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State public health mandates sink aged care employees’ unfair dismissal claims

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Two decisions of the Fair Work Commission (FWC) have reinforced that a failure to comply with public health orders or directions which mandate vaccinations will be a valid reason for dismissal.

Two decisions of the Fair Work Commission (FWC) have reinforced that a failure to comply with public health orders or directions which mandate vaccinations will be a valid reason for dismissal.

In Tew v The Bethanie Group Inc. T/A Bethanie Aged Care [2022] FWC 96 an electrician for a Western Australian aged care provider lodged an unfair dismissal application after he was dismissed because he did not have an up-to-date influenza (flu) vaccination.

In 2020, in accordance with the health directions in place then, Mr Tew was required by his employer to be vaccinated with the flu vaccine in order to continue his work of providing electrical maintenance work across the employer’s facilities. At this time, Mr Tew received the vaccination, but later claimed that he did so out of fear and coercion.

In February 2021, the Visitors to Residential Aged Care Facilities Directions (No 7) (the Direction) was made by the Chief Health Officer of Western Australia which required that a person must not enter or remain on the premises of a residential aged care facility unless they had an up-to-date influenza vaccination (subject to exceptions). The employer was also required under the Direction to take reasonable steps to ensure that a person did not enter or remain on premises in contravention of the Direction.

In March 2021, the employer advised employees of the flu vaccination requirement under the Direction and that unless the employees provided evidence of their flu vaccination, they would not be permitted to enter any aged care facility by 31 May 2021. This was followed up by further communications containing directions about the flu vaccination mandate and advising employees that their ongoing employment may be impacted if they did not receive the flu vaccine.

Prior to the termination of his employment, Mr Tew sent “notices” to the employer setting out conditions, including that it provide evidence about the flu vaccine and accept liability and pay compensation for any injury he suffered and adverse events caused by receiving the flu vaccine. The employer refused to agree to the employee’s conditions.

On 22 June 2021, the employee was dismissed from his employment as a result of:

a)    His inability to perform the inherent requirements of his role; and

b)    His refusal to comply with the employer’s lawful and reasonable direction to have the flu vaccination.

The employer submitted that the direction was reasonable and lawful because of the requirement of the Direction for visitors to be vaccinated and in addition, it was reasonable because employees including Mr Tew would be required to normally interact with residents in its aged care facilities.

The employer also provided evidence that it considered alternatives to the termination of Mr Tew’s employment, including requiring Mr Tew to only work in certain locations but this was not viable and it would also mean that he could not perform on-call work which was a requirement of the role as he would not be able to attend to emergencies in its aged care facilities.

Mr Tew submitted that he did not refuse to be vaccinated, but rather he would receive the vaccine if the employer answered the questions in his notices. He submitted that the employer failed to prove that its direction was lawful and did not have a compelling reason for the flu vaccine to be a requirement for him to carry out his duties.

The FWC found that the employer had to comply with the Direction or it would face penalties and had no control over the requirement for Mr Tew to be vaccinated in order to work in aged care facilities.

Accordingly, the FWC found that there was a valid reason for dismissal:

  • Based on the employee’s conduct in failing to comply with the employer’s direction to provide proof of his up-to-date flu vaccination; and
  • By operation of the Direction and Mr Tew not having an up-to-date vaccination, he did not have the capacity to perform the inherent requirements of his position.

The FWC noted that the employer was still required to treat the employee fairly in circumstances where the actions of a third party affected an employee’s ability to perform the inherent requirements of their role. For the FWC, this involved consideration of the extent to which the employer had power to alter or challenge the outcome by the third party and the ability to redeploy the employee.

The FWC was satisfied that the employer had no power to challenge the Direction and was also satisfied that the employer considered redeployment opportunities for Mr Tew. It found that it was not possible for the employer to retain Mr Tew and to do so would result in inefficiencies and expenses. The FWC stated at [119] “There is no reasonable basis to find that Bethanie Aged Care should have incurred such ongoing inefficiencies and additional costs in order to accommodate Mr Tew’s personal preference.”

