Covid-19

Vaccination Policies in Workplaces, COVID-19

Vaccination-Policies-in-Workplaces,-COVID-19
We should all be respected, not dismissed

Vaccination Policies in Workplaces, COVID-19

The Government’s nationwide rollout of the COVID-19 vaccination has been the topic of considerable discussion

The Australian Government’s nationwide rollout of the COVID-19 vaccination has been the topic of considerable discussion and debate. The COVID-19 vaccines are marketed as the most effective way to protect the community against this deadly infection and necessary to slow down the spread.[1] Consequently, state governments have issued public health orders (PHOs) and directions, mandating COVID-19 vaccination as a condition of employment for particular high-risk industries. Employers are now grappling with the question of whether or not they can legally implement mandatory COVID-19 vaccination policies in their workplaces and in wider industries.

Employers are now asking themselves whether they have the legal right to direct employees to receive COVID-19 vaccination as a condition of employment in an inherently shared workplace with other employees, clients and members of the public. In analysing the existence of this right, it is appropriate to consider whether a government mandate requires an employee to be vaccinated as a condition of their employment; whether vaccination is required to fulfil the inherent requirements of the job; whether it would be lawful and reasonable to direct employees to be vaccinated and whether this breaches any discrimination laws.

Methods of Implementing Mandatory COVID-19 Vaccination Policies in Workplaces

Inherent Requirement of the Job

The concept of “capacity” goes beyond the physical capacity or skill of the employee, and encompasses situations where employees do not have or maintain the necessary licence, certification, qualification, approval or accreditation to lawfully perform the inherent requirements of their job.[2]

In X v The Commonwealth,[3] the High Court held that inherent requirements of a job means the essential elements of the particular employment,[4]  which are not confined to the physical ability or skill of the employee to perform the “characteristic” task or skill of the employment.[5] In most employment situations, the inherent requirements of the employment will also require the employee to be able to work in a way that does not pose a risk to the health or safety of fellow employees.[6]

No Government-Issued Vaccination Mandate –Not Inherent Requirement

In Fair work Commission case of Barber v Goodstart Early Learning,[7] a childcare and early learning centre introduced an immunization policy, requiring that all staff must receive the influenza vaccination unless they have a medical condition which makes it unsafe for them to do so. This policy was introduced and implemented without a government-issued mandate, but based on the employer’s perceived legal obligations to ensure the safety and welfare of employees and children.

Although Deputy President Lake makes it very clear that this case relates specifically to the influenza vaccination in a childcare environment, where the risks and concerns are distinct,[8] similar reasoning can be applied in examining whether the COVID-19 vaccine can be considered an inherent requirement of a job.

Deputy President Lake held that determining what classifies as an inherent requirement must be done in a way that takes into account surrounding context and all other relevant factors, including the nature of the business of which the Respondent engages.[9] It is well established that a policy cannot artificially create an inherent requirement.[10] Mandating vaccinations, however reasonable and lawful the policy is, does not mean that vaccination is immediately an inherent requirement.[11] Not every policy of an employer will enumerate an inherent requirement of a role, but so long as the direction is reasonable and lawful it will be one that an employee must comply with.[12]

Even if being vaccinated fulfils the employer’s statutory obligations, it does not suggest that vaccination itself is essential as being vaccinated may not in its nature impact how the employee performed their role.[13] It is pertinent to examine the tasks performed, as the capacity to perform those tasks inform what is an inherent requirement.[14]

Despite these assertions, Deputy President Lake ultimately held that while there was no valid reason relating to the capacity of the employee in this case, there was a valid reason for termination based on her failure to comply with the reasonable and lawful direction of her employer.[15] Lawful and reasonable directions are discussed in detail below.

Vaccination-Policies-in-Workplaces,-COVID-19-leads-to-disputes-and-dismissals
Arguments over the vaccines and how it effects the workplace can get heated and emotional.

Government-Issued Mandates – Condition of Work

In order to manage the COVID-19 outbreak in Australia, states and territories have declared a “state of emergency”, which provides the state or territory’s Chief Health Officer with emergency powers to issue directions and set requirements to eliminate or reduce the risk to public health. Consequently, these government-issued mandates dictate that as a condition of work, all relevant employees will not be allowed to present for work or enter their employer’s premises without a COVID-19 vaccination.

This raises the question of whether being vaccinated against COVID-19 affects an employee’s capacity or ability to fulfil the inherent requirements of the job and in their absence, how can an employer mandate COVID-19 vaccination in their workplaces.

Government-Issued Vaccination Mandate – Vaccination an Inherent Requirement

If an employee is not vaccinated against COVID-19 in contravention of the government-issued mandates, it is more likely that this will impact the employee’s ability to fulfil the inherent requirements of the job. This was explored in the case of Kimber with the influenza vaccine.[16]

In the first instance, Commissioner McKenna held that the employee was unable to perform the inherent requirements of her job as she was not allowed onto the premises without an up-to-date flu shot.[17] It was held that if an employee cannot enter the employer’s premises, due to the vaccination requirements under government-issued mandates, the employee can not perform the inherent requirements of the job.[18] Thus, there is a valid capacity-related reason for the employee’s dismissal.[19] This decision was appealed to the Full Bench, where the majority upheld the original decision, reiterating that because the unvaccinated employee was unable to enter the employer’s premises, this plainly made the continuation of her employment untenable.[20]

In dissent, Deputy President Dean held that the employee’s inability to fulfil the inherent requirements of the role was not open for Commissioner McKenna to find, given there was an alleged medical exemption.[21] Due to the alleged medical exemption, the employer could also not direct the employee to be vaccinated as this would not have been a lawful and reasonable direction, but instead contrary to her medical advice.[22]

This argument was not accepted by the majority as they held that the evidence before Commissioner McKenna conclusively demonstrated that the condition is not a medical contraindication for the influenza vaccine which could satisfy the condition for an exemption.[23] Furthermore, Commissioner McKenna was entitled to accept and prefer the evidence of the Professor Wakefield as it would have been legally unreasonable not to.[24]

Everybody-has-a-view-on-vaccination- policies,-dismissed-for-not-having-the- jab?
Everybody has a view on vaccination policies, dismissed for not having the jab?

The Full Bench ultimately held that the public interest

Instead, the Full Bench held that in circumstances where the employee was given ample opportunity by an employer to get vaccinated or demonstrate a valid medical exemption, no other consideration could operate to render the dismissal unfair.[25] The Full Bench ultimately held that the public interest weighed entirely against the grant of permission to appeal and the majority of the Full Bench did intend, in the circumstances of the current pandemic, to give any encouragement to a spurious objection to a lawful workplace vaccination requirement.[26]

Deputy President Dean’s dissenting judgement clearly expressed her opposition to mandatory COVID-19 vaccinations. Deputy President Dean held it should be abundantly clear that there are other, far less restrictive and less intrusive ways in which we can ensure public health and appropriately address the risk of COVID without resorting to the extreme measures currently in place.[27] Despite her assertion, it is readily accepted that the choice of the employer need not be the most reasonable decision, but simply fall within the realm of reasonableness.[28] Furthermore, it is readily accepted that the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[29]

Many employers are declaring they will mandate COVID vaccines for their workers

Deputy President Dean contends that many employers are declaring they will mandate COVID vaccines for their workers, and PHOs are being made by State Governments, in circumstances where there is no justification for doing so.[30] The Deputy President asserts that making blanket rules in PHOs deny people their fundamental right to work or operate to “lock them out of society”, which denies them freedoms which are a fundamental and essential part of any democracy, concepts of reasonableness, necessity and proportionality arise.[31] The bulk of the dissenting judgement focuses on the validity and necessity of the PHOs but the Fair Work Decision is not the jurisdiction to decide this.

Validity of Public Health Orders and Government-Issued Mandates – Can Employers Rely On Them?

The validity of the government-issued mandates, namely the PHOs, have been challenged in numerous courts across Australia. Whilst there are a number of proceedings still in progress, the Supreme Court of New South Wales upheld the governments power to mandate vaccinations and criticised Deputy President Dean’s dissenting judgement.

Although the Fair Work Commission and Supreme Court are different jurisdictions, Justice Robert Beech-Jones was able to criticise Deputy President Dean’s dissenting judgement due to the Plaintiffs’ heavy reliance on the reasoning. Justice Robert Beech-Jones acknowledged that Deputy President Dean’s assertions about the efficacy and safety of COVID-19 vaccines and other aspects of the public health response to COVID-19, were not relevant for the case at hand before the Supreme Court.

