Dismissal of unvaccinated employee supported by Fair Work Commission due to vaccination being a ‘regulatory requirement’

The Fair Work Commission (FWC) has again confirmed that although a worker can refuse COVID-19 vaccinations, terminating their employment for that reason will not be considered harsh, unjust, or unfair when there is a vaccine mandate in place, making vaccination an inherent requirement of the role.

Background

In Isabella Stevens v Epworth Foundation [2022] FWC 593, the FWC upheld the dismissal of a dietician who refused to provide her employer with proof of her vaccination status.

Various public health directions (Directions) in Victoria imposed a duty on Epworth as a healthcare facility to only allow workers that have evidence of vaccinations or vaccination bookings to attend for work, on or after 15 October 2021.

Epworth wrote to all of its employees informing them of the mandate on 20 September 2021.

Ms Stevens, a dietician, was on personal and annual leave from late September to 29 October 2021. During this period, Ms Stevens communicated her objections and fears about the vaccines to the Epworth general manager. Ms Stevens also offered to undergo PCR tests in lieu of providing her vaccination status. 

In response, the general manager told Ms Stevens that the Directions were legally binding on the company with no exceptions and if she did not comply, she would be subjected to penalties.

Ms Stevens was dismissed on 3 December 2021 on the grounds that she could not fulfil the inherent requirements of her role without attending the workplace.

FWC’s decision

In deciding whether an unfair dismissal occurred, the FWC considered whether there was a valid reason for the dismissal related to a person’s capacity or conduct as per section 387(a) of the Fair Work Act 2009 (Cth).

The FWC accepted that the reason for dismissal here was related to Ms Stevens’ “capacity to perform her role” and that the general manager was “prohibited by law from allowing her to attend the workplace unles she provided the required evidence”.

The FWC rejected the following submissions from Ms Stevens:

1. that taking the vaccine was to “participate in a medical trial procedure”
2. that the Directions were inconsistent with federal law
3. that the Directions were inconsistent with the Privacy Act 1988
4. that the Directions were inconsistent with the Commowealth anti-discrimination legislation
5. that the Directions were inconsistent with international human rights conventions
6. that Epworth should have lobbied against the Victorian Government to have the Directions revoked.

Instead, the FWC found that the effect of the Directions was that Epworth was bound by a new “regulatory requirement” in relation to the vaccination status of its employees, rendering the dismissal valid.

The FWC rejected the contention that the COVID-19 vaccination rollout was a “medical trial” because the relevant tests and trials had taken place before the Therapeutic Goods Administration’s (TGA) approved the vaccines.

It was also held that Ms Stevens’ offer to undergo PCR tests to prove she did not have COVID-19 did not need to be considered by Epsworth because the Directions did not specify any such exceptions to the vaccine requirements.

Although Ms Stevens “was and is entitled to her opinion”, the FWC held that “… Epworth had to comply with the law”. In conclusion, the FWC considered Ms Stevens’ termination valid because her choice not to become vaccinated resulted in her legal exclusion from Epsworth’s workplace.

Key takeaways

• vaccine mandates are in effect, a regulatory requirement that employers must comply with, so terminations of employees who breach these requirements will be deemed valid
• although a worker is entitled to choose not to be vaccinated, where that choice results in an inability of the worker to perform their role, this choice may result in termination
• the TGA’s approval of vaccines is evidence of their safety and efficacy, therefore, COVID-19 vaccines are not considered a medical trial
• proposals from employees offering an alternative to vaccination, such as providing negative PCR tests, do not have to be considered by employers where vaccines are mandatory.

If you have any questions about this article or need assistance with defending any vaccination-related claims by employees, please contact us or send us your enquiry here.

Authors: Edmund Burke, Ella Rooney & Angela Marra

Disclaimer
The information in this article is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.

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