Australia’s national workplace tribunal, the Fair Work Commission (FWC), has upheld the dismissal of unvaccinated employees for failing to comply with relevant public health orders (vaccination directions) regarding COVID-19. To mitigate the risk of unfair dismissal claims, employers must ensure that procedural fairness is upheld.
Disclaimer: The directives in this article relating to the COVID-19 pandemic may no longer be in force. Please use caution if you are citing legislative material from this article as laws are subject to change. We recommend that you seek the most up-to-date law.
Can an employee be terminated for refusing to be vaccinated?
The cases explored in this article have established a precedent for the lawful dismissal of unvaccinated employees. The cases demonstrate how an employee’s decision to remain unvaccinated against COVID-19 can prevent onsite work. The refusal of vaccination directions can result in an employee being incapable of performing the inherent requirements of their role, thus leading to a valid reason for dismissal.
Floors Aucamp v Association for Christian Senior Citizens Homes Inc  FWC 6669
In January 2016, Mr Aucamp commenced employment with the Association for Christian Senior Citizens Homes Inc (the Association) in the role of a full-time maintenance manager.
On 4 October 2021, a meeting took place between Mr Aucamp and two representatives from the Association to discuss the vaccination directions that were going to be implemented on 7 October 2021. The Association was aware of Mr Aucamp’s objection to the vaccine. Mr Aucamp agreed to the possibility of dismissal should he refuse to comply with the vaccination orders.
Mr Aucamp’s employment was terminated on 14 October 2021 on the basis that Mr Aucamp could not lawfully enter the premises and was therefore unable to perform his duties.
The FWC agreed that Mr Aucamp was required to be vaccinated in accordance with public health orders. The FWC held that Mr Aucamp’s decision to remain unvaccinated rendered him incapable of achieving the expected standards of performance, thereby constituting a valid reason for dismissal.
On 20 September 2021, the management of Epworth HealthCare (Epworth) informed all employees that mandatory vaccination directions required healthcare workers to ‘be vaccinated and provide appropriate evidence of vaccination, or have a booking to receive a vaccination by 29 October 2021, unless the exception for medical contraindications applied.’
Ms Stevens, a dietician at Epworth, communicated her objections to the vaccine to the executive general manager of Epworth Richmond. The executive general manager advised her that it would not be feasible to ‘perform the key requirements of her role from home.’ Owing to Ms Stevens’ incapacity to attend the workplace, her employment was terminated.
The FWC upheld the dismissal of Ms Stevens on the grounds that she refused to provide her employer with proof of her vaccination status.
The FWC rejected the following submissions from Ms Stevens:
- that taking the vaccine was to ‘participate in a “medical trial procedure”’
- that the vaccination directions were inconsistent with federal law
- that the vaccination directions were inconsistent with the Privacy Act 1988
- that the vaccination directions were inconsistent with anti-discrimination legislation
- that the vaccination directions were inconsistent with international human rights conventions
- that Epworth should have lobbied against the Victorian Government to have the vaccination directions revoked
The FWC held that Epworth’s dismissal of Ms Stevens was in accordance with vaccination directions which imposed a duty of care on healthcare facilities. These directions imposed a ‘regulatory requirement’ in relation to the vaccination status of Epworth’s employees, rendering the dismissal lawful.
Likewise, the FWC rejected the contention that the COVID-19 vaccination rollout was a “medical trial,” as the relevant tests had taken place before the Therapeutic Goods Administration approved the vaccines.
What are the obligations of an employer?
It is the responsibility of the employer to take steps to comply with the relevant public health orders. When implementing policies such as mandatory COVID-19 vaccine policy, employers must ensure procedural fairness by undertaking a consulting process with their employees.
To understand how the vaccination directions apply differently across each state and territory, please visit the Fair Work Ombudsman website.
Additionally, if you would like to learn more about the complexities of unfair dismissal claims, please visit our blog.
How Etheringtons Solicitors can help?
A solicitor at Etheringtons Solicitors can provide clarification of the relevant law and its relation to your individual circumstances. If you need further advice or assistance with any employment law matters, please contact one of our experienced solicitors on (02) 9963 9800 or via our contact form.