However, his Honor slammed DP Dean’s clarion calls

However, his Honor slammed Deputy President Dean’s “clarion calls” which implore “all Australians” to do things such as “vigorously oppose the introduction of a system or medical apartheid and segregation”,[32] and “vigorously oppose the ongoing censorship of any views that question the current policies regarding COVID”.[33] His Honor asserted that political pamphlets have their place but doubts that the Fair Work Commission is one of them[34] nor is it the authority for legal propositions.[35] As it currently stands, the PHOs are lawful and valid, meaning employers can rely on them and impose mandatory vaccination policies accordingly.

Although Justice Robert Beech-Jones and the Majority of the Full Bench disagreed and criticised the bulk of her judgement, Deputy President Dean’s dissenting view on the issue of dismissal was based on her belief that there was no legal impediment to the employee entering the workplace as she had a valid exemption. It is abundantly clear that obtaining a medical exemption for the COVID-19 vaccine requires greater medical evidence than the flu vaccine, particularly in industries with government-issued mandates. Notwithstanding, if an employee manages to obtain a valid medical exemption, then an employer must be mindful about potentially breaching anti-discrimination laws by requiring or directing the employee to be vaccinated.

Vaccination-Policies-in-Workplaces,-COVID-19

Lawful and Reasonable Direction

Although government-issued mandates increase the likelihood of vaccination being an inherent requirement of the job, they are not imperative for implementing mandatory vaccination policies. In the absence of a government-issued mandate and despite whether a COVID-19 vaccination is considered to be an “inherent requirement” of a job, an employer may direct an employee to be vaccinated, if it is considered a lawful and reasonable directive.

The right of an employer to direct their employee is implied at common law, stemming from the ability of an employer to exert control over their employees.[36] Employees have a duty of obedience which requires an employee to comply with any lawful and reasonable direction given by a superior,[37] or otherwise contained in an employer’s policies and procedures.[38] A breach of this implied duty constitutes a breach of contract; this misconduct can provide the basis of a valid reason for dismissal.[39]

Establishing Whether a Direction is “Lawful”

If there is a government-issued mandate in place, an employer can direct an employee to be vaccinated against COVID-19 and this direction has been held not only lawful, but also reasonable.[40] Thus, a government-issued mandate automatically renders a vaccination directive lawful and reasonable and provides the employer with the strongest legal right to make such a direction.

Nevertheless, for a direction to be deemed lawful, there is no requirement for a positive statement of law endorsing an action.[41] If a direction  relates to the subject matter of the employment and involves no illegality, the obligation of the employee to obey it depends at common law upon its being reasonable.[42] As per Glover,[43] it is not unlawful for an employer to direct an employee to be vaccinated against the flu or face termination if they refuse.[44]

Consequently, a vaccination directive is likely to be deemed lawful but in the absence of a government-issued mandate, the employer will need to demonstrate it is reasonable in the circumstances.

Increasing the Reasonableness of COVID-19 Mandatory Vaccination Policies

Generally, the question of whether a direction is “reasonable”, is a question of fact and balance.[45] Employers face potential liability arising from their common law duty of care to their employees and to members of the public.[46] Employers may be subject to contractual obligations that require them to conduct their business in a particular way or to meet particular standards or observe particular constraints.[47] For these reasons it is entirely reasonable, and often necessary, for employers to put in place policies, with which employees must comply, to facilitate the employer’s compliance with its obligations and duties.[48]

What is reasonable will depend upon all the circumstances

What is reasonable will depend upon all the circumstances relevant to the employment relationship[49] and it is insignificant whether a better or different policy may have been more appropriate.[50] Thus, what can be considered reasonable will likely differ for each individual employer and it is not the role of external bodies, such as the Fair Work Commission, to interfere with the right of an employer to manager their own business.[51] The choice of the employer need not be the most reasonable decision, but simply fall within the realm of reasonableness.[52]

In order to increase the reasonableness of directing an employee to be vaccinated against COVID-19, an employer must consider: the extent of community transmission of COVID-19 in the location where the employer direction is to be given, including the risk of transmission of the Delta variant among employees, customers and other members of the community; the extent to which their employees need to work in public facing roles or in high-risk industries; whether the employees are in close-contact with the vulnerable population; whether there is any public health advice or government recommendations and whether alternative measures are sufficient, such as masks, social distancing etc., which would satisfy the employer’s health and safety obligations .[53]

The relevant factors for consideration is the high-risk

The relevant factors for consideration in the high-risk industry of aged-care, were explored in Glover.[54] Commissioner Hunt had regard to the high-risk nature of aged care, the high risk of potentially contracting influenza and COVID-19 and the employer’s legal obligation to protect the safety of their employees or clients in order to decrease their liability for any breaches of their duty of care.[55] Commission Hunt held that the employer’s mandatory influenza vaccination policy for all of its client-facing employees, without allowing any exemption, was lawful and reasonable.[56] Thus, if an employer has made a logical and legal analysis of the risks and hazards in the workplace, developed a response and implemented a policy to target that risk, a mandatory COVID-19 vaccination policy will be lawful and reasonable.[57]

In Arnold v Goodstart Early Learning Limited,[58] Deputy President Ashbury held that

the Respondent’s policy requiring mandatory vaccination is lawful and reasonable in the context of its operations which principally involve the care of children, including children who are too young to be vaccinated or unable to be vaccinated for a valid health reason. Prima facie the Respondent’s policy is necessary to ensure that it meets its duty of care with respect to the children in its care, while balancing the needs of its employees who may have reasonable grounds to refuse to be vaccinated involving the circumstances of their health and/or medical conditions. It is also equally arguable that the Applicant has unreasonably refused to comply with a lawful and reasonable direction which is necessary for her to comply with the inherent requirements of her position, which involves the provision of care to young children and infants”.[59]

DP Ashbury
A-sense-of-justice-should-prevail-in-these-difficult-times
A sense of justice should prevail in these difficult times, vaccination polices are changing almost daily

Demonstrating reasonableness under an employer’s health and safety obligations

In regards to demonstrating reasonableness under an employer’s health and safety obligations, it is well-known that employer’s have a heavily codified duty to provide a safe place of work. Occupational Health & Safety (OHS) and Work Health & Safety (WHS) laws impose obligations on employers to provide and maintain a working environment that is safe and free of risks to health, so far as is reasonably practicable. This includes a duty to workers or employees but also other people in the workplace, such as clients and members of the public. Thus, employers are forced to consider and consult on a mandatory COVID-19 vaccinations policy by considering the effectiveness of vaccines in reducing the risk of transmission or serious illness, including the Delta variant, when fulfilling their health and safety obligations.[60]

It was held that mandatory flu vaccinations are a good practice

In Barber v Goodstart Early Learning,[61]it was held that mandatory flu vaccinations are a good practice in attempting to prevent spread of infection and minimise risk before it occurs.[62] Further, it has been held that that employers can be liable for the transmission of infectious diseases in the workplace, which would provide some impetus for the employer to mandate vaccinations.[63]

In respect of the public health advice and government recommendations, an employer can demonstrate their appropriate reliance on this advice in order to increase the reasonableness of vaccination directives. The Federal Government, State Premiers and Chief Health Officers have all reiterated that everyone who is eligible, should get vaccinated against COVID-19. The Australian Technical Advisory Group on Immunization (ATAGI) re-iterates the importance of COVID-19 vaccination as a key component of COVID-19 control with the overarching goal of protecting all people in Australia potential harm.[64]

Consequently, ATAGI notes the significant risk that the Delta variant poses to COVID-19 control and therefore continues to recommend COVID-19 vaccination for all adult Australians.[65] While these Government recommendations advocate vaccination with the use of permissive language, such as “recommend” and “should”, they could still inform a reasonable employer that mandatory vaccination is appropriate and reasonable.[66]

The greater the risk of transmission

As demonstrated, it is readily accepted that the greater the risk of transmission, the high-risk and close contact nature of the employer’s business, any vulnerability of the employer’s clients or customers and the public health advice advocating for vaccination as a measure of protection, increases the reasonableness of a mandatory COVID-19 vaccination policy. Thus, it is likely that if an employer can demonstrate these factors are applicable to their workplace environment, a direction to employees to get vaccinated against COVID-19, will be deemed both lawful and reasonable. Consequently, an employer may direct an employee to be vaccinated and refusing to do so will amount to a valid reason for termination based on the employee’s failure to comply with the reasonable and lawful direction of the employer.[67]

However, if community transmission is low, employees have minimal face-to-face interaction as part of their normal employment duties, for example employees working from home, it decreases the likelihood that a mandatory COVID-19 direction will be reasonable, given the limited risk of infection and transmission.[68]

These policies being implemented as a blanket requirement for all employees, may not be reasonable if not all employees fulfil similar duties and thus are at a similar risk. Blanket mandate statements may fail tests of proportionality, necessity and reasonableness.[69] They may be more than the absolute minimum necessary to combat the COVID-19 crisis and may not be justified on health grounds if there has not been a proper risk management assessment.[70] Ultimately, mandatory COVID-19 vaccination policies should be implemented on a case-by-case basis, upon assessing all relevant factors.

getting-the-vaccine-is-like-the-flu-shot
Getting the vaccine, is it like a flu shot in risk and effects?

