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Vaccinations and on-site work requirement update

Libby Pallot, Walter MacCallum, Anthony Massaro, Rima Newman, Ben Tallboys, Abbey Burns, Kelly Ralph, Natasha Sim, Morgan Smithe & Tyler Farr

As employers continue to defend vaccination-related claims, manage booster deadlines and welcome employees back into their workplaces on a more permanent basis for 2022, there is some comfort in the Fair Work Commissions decisions of Floors Aucamp v Association for Christian Senior Citizens Homes Inc. [2021] FWC 6669 and Isabella Stevens v Epworth Foundation [2022] FWC 593. These decisions reiterated that where an employee is required to be onsite to perform the responsibilities of their position, they must comply with the mandatory vaccination requirements implemented by the State Government and that the Fair Work Commission is not the place to challenge public policy.

Floors Aucamp v Association for Christian Senior Citizens Homes Inc. [2021] FWC 6669

Background

The Applicant, Mr Aucamp, was employed full time as the Maintenance Manager at a retirement village operated by the Respondent. As part of his responsibilities, he was required to either perform maintenance tasks himself or he would engage and manage external contractors at the retirement village.

On 4 October 2021, Mr Aucamp had a meeting with the Respondent to discuss the possible health directions foreshadowed by the Victorian Government regarding mandatory vaccinations. The Respondent was aware of Mr Aucamp’s stance on vaccination due to previous discussions with him but wanted to give Mr Aucamp an opportunity to reconsider. The possibility of termination of employment was also discussed as a result of the health directions.

The COVID-19 Mandatory Vaccination (Workers) Directions (Directions) were subsequently enacted, under which Mr Aucamp was defined as a ‘repair and maintenance worker’. The Directions prevented Mr Aucamp from working outside his ordinary place of residence on or after 15 October 2021 if he was not vaccinated or otherwise exempt.

There was further email correspondence between Mr Aucamp and the Respondent between 8 to 14 October 2021 discussing Mr Aucamp’s vaccination status. The Respondent ultimately terminated Mr Aucamp’s employment on 14 October 2021 as he was unable to perform the inherent requirements of his position due to his unvaccinated status.

Mr Aucamp subsequently made an unfair dismissal claim.

Decision

In dismissing the unfair dismissal application, Deputy President Clancy was satisfied that Mr Aucamp’s dismissal was not harsh, unjust or unreasonable and therefore, it was not unfair.

Deputy President Clancy had specific consideration to the criteria set out in s 387 of the Act in making his decision. He noted that the Directions issued by the Victorian Government were properly authorised in the circumstances of a state of emergency. As such, both Mr Aucamp and the Respondent were required to comply with them.

The Commission clarified that the dismissal was related to Mr Aucamp’s capacity rather than conduct. The Directions prohibited the Respondent from allowing Mr Aucamp to work onsite at the retirement village and therefore he could not lawfully perform his role from 15 October 2021. If the Respondent allowed Mr Aucamp to work outside his ordinary place of residence it would have committed an offence, potentially resulting in a substantial financial penalty. For these reason’s Deputy President Clancy was satisfied there was a valid reason for Mr Aucamp’s dismissal relating to his capacity.

Deputy President Clancy was also satisfied the Respondent notified Mr Aucamp of the reason for his dismissal and provided him an opportunity to respond. This was demonstrated by the discussions held on 4 October 2021, where Mr Aucamp was alive to the possibility of termination due to his unvaccinated status. Further, there was correspondence from Mr Aucamp on 11 October 2021 where he stated he “will not be taking the vaccine”.

Mr Aucamp raised an issue regarding the limited time throughout the process for him to think and consider his options. However, the Respondent submitted, and the Commission accepted, that they were subject to the mandatory Directions and there was no capacity to provide extra notice. Deputy President Clancy also noted that there was no change to Mr Aucamp’s position regarding vaccination and he did not exercise his right to make a vaccination booking by 22 October 2021 pursuant to the Directions. This suggested that there was little weight behind Mr Aucamp’s time limit argument.

Isabella Stevens v Epworth Foundation [2022] FWC 593

Background

Ms Stevens worked as a dietician for the Epworth Foundation from July 2011. In late September 2021 Epworth wrote to all of its employees informing them that mandatory vaccination directions required healthcare workers to have received specified doses of the COVID-19 vaccine by particular dates. 

Ms Stevens commenced sick leave in late October and wrote to Epworth, objecting to the provision of her vaccination status and asking it for assurances about the safety of vaccinations.

Once the Directions came into effect, Epworth was not permitted to allow workers, including Ms Stevens, to attend for work on or after 15 October 2021 unless they had provided evidence of having been vaccinated against COVID-19, or of a booking to receive a vaccination by 29 October 2021, unless another exception applied.

Epworth allowed Ms Stevens to take leave while corresponding with her about the vaccination requirements. Ms Stevens continued to raise issues about the safety of vaccinations, disputed the lawfulness of the Directions, including alleging that they were contrary to discrimination laws and disputed Epworth’s requirement that she provide information about her vaccination status under privacy laws. Ms Stevens also she relied on statements from the federal government to the effect that vaccinations were not mandatory, which she said prevailed over the Victorian Directions and offered to undergo PCR tests instead of providing her vaccination status information.

Epworth told Ms Stevens that she was not required to provide her vaccination information to Epworth, but that if she did not, she would be treated as unvaccinated and unable to do her job. Epworth dismissed Ms Stevens from her employment on that basis on 3 December 2021.

Ms Stevens made an unfair dismissal claim.

Decision

Ms Stevens contended that her dismissal was unfair for a number of reasons, including that Epworth was forcing her to take part in a ‘medical trial procedure’, that the Directions were invalid (including being contrary to various laws including the Constitution and anti-discrimination privacy laws) and that Epworth should have lobbied the government to have the Directions revoked. 

The Commission found that Epworth’s reason for dismissing Ms Stevens, that she could not perform her role, was a valid reason. In reaching this conclusion, the Commission made the following comments:

  • The Directions created a new regulatory requirement in relation to Ms Steven’s job and while she was entitled to decline to become vaccinated or provide Epworth with that information, it rendered her unable to perform her job.
  • The rollout of COVID-19 vaccinations was not a trial because tests and trials had taken place before TGA approval of the vaccinations, and Ms Stevens was not being forced to have the vaccination in any event.
  • The Directions were not contrary to any of the laws cited by Ms Stevens and Epworth was required to comply with them. In addition, the Commission is required to apply valid laws and not give effect to a party’s “alternative policy preferences”.

The Commission also found that there were no procedural issues in relation to Ms Steven’s dismissal, and it rejected her claim.

Lessons for Employers

Employers must continue to comply with all relevant mandatory vaccination health directions, including booster deadlines in some cases. Where employees do not comply with vaccination requirements, and they are required to attend their workplace onsite for at least some of the time to perform their role, they will not be able to perform the inherent requirements of their positions. 

This reminder comes at an important time as more employees attend a physical workspace and the state governments are closely monitoring the COVID-19 situation and some have mandated booster shots for certain categories of workers.

How we can help?

If you require assistance in complying with the current health orders or defending any vaccination-related claims by employees, our Workplace Relations, Employment and Safety Team has been helping employers across a range of sectors to introduce vaccination requirements, and manage employees who cannot or will not be vaccinated. We have prepared a range of documents and template communications which can assist with this process and have vast experience in defending subsequent claims brought by employees.

If you would like to keep in touch with Alerts and Insights from our Workplace Relations, Employment and Safety team, you can subscribe to our mailing list here.

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