FWC upholds right of employer to dismiss vaccination refuser


FWC upholds right of employer to dismiss vaccination refuser

In another unsuccessful claim by a vaccination refuser, the Fair Work Commission has found that an employee’s employment was validly terminated on the ground that she was unable to meet the inherent requirements of her job – Isabella Stevens v. Epworth Foundation (17 March 2022).

Facts

Ms Stevens had been employed as a dietician with Epworth HealthCare for over 10 years.  She refused to provide Epworth with proof that she had been vaccinated against COVID-19.  Pursuant to Victorian government directions (Directions), Epworth was therefore required not to allow her to attend the workplace on or after 15 October 2021.

On 20 September 2021, an email was sent by Epworth to all employees informing them that mandatory vaccination Directions required healthcare workers to have received specified doses of the COVID-19 vaccine by particular dates.

In late September 2021, Ms Stevens commenced sick leave until 21 October 2021.  She then took annual leave until 29 October 2021 and long service leave until 23 November 2021, with the approval of Epworth.

During these periods of leave, Epworth requested on multiple occasions that Ms Stevens provided confirmation of her vaccination status or a medical exemption.  She failed to do so.  On 22 November 2021, Ms Stevens was provided with a show cause letter as to why her employment should not be terminated as she was not able to lawfully perform her role in the short to medium term, given that Epworth was prohibited by the Directions from allowing her into the workplace.  Her role also needed to be performed on an ongoing basis as part of Epworth’s operational requirements.

In response, Ms Stevens requested an extension of her long service leave until 1 January 2022 or longer, until it expired.  Epworth refused this request and terminated her employment on 1 December 2021.

Decision

Deputy President Colman found that Epworth had a valid reason to dismiss Ms Stevens, related to her capacity to perform her role.

DP Colman made the following comments/findings in response to submissions put for Ms Stevens:

  • she is entitled to her opinions about the efficacy and safety of COVID-19 vaccines;
  • she was within her rights to decline to become vaccinated or to provide Epworth with vaccination status information. However, these choices had the inevitable consequence that she rendered herself unable to perform her job;
  • Epworth was prohibited by law from allowing Ms Stevens to attend the workplace unless she provided the required evidence;
  • Epworth was not forcing Ms Stevens to participate in a “medical trial procedures”. The roll out of COVID-19 vaccinations is not a trial.  Relevant tests and trials took place prior to the TGA approval of the vaccines for use in Australia;
  • the Directions have not been declared by a court to be invalid nor do the arguments advanced for Ms Stevens cast doubt on the validity of the Directions. The contention that the Directions are inconsistent with Federal law do not appear to have any merit.  There is also no basis to contend that the Directions are inconsistent with the Commonwealth Privacy Act 1988 or anti-discrimination legislation or international human rights conventions;
  • the suggestion that the Commission should accept her contention that the Directions were disproportionate or unfair is impermissible. The Commission must apply law, not undermine it by giving effect to a party’s alternative policy preferences under the guise of exercising discretion.  Epworth was bound to comply with the Directions;
  • it was not relevant for the Commission to take into account Ms Stevens’ offer that she undergo PCR tests to demonstrate that she did not have COVID-19, as a reasonable alternative to her dismissal. The Directions did not provide for exceptions in respect of employees who return negative COVID-19 tests;
  • Epworth was not required to provide Ms Stevens with the assurances she requested concerning the safety or efficacy of the COVID-19 vaccines; and
  • Epworth had reasonable business grounds to refuse Ms Stevens’ request to take further long service leave. This was based on evidence led that granting further long service leave would have continued to leave the position unfilled, with an impact on services to patients.

Key takeaways

DP Colman’s decision reinforces views previously expressed in relation to COVID-19 vaccination related dismissals that vaccine refusers do have a choice not to be vaccinated and not to provide their employer with information about their vaccination status.  However, this choice carries with it the consequence that their ongoing employment maybe rendered untenable, whether this be due to state or territory government public health orders or to the mandatory vaccination policies of the employer concerned.

These decisions are made in the context of state and territory governments and employers around the country introducing vaccination mandates in workplaces owing to the strong health and safety drivers arising out of the current major COVID-19 pandemic.  The fact that the Federal government has not itself mandated vaccinations is of no assistance to vaccine refusers in their post-dismissal litigation.

For information about a decision relating to an employer’s own vaccine mandate, see our earlier article re CFMMEU v. Mt. Arthur Coal.

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