Discrimination Laws

Medical Exemption for COVID-19 Vaccination

Discrimination laws exist under both federal and state legislation, with both jurisdictions prohibiting discrimination on the ground of disability. If an employer implements a mandatory vaccination policy as a condition of their employment or directs employees to be vaccinated under a lawful and reasonable directive, this may constitute indirect discrimination if the employee cannot be vaccinated. An employee or person may not be able to be vaccinated due to a disability, through a valid medical exemption, or another protected attributed under federal and state anti-discrimination laws.

An employee can defend a claim of indirect discrimination if this condition or requirement is considered “reasonable” in the circumstances. The employer holds the burden to demonstrate that the mandatory COVID-19 vaccination policy is reasonable and a range of factors are considered to determine reasonableness. The reasonableness of such a policy increases if there is a relevant public health order, if there are health and safety concerns for which a COVID-19 vaccine would be appropriate, the nature of the work performed by the employee, whether the employee has contact with other employees or the general public, whether the employer is considered to be in a high-risk industry and whether there are any alternative methods that might reasonably achieve the employer’s objective without recourse to the mandatory COVID-19 vaccine requirement, such as testing regimes, remote work, physical distancing or personal protective equipment.[71]

Employers are obligated to make reasonable adjustments

Employers are obligated to make reasonable adjustments to accommodate people with disabilities or in respect of their protected attributes, but not if it will cause an unjustifiable financial hardship on the employer or disrupt the workplace.[72] If the adjustments are unreasonable or if they would still not allow the employee to perform the inherent requirements of the job, there may be a valid reason for dismissal in regards to capacity and it will not constitute discrimination under federal and state laws.

Although the Fair Work Commission does not decide claims brought under anti-discrimination laws, Commissioner Hunt did hold that an employer’s mandatory influenza vaccination policy for all of its client-facing employees, without allowing any medical exemptions, was lawful and reasonable.[73] In deciding this, Commissioner Hunt had regard to the high-risk nature of aged care, the high risk of potentially contracting influenza and COVID-19 and the employer’s legal obligation to protect the safety of their employees or clients in order to decrease their liability for any breaches of their duty of care.[74] Ultimately, Commissioner Hunt held that the employer’s rights, together with their responsibility to their clients, overrode the employees right to decline the vaccination but remain employed.[75]

Everybody-has-a-right-to-feel-safe-in-the-workplace
Everybody has a right to feel safe in the workplace

Conclusion to vaccination policies

An Australian employer may have the legal right to mandate COVID-19 vaccinations and require employees to receive the vaccine. An employer may achieve this through introducing policies which render COVID-19 vaccination an inherent requirement of the job or by making a lawful and reasonable directive for employees to be vaccinated. In any event, government-issued mandates clearly provide the strongest justification for mandating COVID-19 vaccines in a workplace. In the absence of a government-issued mandate, it is clear there is a higher burden on employers as they must establish that directing an employee to be vaccinated, is lawful and reasonable.  

As discussed, there are many ways in which an employer can increase their reasonableness but notwithstanding this, there are clear scenarios in which an employer will likely not succeed in mandating vaccinations for particular employees. If an employer mandates such policies and does not allow for medical exemptions, they may not be able to defend a discrimination complaint if they have not conducted a proper risk management analysis prior to implementing the policy. In addition, an employer is clearly required to assess each exemption on a case-by-case basis in order to determine whether they have made reasonable adjustments and defend any claim of discrimination.

For the avoidance of doubt and legal recourse, it is vital that employers implement mandatory COVID-19 vaccination policies, or direct their employees to be vaccinated, on a case-by-case basis and only after careful consideration of the necessity and reasonableness of such impositions.

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How Can We Help?

Are you looking at making a claim but are unsure about how to approach the situation? You may need to seek advice and/or representation through a paid agent or lawyer. As independent workplace advisors, A Whole New Approach (paid agents) can provide you with representation in your unfair dismissal or general protections claim.

A Whole New Approach has run and been successful in over 10,000 cases in the Fair Work Commission, Anti-Discrimination Commissions, Boards and Tribunals. We draft the claims and applications on your behalf to a Federal Court standard, run the conciliation conferences, run arbitrations and have thousands of decisions published in the various jurisdictions. Although we would act as your advocate, we provide even handed advice in regard to the prospects of your case.

We are A Whole New Approach P/l, we are not lawyers, but the nations leading workplace advisors. If you are unsure whether you have a Fair work Australia or Fair work Commission claim or which application you can pursue, please give us a call on 1800 333 666 for a free and confidential consultation. Its confidential, prompt and honest. We work in all states, Vic, NSW, Qld, Tas, SA, WA. Thinking about lodging a unfair dismissals claim, been sacked, or involved in workplace investigation, or a constructive dismissal, get advice

Another article on workplace issues and vaccines, that is informative, click here

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[1] Department of Health (Cth), About Australia’s COVID-19 Vaccine Rollout (Web Page, 25 September 2021) https://www.health.gov.au/initiatives-and-programs/covid-19-vaccines/about-rollout.

[2] DA v Baptist Care SA [2020] FWCFB 6046, [28].

[3] [1999] HCA 63.

[4] Ibid [31]; Qantas Airways Ltd v Christie (1998) 193 CLR 280, 295 (Gaudron J).

[5] X v The Commonwealth [1999] HCA 63, [11].

[6] Ibid.

[7] [2021] FWC 2156.

[8] Ibid [430].

[9] Barber v Goodstart Early Learning [2021] FWC 2156, [385].

[10] Qantas Airways Ltd v Christie (1998) 193 CLR 280, [34].

[11] Barber v Goodstart Early Learning [2021] FWC 2156, [384].

[12] Ibid [384].

[13] Barber v Goodstart Early Learning [2021] FWC 2156 [388].

[14] Qantas Airways Ltd v Christie (1998) 193 CLR 280, [34].

[15] Barber v Goodstart Early Learning [2021] FWC 2156, [396].

[16] [2021] FWC 1818; [2021] FWCFB 6015.

[17] Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWC 1818, [59].

[18] Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWC 1818, [63].

[19] Ibid.

[20] Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWCFB 6015, [54].

[21] Ibid [81].

[22] Ibid [80].

[23] Ibid [51].

[24] Ibid [54].

[25] Ibid.

[26] Ibid [60].

[27] Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWCFB 6015, [164].

[28] Barber v Goodstart Early Learning [2021] FWC 2156, [309].

[29] Ibid[386]; citing Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.

[30] Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWCFB 6015, [109].

[31] Ibid [151].

[32] Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWCFB 6015, [182].

[33] Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320, [69]; citing Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWCFB 6015, [182]-[183].

[34] Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320, [69].

[35] Ibid.

[36] Barber v Goodstart Early Learning [2021] FWC 2156, [303].

[37] R v Darling Island Stevedoring and Lighterage Co Ltd; Ex parte Halliday; Ex parte Sullivan (1938) 60 CLR 601, at 621.

[38] Downe v Sydney West Area Health Service (No 2) (2008) 71 NSWLR 633; 218 FLR 268; [2008] NSWSC 159, at [342].

[39] Barber v Goodstart Early Learning [2021] FWC 2156, [303].

[40] Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWC 1818, [57].

[41] Grant v BHP Coal Pty Ltd [2017] FCAFC 42, [94]; citing R v Darling Island Stevedoring and Lighterage Co Ltd; Ex parte Halliday and Sullivan (1938) CLR 601, 621-62 (Dixon J).

