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  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.
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”.
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
Mandatory vaccinations for employees, click here
Mandatory jab, SPC refuses to back down, click here
Vaccination policies in the workplace, click here
Can I be dismissed for not having the flu shot, click here
One of the nations leading workplace advisors, representatives and commentators. Gary has represented some 12,000 clients over some 20 plus years, published some 300 plus articles. He is passionate about employees rights and the test of fairness in the workplace. Have a problem, concern, wants to contribute to the debate or research, call him directly.