On 17 April 2020, the business implemented a policy requiring staff to be vaccinated against the influenza virus “unless they have a medical condition which makes it unsafe for them to do so “.

An employee objected to receiving the vaccine on the basis they had celiac disease, irritable bowel syndrome, and had been told that some 11 years prior they had an allergic reaction to the vaccine.

When asked for supporting medical evidence, the employee was only able to provide statements from doctors who agreed the employee had the reported medical conditions. However, the evidence did not confirm the employee had suffered an allergic reaction or that they should be exempt.

Due to insufficient medical evidence, the business wrote to the employee advising they were considering terminating her employment on the basis they considered having the vaccination was an inherent requirement of the role. The employee was given an opportunity to respond and thereafter was dismissed on 13 August 2020.

The employee was aware five teachers had objected to the vaccination yet remained employed.

The employee lodged an unfair dismissal claim.

The decision

When determining whether there was a valid reason for dismissal, The Fair Work Commission (the “Commission”) did not accept the failure to be vaccinated meant the employee could not perform the inherent requirements of the role.

However, the Commission concluded the employee had failed to comply with a lawful and reasonable direction - given they failed to provide sufficient evidence and persisted refusing to be vaccinated.

The Commission took into account the nature of the business and the work performed by the employee as well as the considered approach taken over a period of four months. Concluding the dismissal was fair, the Commission made it clear, the decision had been made having regard to the individual circumstances of this case, and this case only.

Learnings for businesses

As the decision was made in regard to the individual circumstances, businesses should not assume they have an ability to impose compulsory COVID-19 vaccines in their workforce – as has been a major talking point amongst businesses since the beginning of the epidemic.

This case is also a timely reminder to businesses to take advice and carefully consider whether policies imposing mandatory requirements are necessary and appropriate.

It also raises importance of procedural fairness and natural justice when considering taking disciplinary action. Had the Commission concluded the policy was not appropriate and/or that the business had failed to consider an issue raised by the employee, the dismissal could have been deemed unfair.

How we can help

The Victorian Chamber Workplace Relations Advice Line is on hand to provide support and to help businesses understand what, when and how to introduce workplace policies as well as how to manage complaint, disciplinary and termination processes.

In addition, our Workplace Relations Consultants have a wealth of experience conducting workplace investigations and providing advice and support to business considering disciplinary outcomes.

For assistance on any aspect of your employment obligations, please call the Victorian Chamber Workplace Relations Advice Line on (03) 8662 5222. 

[2021] FWC 2156