[42] Ibid.

[43] Glover v Ozcare [2021] FWC 2989.

[44] Ibid 242.

[45] CFMEU v Glencore Mt Owen Pty Ltd [2015] FWC 7752, [11]; citing McManus v Scott-Charlton (1996) 70 FCR 16, 30C.

[46] Woolworths Ltd v Brown (2005) 145 IR 285, [24].

[47] Ibid.

[48] Woolworths Ltd v Brown (2005) 145 IR 285, [24].

[49] Ibid [35].

[50] Ibid.

[51] Barber v Goodstart Early Learning [2021] FWC 2156, [309].

[52] Ibid.

[53] Fair Work Ombudsman, COVID-19 vaccinations: workplace rights and obligations (Web Page, 21 October 2021) < https://coronavirus.fairwork.gov.au/coronavirus-and-australian-workplace-laws/covid-19-vaccinations-and-the-workplace/covid-19-vaccinations-workplace-rights-and-obligations.

[54] Glover v Ozcare [2021] FWC 2989.

[55] Ibid [247].

[56] Glover v Ozcare [2021] FWC 2989 [242].

[57] Barber v Goodstart Early Learning [2021] FWC 2156, [435].

[58] [2020] FWC 6083.

[59] Ibid [32].

[60] Fair Work Ombudsman, COVID-19 vaccinations: workplace rights and obligations (Web Page, 21 October 2021) https://coronavirus.fairwork.gov.au/coronavirus-and-australian-workplace-laws/covid-19-vaccinations-and-the-workplace/covid-19-vaccinations-workplace-rights-and-obligations.

[61] [2021] FWC 2156.

[62] Ibid [319].

[63] Grinham v Tabro Meats Pty Ltd [2012] VSC 491, [6].

[64] Department of Health (Cth), ATAGI statement regarding COVID-19 vaccines in the setting of transmission of the Delta variant of concern (News Release, 2 August 2021) https://www.health.gov.au/news/atagi-statement-regarding-covid-19-vaccines-in-the-setting-of-transmission-of-the-delta-variant-of-concern.

[65] Ibid.

[66] Barber v Goodstart Early Learning [2021] FWC 2156, [326].

[67] Ibid [396].

[68] Fair Work Ombudsman, COVID-19 vaccinations: workplace rights and obligations (Web Page, 21 October 2021) https://coronavirus.fairwork.gov.au/coronavirus-and-australian-workplace-laws/covid-19-vaccinations-and-the-workplace/covid-19-vaccinations-workplace-rights-and-obligations.

[69] Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWCFB 6015, [181].

[70] Ibid.

[71] Australian Human Rights Commission, COVID-19 vaccinations and federal discrimination law (Web Page, 2021) https://humanrights.gov.au/about/covid19-and-human-rights/covid-19-vaccinations-and-federal-discrimination-law.

[72] See for example Disability Discrimination Act 1992 (Cth) s.21B.

[73] Glover v Ozcare [2021] FWC 2989, [242].

[74] Ibid [247].

[75] Ibid [262].

Dismiss me? Pending Court Cases Over Mandatory Vaccination

Dismiss-me?-Pending-Court-Cases-Over-Mandatory-Vaccination
Vaccination and the ability to work is in the media everyday, can you be dismissed is hotly debated

Dismiss me? Pending Court Cases Over Mandatory Vaccination

As of the mid April 2022, the issue of vaccination is still controversial. Possible it will never be resolved. Lets briefly revisit the debate and seed what we have lean’t so far.

Can they dismiss me?

We are getting numerous calls daily as to whether employees have to be vaccinated. Its not for us at A Whole New Approach to decide what’s best for you. Other than I’m indicating listen to the science. However even this is being debated. I’m surprised how many new scientist that have evolved since the COVID-19 crisis has started. “Dismiss me? Pending Court Cases Over Mandatory Vaccination”. Lets now answer the question without the emotion.

What does the Government and The Courts Say

Dismiss me?, what’s the Govt, and courts say. The Australian Government has mandated the vaccination of residential aged care workers and hence, being vaccinated against COVID-19 becomes a condition of work. Or “inherent requirement” of the role.  Accordingly, state government-mandated vaccination requirements for certain roles or industries, would have the same effect of determining that a COVID-19 vaccination is an inherent requirement of the role. For instance, the New South Wales (NSW) and Queensland (QLD) Governments have announced that COVID-19 vaccinations are mandatory for health care workers. They must have received at least one dose by 30 September 2021, unless an exemption applies.

Dismiss me?

If an employee refuses to be vaccinated in accordance with the federal and state government-mandated vaccination requirement, the employer will have grounds to dismiss the employee. They cannot perform the inherent requirements of the role. If the employee cannot be vaccinated due to medical or other reasons, which constitutes a disability for the purposes of anti-discrimination laws.  They can also likely be dismissed, provided there are no reasonable adjustments that the employer could make that would enable the employee with the disability, to continue their employment.[1] 

employee-rights-not-be-dismissed
Many non vaccinated employees feel they have lost their rights to work. But 95% of the population have voted to get vaccinated, by being vaccinated. They have rights to feel safe. Its all being played out in the courts and the tribunals, presently the unvaccinated are losing.

Public Health Orders and dismissals

As it currently stands, the Public Health Orders are enacted under delegated legislation provisions, which are contained within each State’s respective Public Health Act.  Delegated (also known as subordinate) legislation is legislation made not directly by an Act of the Parliament, but under the authority of an Act of the Parliament. Consequently, a number of employee are challenging the rationality and legality of a vaccine mandate in the NSW Supreme Court. QLD Supreme Court and Queensland Industrial Relations Commissions (QIRC).

The common thread amongst these disputes is that employees claim that Parliament would not have intended to give the Health Minister “the powers to breach bodily integrity” without clear legislative indication. These numerous cases are currently pending in the state courts. Many people are eagerly awaiting a determination or outcome of these court actions, due to their opposing view on these mandates.

This then begs the question, can I ask my employer to hold off on executing these mandates, in hope of them being rendered invalid by the pending court actions? The answer to this question in short is no. These court actions, although pending, have not yet rendered the current mandates invalid or illegal. Thus, even if there is a pending action which attempts to challenge the validity of such mandates, it is in essence only pending and we should not hold our breaths.

Dismiss-me?-Pending-Court-Cases-Ove- Mandatory-Vaccination
These are difficult untested times, your health matters, so is having a job. Im seeing some seriously good / important careers go don’t the toilet over all this.

Your employer reserves the right and is obligated to enforce the mandates

Your employer reserves the right and is obligated to enforce the mandates as they currently stand. Regardless of the potential of them being rendered invalid. When an employer makes the tough decision to terminate an employee for refusing the jab. The employer has to look to what the laws and mandates are at the current time. What is in the mind of the decision maker, is a highly important factor when establishing a valid reason for dismissal and as it currently stands, these mandates are valid.

With this being said, if your employer terminates your employment and in the event these mandates happen to be rendered invalid, you can always reapply for your job or reinstatement through an unfair dismissal claim.

The purpose of the unfair dismissal provisions

This is to establish a framework for dealing with unfair dismissal that balances the needs of business (including small businesses) and the needs of employees, to establish procedures which are quick, flexible and informal. Address the needs of employers and employees and to provide remedies where a dismissal is found to be unfair, with an emphasis on reinstatement. If these mandates are rendered invalid, then the valid reason for the dismissal is rendered invalid and the dismissal may be rendered harsh, unjust or unreasonable.

If this is the case, the employee can lodge an Unfair Dismissal claim (Form F2), with the Fair work Commission, within 21 days after the termination takes effect and the Commission may allow a further period for lodgment in exceptional circumstances. This means if you are outside the 21 days but the reason for the delay is the pending court action which rendered the mandates and thus dismissal invalid, then there may be an exception granted.

fair-work-Australia-dismissal-claim
Fair work Australia (FWC) is overwhelmed with various claims relating to vaccinations, consultation disagreements, unfair dismissal type arguments

Fair work Commission will set the matter down for a conciliation conference

Once an application is lodged, the Fair work Commission will set the matter down for a conciliation conference. A private proceeding conducted by an independent conciliator. This conference is an informal method of resolving an Unfair Dismissal dispute in which an independent conciliator will assist the parties in exploring options for resolution. Help them to reach an agreement without the need for a formal hearing or court proceedings.