Having found that the dismissal was not affected by any procedural unfairness, the FWC was satisfied that the termination of Mr Tew’s employment was not unfair and dismissed his application.

In Aucamp v Association for Christian Senior Citizens Homes Inc [2021] FWC 6669, the FWC also dismissed an application for unfair dismissal brought by a maintenance worker for a Victorian aged care provider who was dismissed because he was not vaccinated against COVID-19.

Mr Aucamp was employed in the position of Maintenance Manager at a retirement village. On 4 October 2021, the employer met with Mr Aucamp to discuss the Victorian Government’s mandatory COVID-19 vaccination directions which were to be announced and their application to his employment. Mr Aucamp advised the employer that he had not decided whether he would get vaccinated but that he was still reading about the safety and efficacy of the vaccine.

On7 October 2021 the COVID-19 Mandatory Vaccination (Workers) Directions (Vaccination Directions) commenced. The employer formed the view that the Vaccination Directions applied to Mr Aucamp as a “repair and maintenance worker”.

Under the Vaccination Directions, employers were required to collect, record and hold information about the vaccination status of their workers and to ensure that unvaccinated workers did not work outside of their ordinary place of residence on or after 15 October 2021, subject to certain exemptions.

By email dated 8 October 2021 the employer wrote to Mr Aucamp in relation to the Vaccination Directions and the vaccination deadline. Mr Aucamp was requested to notify his employer if he chose not to be vaccinated so that ongoing cover for his duties could be arranged. Mr Aucamp responded that he would not be taking the vaccine and asked the employer what would happen after the end of the week (when the vaccination deadline had passed), in particular, whether he would be paid his annual leave, pro-rata long service leave and given five weeks’ notice.

The employer wrote to Mr Aucamp advising that his employment was terminated effective 14 October 2021 on the basis that he could not lawfully perform his role of Maintenance Manager from 15 October 2021 as it could not lawfully permit him to enter its premises in accordance with the Vaccination Directions. Mr Aucamp was advised that he was not entitled to notice, but that it would pay him an additional three weeks’ pay given the timing of the Vaccination Directions.

The FWC was satisfied that there was a valid reason for the termination of Mr Aucamp’s employment based on his incapacity to perform the work he was employed to do. The FWC noted that the Vaccination Directions required the employer to take reasonable steps to ensure its workers who were not vaccinated did not work outside of their ordinary place of residence and a failure to do so was an offence which would attract a penalty.

The FWC noted that while the employer never issued a direction to Mr Aucamp to be vaccinated, it held that it was entitled to conclude that he would remain unvaccinated after he had earlier confirmed that he would not be vaccinated.

The FWC was also satisfied that the employee was notified of the reason for the dismissal and given an opportunity to respond. The employer provided Mr Aucamp with a copy of the Vaccination Directions and advised him that he would not be able to work if he chose not to be vaccinated.

Mr Aucamp made submissions about the legality of Workers Directions and submitted that the employer’s process was too quick and he did not have an opportunity to consider things properly. However, the FWC did not consider that these submissions rendered the dismissal unfair. In particular, it noted that Mr Aucamp’s “grievances lie with the decision of the Victorian Government’s Acting Chief Health Officer” and noted that his decision not to be vaccinated had remained unchanged.

The FWC dismissed Mr Aucamp’s application.

Lessons for employers

With these decisions, the FWC has confirmed that it will be a valid reason for dismissal if an employee is dismissed for failing to comply with public health orders and directions where employers have no choice but to comply. Employers should also ensure that procedural fairness is afforded to employees, even where a public health direction or order applies including notifying the employee of the reason of their dismissal and providing them with an opportunity to respond.

 

Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog, or from links on this website to any external website. Where applicable, liability is limited by a scheme approved under Professional Standards Legislation.

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