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.
What does the Government and The 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 and they must have received at least one dose by 30 September 2021, unless an exemption applies.
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 as 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.
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 and 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.
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 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 and 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.
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 and 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 but in the same way, your employer has the choice to terminate or refuse to hire, unvaccinated employees.
It is increasingly evident that proof of vaccination is becoming a condition or requirement for employment, even in the absence of mandates.
A Whole New Approach are not lawyers, what we are is the nations leading workplace advisors, we are happy to give you advice on unfair dismissals, general protections and any of your personal circumstances in these difficult times, advice is free. Call today on 1800 333 666
 DDA s.21(A).