If the only reason for your dismissal is the vaccination, it is arguably that the trust and confidence in the relationship may not be broken and so reinstatement may be a viable option. In the alternative, an employee may be awarded compensation for the unfair dismissal itself.

Nevertheless, nothing is stopping an employee from reapplying for their job if a COVID-19 vaccination is no longer required. It is strongly encouraged however, that people do not hold onto the hope or faith that this requirement will magically disappear. Or be overruled. Everyone has the choice as to whether they get vaccinated or not. In the same way, your employer has the choice to terminate or refuse to hire, unvaccinated employees.

Dismiss me?, can they do it?

It is increasingly evident that proof of vaccination is becoming a condition or requirement for employment. This is even in the absence of mandates.

Dismiss me? Pending Court Cases Over Mandatory Vaccination, the topic is controversial and emotional for many. I understand that, these are crazy times for us all. Questions about dismiss me? A Whole New Approach are not lawyers, what we are is the nations leading workplace advisors. AWNA are happy to give you advice on unfair dismissals, general protections. Any of your personal circumstances in these difficult times, advice is free.

Termination of employment, diversity in the workplace, orders to stop bullying or sexual harassment. All Fair work Australia and Fair work Commission issues, all employment rights issues, give us a call. Call today on 1800 333 666. We work in all states, Victoria, NSW, QLD, WA, SA, Tas, NT

Articles on “Dismiss me? Pending Court Cases Over Mandatory Vaccination”

An article on pandemic rights and the workplace that may interest you, click here

Blog on COVID-19 and workplace rights that’s essential reading, click here


[1] DDA s.21(A).

Mandatory Jab, SPC Refuses to Back Down

redundancy-protest
Everybody got rights, COVID has bought this more into focus (companies and employees). Don’t get dismissed

Mandating the COVID-19 vaccine for all staff or you will be dismissed

Mandatory jab, SPC refuses to back down, is certainly controversial. Shepperton based food manufacturer, SPC, has become the first Australian company to mandate the COVID-19 vaccine for all of its 450 onsite staff and visitors. SPC is refusing to back down on their vaccine mandate policy for staff. Due to the recent the increased risk of transmission posed by the Delta variant of the COVID-19 virus. SPC requires that all staff receive their first dose of the COVID-19 vaccine by November 2021. This mandate has not been made pursuant to a public health order. If employees are not vaccinated by the stipulated timelines you will face dismissal. Rather, the Chairman of SPC, Hussein Rifai, explained that the decision stems from SPC’s workplace health and safety obligations to their employees and business associates.

Properly Consult

However, the Australian Manufacturing Workers’ Union (AMWU) contend that SPC failed to properly consult with them and their employees over their new mandatory vaccination policies. AMWU say SPC’s planned timeline for workers to be vaccinated. To be booked in by September and vaccinated by November – is unrealistic as some working people are still not eligible or otherwise able to access the vaccine. Added that they may be dismissed and this would be unfair. The AMWU backs vaccination. But claims that SPC’s plans to call for mandatory vaccination of workers needs to come with proper consultation.

Lawful and reasonable direction

In light of SPC’s “lawful and reasonable direction” to their employees. Food manufacturers and the Australian Food and Grocery Council have called on the Federal Government to clarify the legality of policies which mandate a vaccine. Particularly the consequences of a pending dismissal. The Fair Work Ombudsman’s current stance is for employers to assume that they can’t require their employees to be vaccinated against COVID-19. Given that a fruit and vegetable giant, such as SPC, has made the move to mandate vaccinations. The Fair Work Ombudsman is now forced to consider this position further and they are set to provide advisory guidance shortly.

Mandatory -jab-SPC-Refuses-to-Back- Down
Mandatory jab, SPC refuses to back down, everybody has a point of view

Federal Government’s Position on Mandatory COVID-19 Vaccination Policy

Advice provided by the Federal Government has given employers ‘the green light’ to mandate COVID-19 vaccinations in the workplace in reasonable circumstances. This advice provided to National Cabinet stated that there was a legally reasonable basis for four tiers of workers to be captured by vaccine mandates. Including workers in direct threat of contracting COVID-19 such as airline workers; employees working with other people more likely to contract COVID-19 such as medical professionals; individuals in public-facing roles such as supermarket workers; and the rest of the working population.

On this information, Prime Minister Scott Morrison confirmed that these legal decisions are still required to pass a ‘reasonable test’. An employer is required to consider a number of circumstances before making a formal decision to mandate COVID-19 vaccines, including:

  • whether the mandate has been made in line with health advice enforced by the Federal Government;
  • the industry of the relevant company. The extent of physical interaction and whether they are an essential service as outlined by the relevant state health department;
  • the delays experienced in the vaccine roll-out which limits the eligibility of certain populations;
  • the employer’s workplace health and safety obligations and common law duties of care;
  • whether the direction constitutes discrimination prohibited by Australia’s anti-discrimination regime;
  • human rights legislation such as Victoria’s Charter of Human Rights and Responsibilities;
  • any relevant provisions in the applicable employment contract, modern award or enterprise agreement; any relevant consultation obligations;
  • the availability of reasonable exemptions to the direction and effective alternatives to vaccination. (such as the use of personal protective equipment); and
  • whether the employee can perform the requirements of their role without being vaccinated.

Fair Work Commission – Mandatory Vaccination Policy

The Fair Work Commission (FWC) is yet to provide concrete guidance on COVID-19 vaccines specifically. However they have discussed mandatory influenza vaccines and their necessity in particular high-risk industries.

In unfair dismissal case of Ms Bou-Jamie Barber v Goodstart Early Learning,[1] the Applicant was dismissed after objected to the influenza vaccine. In April 2020, the Respondent introduced an immunization policy, requiring that all staff must receive the influenza vaccination unless they have a medical condition which makes it unsafe for them to do so.

The Applicant said that she has a sensitive immune system by reason of her auto immune and coeliac disease. Consequently raised her objections to the vaccination. Ultimately, the Respondent determined that the medical certificate provided by the Applicant was not sufficient to support an objection the influenza vaccination. The Applicant’s employment was dismissed on 13 August 2020 for her failure to be vaccinated and meet the inherent requirements of her role.

Given the current climate, FWC Deputy President Lake stressed that this unfair dismissal decision is directly related to the influenza vaccine alone. Employers should be cautious before relying on it more broadly to enforce COVID-19 vaccinations for its employees. Nevertheless, Deputy President Lake has recognised that it is reasonable for a childcare provider to mandate flu vaccinations. For those staff who deal with children on a regular basis and in such close proximity. Deputy President also held that the flu vaccination was a lawful direction. It fell within the scope of the Applicant’s employment.

In a 92-page decision, Deputy President Lake held that the Applicant’s dismissal was not harsh, unjust or unreasonable. As the Applicant had chosen not to comply with a lawful and reasonable direction.

coronavirus-advice
Nothings easy in this pandemic, avoid dismissal

Employer mandated vaccinations have been and will continue to be an area of debate.

There is no doubt that employer mandated vaccinations have been an area of debate during the COVID-19 pandemic. However, these decisions support employers within particular industries, such as childcare and aged care, who are wishing to have their employees vaccinated against influenza. It is still unclear as to whether the rationale in these decisions will be applied to the COVID-19 vaccinations but in the case of Ms Bou-Jamie Barber v Goodstart Early Learning,[2] Deputy President Lake did remake that. “…it is beyond the scope of this decision to consider whether the conclusions above extend even as far as the entirety of the Respondent’s business, as the role each employee performs in fulling the Respondent’s undertaking may differ.”

Reasonable and lawful (mandatory jab)

As such, it is certainly not the case that employer mandated vaccinations will be considered reasonable and lawful in any context. It will be interesting to see what cases arise following this decision. How the FWC determines the reasonableness and lawfulness of vaccination policies. Particularly within various other industries not concerned with health-care or childcare. However, as noted by SPC’s Chairman, an employer may feel obligated to mandate vaccines.

In an attempt to keep their workplace safe for all employees and visitors. Mr Rifai from SPC contends that their vaccination policy stems from SPC’s workplace health and safety obligations to their employees and business associates. Thus, this may open the door for any employers to justify mandating COVID-19 vaccines. Following on from this sense of obligation to provide a safe work environment for all.

