The Fair Work Commission (FWC) determines that a Church employee's dismissal for receiving the COVID-19 vaccine was unfair and awards $8,000 in compensation.
You can read the full decision of the unfair dismissal claim of Lainie Chait v The Church of Ubuntu Inc [2024] FWC 703 here.
Background to the unfair dismissal claim
Lainie Chait worked for the Ubuntu Wellness Clinic Newcastle (Clinic), which was part of and controlled by the Church of Ubuntu (Church), selling cannabis products for medicinal purposes.
After receiving a vaccination against COVID-19 (COVID), Ms Chait was dismissed from her job at the Clinic by the Church.
Ms Chait first learnt her employment was terminated on 11 October 2021 from a co-worker who sent her a voice recording of the Church President, Mr Barry Futter, making a statement on Facebook Messenger that he had heard that Ms Chait had been vaccinated and that "nobody can work for us if he's vaccinated".
After Ms Chait attempted to contact Mr Futter to discuss the matter, Mr Futter replied by text message saying:
"Hey, if this is about you getting jabbed. I wish well. Talking to you won't assist [at the moment]"
and provided Ms Chait with the same voice recording she had received from her work colleague.
Later, the Church's Vice President, Ms Karen Burge, sent Ms Chait a letter terminating her employment that said receiving the COVID vaccination was:
"in contradiction with our Constitution and contrary to our position on what is required of us by our Lord God and Creator."
Employee lodges an unfair dismissal claim
Ms Chait made an unfair dismissal application to the Fair Work Commission on 29 October 2021, alleging that she had been unfairly dismissed.
The Church refused to participate in the hearing after the FWC (Vice President Asbury, formerly Deputy President and the Full Bench on appeal) found that Ms Chait was an employee of the Church and not an independent contractor of the Clinic, as contended by the Church. The FWC also found that Ms Chait's unfair dismissal application was filed within the required statutory timeframe, 21 days after she was terminated.
The Church advised the FWC that it considered the Full Bench's decision upholding Vice President Asbury's decision that Ms Chait filed her application within the required statutory timeframe was "void" and it would not be "entertaining these charades any further and we will deal with this matter if and when it comes before a competent court of law".
Despite the Church not participating in the hearing, Vice President Asbury took into consideration the Church's evidence and submissions filed in the jurisdictional hearing.
Church asserts vaccination contrary to God's teachings
During the jurisdictional hearing, the Church asserted that Ms Chait was a full member of the Church and bound by its Constitution, which prohibited vaccination.
The Church indicated that Ms Chait's dismissal was based on their views about following "good Scripture" and a belief that receipt of the COVID vaccination "is contrary to God's teachings" and is "evil and demonic in its construct". However, the Church failed to provide the FWC any rationale for this belief.
The Church's opposition to the COVID vaccination was in response to several issues, including the mandates imposed by the NSW Government and that a "small number of people profiting enormously from" vaccinations. The Church also believed that there was "indisputable evidence" that the COVID vaccination "harms people".
Employee asserts she was punished by Church for following public policy regarding COVID vaccination
Ms Chait submitted that she was dismissed by the Church for no other reason than because she received a COVID vaccination and said:
"It is extraordinary that an employer could punish an employee for following a public policy which was followed by all public health authorities and reflected in the public health orders in New South Wales and other jurisdictions".
Ms Chait also said that the Church's Constitution made no mention of vaccinations, and the Church had previously made public statements that it was "pro-choice". Ms Chait submitted that she only became aware of the Church's religious opposition to the COVID vaccination after she was dismissed. Further, she was not notified of the Church's position about the COVID vaccination, nor was she given the opportunity to respond to that position before the dismissal was effected.
FWC determines dismissal was unfair
The FWC found that Ms Chait was not a member of the Church as purported by the Church, and any requirement for her to adhere to its teachings, as well as the Church's position that no-one who had received the COVID vaccination could work for them, were unreasonable.
Ms Chait had been working for the Church without any issues about her non-membership being raised during her employment and the role that she was performing was not "an intrinsically religious job". Further, it was found that the Church's Constitution made no mention of vaccination being forbidden and that members of the Church had received other vaccinations that were not the COVID vaccination without any issue being taken by the Church.
The FWC found that the dismissal was unfair, as the Church:
- did not have a valid reason to terminate Ms Chait's employment;
- did not notify Ms Chait of the reasons for the dismissal before the decision to terminate her employment was made; and
- did not provide Ms Chait with an opportunity to respond to the reasons for the dismissal, and the Church President specifically rejected Ms Cait's attempt to have such a discussion.
The FWC also found that the dismissal was harsh, unjust and unreasonable because:
- Ms Chait had suffered economic consequences after the dismissal took effect, as she had limited means and was unemployed for approximately 12 months after the dismissal;
- Ms Chait was not guilty of "deliberately flouting" the rules of the Church or any misconduct by becoming vaccinated; and
- the Church had no reasonable basis to find that Ms Chait had been deceptive or dishonest about receiving the COVID vaccination.
Compensation awarded for unfair dismissal
Vice President Asbury awarded Ms Chait $8,000 in compensation, which was equivalent to 12 weeks' salary. She noted the amount was not near the legislative cap for compensation in unfair dismissal matters, which is 26 weeks.
Vice President Asbury observed that the Church should consider itself "fortunate" that Ms Chait had maintained her claim of $8,000 throughout the proceedings, as she may have awarded Ms Chait a higher amount had she not done so.
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