teric argu­ments run by, or on behalf of, those who main­tain a fun­da­men­tal philo­soph­i­cal objec­tion to COVID-19 vac­ci­na­tion, are as fol­lows (repro­duced ver­ba­tim?-?at para­graph 46 of the judgment):

1. The Fair Work Com­mis­sion is not a Court and has no pow­er to make a bind­ing dec­la­ra­tion about the valid­i­ty of State or fed­er­al leg­is­la­tion includ­ing health direc­tives or orders made pur­suant to State legislation.

2. At the time of the Applicant's dis­missal and to date, Aus­tralian Courts have upheld the valid­i­ty of directives/mandates and pub­lic health orders issued by State Gov­ern­ments in response to the COVID - 19 Pan­dem­ic includ­ing require­ments that work­ers in par­tic­u­lar set­tings are vaccinated.

3. The argu­ment that directives/mandates and pub­lic health orders issued by State Gov­ern­ments are incon­sis­tent with fed­er­al law and are invalid because of s.109 of the Con­sti­tu­tion has been reject­ed by Aus­tralian Courts.

4. At the point the Appli­cant was dis­missed, she was sub­ject to the require­ments of a Pub­lic Health Order issued by the Queens­land Gov­ern­ment and the Respon­dent was pro­hib­it­ed by law from allow­ing her to attend the work­place unless she pro­vid­ed evi­dence of vaccination.

5. A require­ment that the Appli­cant com­ply with the Pub­lic Health Order by receiv­ing a vac­cine, to con­tin­ue to work for an employ­er, does not involve coer­cion or forc­ing the Appli­cant to par­tic­i­pate in a med­ical trial.

6. Incen­tives to encour­age employ­ees to be vac­ci­nat­ed are not coercion.

7. The Appli­cant is enti­tled to her views about vac­ci­na­tion and to refuse to be vac­ci­nat­ed, but that is a choice and to decline to be vac­ci­nat­ed or pro­vide proof of vac­ci­na­tion pur­suant to legal require­ments for entry to a work­place, will result in the employ­ee being legal­ly exclud­ed from the workplace.

8. While the choice may be dif­fi­cult, it is nev­er­the­less a choice.

9. COVID - 19 Vac­ci­na­tions are approved for use in Aus­tralia pur­suant to Com­mon­wealth leg­is­la­tion and employ­ers are not required to prove their safe­ty or effi­ca­cy to employ­ees or to the Fair Work Com­mis­sion in the event of a dis­pute with an employee.

10. Employ­ers are not required to lob­by Gov­ern­ments to have direc­tives revoked or amend­ed before dis­miss­ing employ­ees for non-compliance.

Some employ­ers are still receiv­ing bizarre let­ters from employ­ees who decline to be vac­ci­nat­ed, often fol­low­ing a tem­plate pro­vid­ed by indi­vid­u­als or groups active in either the anti-vac­ci­na­tion or "sov­er­eign cit­i­zen" move­ments. The prin­ci­ples above, which bust many of the legal myths espoused in such cor­re­spon­dence, offer a use­ful guide for employ­ers need­ing to respond.

For further information please contact:

Michael Byrnes, Partner
Phone: +61 2 9233 5544
Email: mjb@swaab.com.au

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.