Conclusion to Mandatory jab, SPC refuses to back down

Any questions regarding “Mandatory jab, SPC refuses to back down, we would love to hear from you. All sensible debate is healthy. A Whole New Approach P/L, we are not employment lawyers, or a government agency or body. We are independent workplace advisors. AWNA lead in advocacy work, representation and research on all matters relating to the workplace.

Any Fair work Australia and Fair work Commission matters, termination of employment, including being sacked (dismissed), general protections, workplace investigations. Workers rights and how they are effected by the pandemic. Any diversity in he workplace issues, we are happy to hear from you. We are here for you. We work in all states, including Victoria, NSW, QLD, Tas, SA, WA, NT

Articles similar to Mandatory jab, SPC refuses to back down.

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Dismissed for refusing to take the vaccine

not-getting-the-vaccine
No one likes needle, are you volunteering or are you forced?. Taking one for team Australia as we force ourselves out of lockdowns.

Dismissed for refusing to take the vaccine

As of April 2022 employees are still getting dismissed for not getting vaccinated. Is it fair?, its not for me to say, its what the courts and tribunals decide that matters. I will state this i don’t like seeing people losing seriously good careers, people with upwards of 20-30 years service, families suffering because someone won’t get vaccinated. Dismissed for refusing to take the vaccine will always be controversial.

As 2022 progresses, my view is that Australia will reach a fork in the road. Either everybody is vaccinated if you want to work. Similar to police checks. Or it will go the other way, as the pandemic subsides, or just everybody going back to normality (whatever that means) and employers won’t care less if your vaccinated or not.

Dismissed in any circumstances is tough, being dismissed for refusing to take the vaccine, is controversial as it gets

Being dismissed for refusing to take the COVID-19 vaccine is controversial. We are getting calls daily on this topic Given the recent lockdowns in Sydney and Melbourne, state and federal governments are increasingly emphasizing the vaccine as the most effective method to control the COVID-19 pandemic. To prevent further lockdowns. But can your employer embrace this call-to-arms and make it mandatory for you to get the vaccine in order to maintain your employment? Is this an unfair dismissal?

The Fair Work Commission has not, as of yet, clearly decided whether this is the case. But what we do know is that there is no uniform answer. Each case must be decided on its own facts.

The Commission recently elaborated on the role of mandatory vaccine policies in Glover v Ozcare [2021] FWC 2989.

This is also particularly relevant now that SPC the large food processing and canning company, today (4/8/2021) announced it is mandating that to work at the company in the future you must be vaccinated.

Can-I-be-dismissed
Can i be dismissed? Will this be a way of life?

Glover v Ozcare

Ms Glover was a 64-year-old care assistant that delivered aged-care to Ozcare clients in their homes. She refused the influenza vaccine, under Ozcare’s mandatory immunisation policy for all client-facing roles, on what she alleges was an anaphylactic reaction to the flu shot when she was seven years old. After exhausting her leave entitlements, Ms Glover was dismissed by Ozcare as they were no longer offering her shifts.

The Fair work Commission decided that Ms Glover was not unfairly dismissed because Ozcare’s direction to get the flu shot was lawful and reasonable. Because Ms Glover refused a lawful and reasonable direction, she was considered to no longer meet the inherent requirements for her role.

The direction was lawful, notwithstanding that it went above and beyond the Aged Care Direction by the Queensland state government at the time (which required anyone who entered or remained on aged-care premises to be vaccinated against influenza). The Fair work Commission observed that it remained lawful because no employee was being physically forced to get the jab. The prospect of termination if an employee did not get vaccinated was lawful.

In deciding that the direction was reasonable, the Commission paid significant regard to the vulnerability of its patients. Ultimately, the Commission accepted that the mandatory immunization policy was a reasonable business decision to protect and retain its elderly clients. Ms Glover was not “a widget maker in a widget factory where her status as an unvaccinated employee might not matter”.

Dismissed-or-refusing-to-take-the-vaccine
Is it going to be the new normal?

What does this mean for the COVID-19 vaccine?

The unfair dismissal case of Glover v Ozcare shows us that there are multiple factors at play in determining whether you can be dismissed for refusing to take the COVID-19 vaccine. Relevant factors in determining whether your employer can lawfully and reasonably require you to take the jab include:

  • The industry you work in and whether you are around vulnerable members of the community
  • The importance of vaccination to the survival of your employer’s business
  • The importance of vaccination to your particular role within your employer’s business
  • Whether any other appropriate exemptions or alternatives can be offered to you in the course of employment. (such as changing from client-facing to back-of-house)
  • The reason for your refusal (it may constitute discrimination if your refusal is based on medical or religious reasons)
  • If your refusal is based on medical reasons, the quality of your medical evidence.

Unfair and unlawful dismissal claims

As workplaces implement their own vaccine mandates. Placing their employees on unpaid leave or terminating their employment altogether if they refuse to get vaccinated without a medical exemption. It remains to be seen just how many unfair dismissal or general protections claims will be lodged. Whether they will succeed. The success rate of claims lodged is non existent to date. The only way I can see unfair dismissal claims succeeding at the moment is, if you could argue that you could work from home for the next say two years. With no or very little adjustment.

Although each case will depend on its own set of facts, this has become largely new territory for representatives and lawyers who specialize in this field of law.

Dismissed for refusing to take the vaccine

I hope this article was of assistance to you. There will inevitably further cases in the Fair Work Commission that will tell us more about the role of COVID-19 vaccines in other industries. Until then, stay safe! Your welcome to call us at A Whole New Approach P/L for free advice. 1800 333 666 anytime regarding your workplace issue, unfair dismissal or general protections claims. We are not employment lawyers, but Australia’s leading workplace advisors. termination of employment, diversity in the workplace, whatever, call us. We work in all states, Victoria, NSW, QLD, SA, WA, Tas, NT

FAQ’s, click here

Articles of interest relating to dismissal and vaccines

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Misconduct Dismissal Due To COVID-19

Misconduct-Dismissal-Due-To-COVID-19

Misconduct Dismissal Due To COVID-19

Over the past year, the Fair Work Commission in Victoria has been inundated with claims associated to COVID-19. Asnew policy and procedures that employers have enacted in order to create a COVID-Safe environment. Unfortunly some employees also use the pandemic as an excuse to take advantage of employees. This includes dismissing employees falsely for misconduct. This has led in a increase in unfair dismissal and general protection claims at the FWC. Misconduct Dismissal Due To COVID-19 takes various forms.

Was unfair dismissed

A casual disability worker in Victoria claimed she was unfairly dismissed by her employer. This is when she breached the temperature check procedure after recording a high temperature but continued to commence her shift. The Fair work Commission found that this was a valid reason for dismissal and was duly satisfied that the dismissal was not harsh, unjust or unreasonable. Fair Work Victoria, presided by Deputy President Mansini, heard the case of Fesshatsyen v Mambourin Enterprises Ltd [2021] FWC 1244 on 9 March 2021.

Context is important

Context is important when it comes to workplace disputes. In 2021, Victoria suffered its fair share of COVID-19 cases and outbreaks in health facilities. The media scrutinised the public health response to a great extent. Therefore, when Company’s put in place protective measures against COVID-19, Fair Work in Victoria found no reason for there to been an unfair dismissal case. As the worker would have willfully been aware of the need to comply with such regulations and to take precautions when working in a vulnerable setting.

serious-misconduct-will-lead-to-dismissal
You know you cannot act this way. This is a very simplistic way of looking at what goes on in the workplace. some employers are like crocodiles sitting on the edge of the river. All the patience in the world, watching you. Then they attack by stealth, quietly and before you know it your dismissed and out the door. So do not put yourself at risk.

Must establish whether serious misconduct was willful or deliberate

The Fair work Commission in Victoria must establish whether serious misconduct was willful or deliberate. Is inconsistent with the continuation of employment with the employer.[1] This is because the disability worker’s contract stipulated terms that required its employees to adhere to certain health and safety policies. The FWC was satisfied that this constituted a valid reason for dismissal in regards to conduct and was not harsh, unjust or unreasonable and therefore, the Applicant was not unfairly dismissed.

Lack of insight into the conduct and failure to take responsibility

Another case in Victoria, where serious misconduct resulted in a dismissal was the case of Parris v Trustees of Edmund Rice Education Australia T/A St Kevin’s College [2021] FWC 2341. The Applicant was dismissed in February 2020 for serious misconduct involving inappropriate conduct of a sexual nature towards student both physical and verbal. Furthermore, the difference in this case was that the Applicant had previously received warnings for conduct of a similar nature when he posted on social media.

