Manda­to­ry Work­place Vac­ci­na­tion: Some Recent COVID-19 Vac­ci­na­tion Cases

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.