The Commission did find that the investigation process was unfair and did not comply with procedural fairness. However, Fair Work Victoria, found that the Applicant’s ‘lack of insight into the conduct and failure to take responsibility’ outweighed the procedural unfairness. Therefore, the dismissal was concluded to be neither harsh, unjust nor unreasonable.

Standard of proof

It should also be noted that as per Briginshaw v Briginshaw, the standard of proof remains to be on the balance of probabilities. However, the more serious the alleged misconduct, the stronger the nature of the evidence must be.[2] (Many employees think the company need the video, the confession, the DNA like on television this is the criminal test.)

In the case of the disability worker, the Applicant was summarily dismissed. A summary dismissal takes place when the misconduct is extremely serious. The dismissal then has the capability to be effective immediately without notice or payment in lieu of a notice period.

In certain circumstances, Fair work Commission may look to the proportionality of the misconduct in relation to a summary dismissal. In the case of Fesshatsyen v Mambourin Enterprises Ltd [2021] FWC 1244, the court was satisfied that in proportion to the misconduct, a summary dismissal was not harsh, unjust or unreasonable.

Misconduct-Dismissal-Due-To-COVID-19
Sometimes the employer behaviors’ in such a way, to get a reaction from you. You react, swear, get loud, walk forward. Then they dismiss you for serious misconduct. When all you wanted to do was defend yourself, perhaps just trying to make a point.. Some employers let others or the manager to act in such a way to get you to react. Don’t react, go to HR, you have rights at the Fair work Commission, call us.

Tougher approach to misconduct

Furthermore, the two recent decisions in Victoria by the Fair work Commission suggest that the Commission is taking a tougher approach to serious misconduct. That this may in turn result in more dismissals from serious misconduct investigations. Especially in industries where there is a high standard of duty of care towards clients, students or patients. Therefore, remorse and responsibility, two moral values play a significant role in the legal outcomes of serious misconduct dismissals in Victoria.

Conclusion

I hope this brief article Misconduct Dismissal Due To COVID-19 has made you more aware of pitfalls of serious misconduct and current trends. It goes without saying being dismissed for serious misconduct can be hugely determinable to your career and reputation. As the pandemic progresses, everybody is stressed, cranky, uncertain. I have notice that what a lot of employers in the past would tolerate, not care less about, employees are now dismissed. Peoples fuses are getting shorter.

Of course the employer has the financial incentive to use serious misconduct to dismiss employees. They don’t have to pay notice, long service leave. In many cases then also refuse to pay relocation cost because you breached the employment contract. Disgraceful behaviour. Want further clarification?, or confused?, concerned for your job?, your career?, give us a call, its free 1800 333 666 , we are happy to assist.

We are A Whole New Approach, P/L, we are not lawyers, but the nations leading workplace advisors. We are here for you, anything to do with the workplace call us. Fair work matters, abandonment of employment, sacked, bullied. we are experienced, prompt, honest, we keep it real. All states, NSW, Vic, QLD, SA, WA, Tas.

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[1] Edwards v Justice Giudice [1999] FCA 1836

[2] Briginshaw v Briginshaw [1938] HCA 34

What Are Your Rights? the Workplace and Dismissals

What-Are-Your-Rights?-the-Workplace- and-Dismissals
Know your rights, excise them, we are here to help yo

What Are Your Rights? the Workplace and Dismissals

If you have experienced different or less favourable treatment in your workplace due to your personal circumstances with COVID-19. You may have been subjected to discrimination and certainly should not be dismissed. If you can do the inherent functions of the role without putting others at risk. This is just an example of the changing Australian workplace. Russians have been banned from playing tennis this years at Wimbledon. Is this discrimination or Britain excising its democratic right to decide who comes to their country? What Are Your Rights? the Workplace and Dismissals is been updated, please read on.

Your rights are important.

There are certain personal attributes that are protected by discrimination laws, such as race, disability, gender, pregnancy and family responsibilities. COVID-19 is not a ‘protected attribute’ itself, but discrimination due to COVID-19 is protected by other attributes.

What could the less favorable treatment look like?

  • Dismissal
  • Reduced hours
  • Not being hired
  • Having your job changed to your disadvantage
  • Different treatment to colleagues
  • Not being given legal entitlements, such as leave or flexible work conditions

I’ve been treated unfairly because I had COVID-19 or was forced to isolate.

This is disability discrimination.

‘Disability’ includes any injuries or medical conditions, such as COVID-19.

  • If you are still employed, consider a General Protections (Not Involving Dismissal) claim in the Fair Work Commission.
  • If you have been dismissed within the last 21 days, consider a General Protections (Involving Dismissal) claim in the Fair work Commission.
  • You have been dismissed more than 21 days ago but within the last 12 months. Consider a Discrimination Complaint in your State human rights body.

I’ve been treated unfairly because my employer thought I had COVID-19, even though I didn’t.

This is also disability discrimination. ‘Disability’ includes any injuries or suspected medical conditions, such as COVID-19.

  • If you are still employed, consider a General Protections (Not Involving Dismissal) claim in the Fair Work Commission.
  • If you have been dismissed within the last 21 days, consider a General Protections (Involving Dismissal) claim in the Fair work Commission.
  • If you have been dismissed more than 21 days ago but within the last 12 months, consider a Discrimination Complaint in your State human rights body.

I’ve been treated unfairly because I was not allowed to work from home, even though I am at high risk from COVID-19.

This is disability discrimination. ‘Disability’ includes any injuries or medical conditions which would make you more susceptible to COVID-19. Or place you at greater risk.

  • If you are still employed, consider a General Protections (Not Involving Dismissal) claim in the Fair Work Commission.
  • If you have been dismissed within the last 21 days, consider a General Protections (Involving Dismissal) claim in the Fair Work Commission.
  • If you have been dismissed more than 21 days ago but within the last 12 months, consider a Discrimination Complaint in your State human rights body.

I’ve been treated unfairly because I was not allowed to work from home, even though I am pregnant and therefore at risk from COVID-19.

what-are-your-rights-in-the-new-COVID-normal

This is pregnancy discrimination.

You cannot be treated unfairly due to being pregnant, especially when you have a valid health concern, such as COVID-19.

  • If you are still employed, consider a General Protections (Not Involving Dismissal) claim in the Fair Work Commission.
  • If you have been dismissed within the last 21 days, consider a General Protections (Involving Dismissal) claim in the Fair Work Commission.
  • If you have been dismissed more than 21 days ago but within the last 12 months, consider a Discrimination Complaint in your State human rights body.

I’ve been treated unfairly because I was not allowed to work from home, even though my family member is at high risk from COVID-19.

This is family or carer’s responsibilities discrimination.

If your working conditions would place a family member at risk, this can be considered family responsibilities.

  • If you are still employed, consider a General Protections (Not Involving Dismissal) claim in the Fair Work Commission.
  • If you have been dismissed within the last 21 days, consider a General Protections (Involving Dismissal) claim in the Fair Work Commission.
  • If you have been dismissed more than 21 days ago but within the last 12 months, consider a Discrimination Complaint in your State human rights body.

I’ve been treated unfairly because I was not allowed to work from home, even though I have family/caring responsibilities due to COVID-19.

forced-resignation-this-is-a-dismissal
Couldn’t do the roster the employer demanded, forced to resign. This is a dismissal.

This is family or carer’s responsibilities discrimination. If your working conditions would prevent you from fulfilling your responsibilities to your family (for example, as a parent) or as a carer (for example, looking after old or unwell parents), you may be protected.

  • If you are still employed, consider a General Protections (Not Involving Dismissal) claim in the Fair Work Commission.
  • If you have been terminated within the last 21 days, consider a General Protections (Involving Dismissal) claim in the Fair Work Commission.
  • If you have been dismissed more than 21 days ago but within the last 12 months, consider a Discrimination Complaint in your State human rights body.

I’ve been treated unfairly because I made a complaint about my workplace’s COVID-19 policies and procedures.

This is not discrimination. However, making a complaint is considered ‘exercising a workplace right’ and is hence covered by General Protections laws. You may also be covered by State victimisation laws, depending on the nature of the complaint and to whom it was made.

  • If you are still employed, consider a General Protections (Not Involving Dismissal) claim in the Fair Work Commission.
  • If you have been unfairly dismissed or unlawfully terminated within the last 21 days, consider a Unfair dismissal claim (F2) General Protections (Involving Dismissal) claim (F8) in the Fair Work Commission.
  • If you have been dismissed more than 21 days ago but within the last 12 months, (if outside this still happy to talk to you about the time line). Consider a Discrimination and Victimization Complaint in Federal Human Rights Commission or your State Human Rights or Equal Opportunity body.

I have been treated unfairly because I have a genuine mental health condition and have been very anxious and/or stressed due to COVID-19.

social-media
Don’t get your medical or workplace advice from social medial.

This is mental disability discrimination.

‘Disability’ includes all mental illnesses and conditions. Provided that you have a genuine condition, you may be protected by discrimination laws. For example, unfair treatment may be having your sick leave request turned down, or being criticised or treated differently because of your condition.

  •  If you are still employed, consider a General Protections (Not Involving Dismissal) claim in the Fair Work Commission.
  • If you have been dismissed within the last 21 days, consider a General Protections (Involving Dismissal) claim in the Fair Work Commission.
  • You have been dismissed more than 21 days ago but within the last 12 months. Consider a Discrimination Complaint in your State human rights body.

I’ve been treated unfairly because I expressed my political views on COVID-19.

This is political opinion discrimination.

You cannot be treated unfairly for expressing your political views. Provided that you do not perform any activities breaking the law. For example, if you were terminated or treated differently for expressing your opinions about the current government’s approach to COVID-19, you would be protected.

  • You have been dismissed within the last 21 days, consider a General Protections (Involving Dismissal) claim in the Fair work Commission.
  • You have been dismissed more than 21 days ago but within the last 12 months, consider a Discrimination Complaint in your State human rights body.
being-dismissed-by-zoom-while-injured
Being dismissed by zoom while injured

I’ve been treated unfairly because I refused to wear a mask or comply with COVID-19 restrictions.

This is not discrimination. Discrimination does not protect you from activities that would break the law. You are entitled to express your political opinion. Which is protected under discrimination laws, but this does not extend to performing unlawful activities. You may be morally opposed to it, but employers have obligations. Also employers are entitled to run their workplace as they fit within the confines of the law

Conclusion to What Are Your Rights? the Workplace and Dismissals

We are A Whole New Approach P/l. AWNA are not lawyers but Australia’s leading workplace advisors. All Fair work Australia matters, Human Rights, dismissals, workers rights, employment rights. We are all about your rights, have concerns?, questions?, give us a call, we are here to help, certainly stressful times, we understand that. We work in all states, Victoria, NWs, QLD, Tas, SA, NT, WA.

Get free, prompt, honest advice. Call 1800 333 666

Articles What Are Your Rights? the Workplace and Dismissals

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Updated Coronavirus Advice for employees

Updated-Coronavirus-Advice-for- employees

Updated Coronavirus Advice for employees

Advice on COVID-19 is important, this is what you need to know.

Updated Coronavirus Advice for employees, is important information. If an employee is capable of completing their work at home, it is recommended that an employer does the following:

  • Advise staff to take equipment needed to complete their work home with them, such as laptops, phones and computer monitors.
  • Prepare in advance for paper based tasks to be allocated and all paperwork required to be delivered to employee or picked up weekly from office.
  • With a majority of companies utilising cloud based systems and computers as a standard of basic requirements for employees to complete their work, it is now simple to transition to remote working environment. You may find increased production from some employees due to added work/life balance they enjoy avoiding the commute.

If an employer and employee agree to working from home, the employer should:

  • Pay the employee the same wage as usual.
  • Keep actively in touch with the employee.
  • Consider implementing internal chat software such as Slack or Google Chats.
  • Conduct regular team meetings.
  • Actively check on the employees health and wellbeing.

Find out more about:

tug-of-war-over-your-rights-ends-in-dismissal
Careful this doesn’t end up a tug of war over your rights. Confusion abounds and it ends up in a unfair dismissal.

Updated Coronavirus Advice for employees, Choosing not to go to work due to Coronavirus fears

Some employees might feel uncomfortable, stressed or scared about attending work onsite. They may choose to not attend work. With staff that have a higher risk due to conditions such as immune compromised or asthma, this fear could be particularly the case. A higher risk environment are offices and workplaces with copious amounts of people. This does not necessarily mean a high volume of staff but rather a place many people come and go throughout the day.

An employer should take the time to actively and compassionately listen to any concerns staff may have and should take the correct steps to protect everyone in the workplace.

For example, they could offer extra car parking where possible so that people can avoid using public transport, disallow walk-ins and instead operate on a book-in basis. The employer should have a clear Coronavirus plan and ensure all staff are adhering to it.

If an employee still does not want to go to work, they may be able to arrange with their employer to take the time off as holiday or unpaid leave. Depending on the situation the employer does not have to agree to these terms. To learn more about unpaid leave and workplace disagreements you can contact us here at Unfair Dismissals on 1800 333 666.

If an employee refuses to attend work without a valid reason, it could result in disciplinary action by the employer, including dismissal. During these stressful times communication is the key to negotiating a plan of action between staff and employers. You do not want to end up dismissed. Disputes and dismissals relating to Covid-19 can be taken to the Fair work Commission.

Updated-Coronavirus-Advice-for-employees
nobody should be dismissed over health concerns, leans tour rights

What if someone in the workplace has Coronavirus?

If someone is sick in the workplace with symptoms associated with the coronavirus, they should immediately:

  • Notify their employer and go home.
  • Avoid touching anything and anyone.
  • Cover the nose and mouth when they sneeze or cough. It is highly recommended to use a tissue or the crook of the elbow. Tissues must be immediately disposed of.
  • Use a separate bathroom from others, where possible.

An unwell person living alone must self-isolate for 14 days. If they live with others and is the first to have symptoms, they must self-isolate for 14 days. Everyone else in their household must self-isolate for 14 days.

If anyone else in the household starts displaying symptoms, the person with the new symptoms must self-isolate for 7 days. This is regardless of where they are in the 14-day isolation period.

Be aware how our Updated Coronavirus Advice for employees effects full-time and part-time employees who are unable to work. Due to the fact they are sick with coronavirus can take paid sick leave. If an employee needs to look after a family member or a member of their household who is sick with coronavirus. They are entitled to take paid carer’s leave. “An employer cannot make an employee take sick or carer’s leave. However, under these circumstances, “the employee is not entitled to be paid unless they use their paid leave entitlements.” – Fair Work Australia

An employee is required to give their employer reasonable evidence of Coronavirus illness if the employer asks for it. Simply taking a day off and claiming to have Coronavirus may not be sufficient.

You can get more advice or help by either:

Updated-Coronavirus-Advice-for- employees
Nobody should be dismissed due to anxiety and illness fears

I’ve been fired from my job due to Coronavirus fears

If you or someone you know has been unfairly dismissed from work due to the coronavirus there is a good chance it is an unfair dismissal. The dismissed employee is entitled to compensation. To learn more get in touch with the staff at Unfair Dismissals Australia and receive a free consultation on moving forward. There’s nothing to lose. Call 1800 333 666

Full-time and part-time employees are entitled to take paid sick leave or carers leave should they be ill with Coronavirus or be required to care for someone in their household who has the virus. If an employee takes sick leave and provides sufficient evidence of having the virus and an employer fires the employee there is a high chance of unfair dismissal and the employee will be entitled to compensation.

It is encouraged employees and employers to work together to find appropriate solutions that suit the needs of each individual in the workplace. This may include taking different types of leave, working from home, or taking employers and employees taking extra precautions in the workplace to keep it clean and safe.

Updated Coronavirus Advice for employees

“Updated Coronavirus Advice for employees” I hope the article was informative for you. We are A Whole New Approach P/L, we are not lawyers, but the nations leading workplace advisors, any thing to do with the workplace place, that’s us, honest, prompt advise is available to all. All Fair work Commission matters. Unfair dismissals, redundancies, workplace investigations. We work in all states. Vic, NSW, Qld Tas, SA, WA

We are leaders in health related issues and how they apply to the workplace, call us anytime, we are here to help, advice is free, 1800 333 666

  • Department of Health – Use this website to keep up to date with the latest information on the Coronavirus, including requirements and conditions required for isolation along with quarantine periods.
  • Services Australia – This website will keep you up to date with Coronavirus support.

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