Last year’s introduction of vaccine mandates have created major complexities in the employment landscape. It is a common employment condition (whether expressly detailed in a contract or implied), that employees are required to undertake “lawful and reasonable directions” as instructed by their employer. By failing to do so may render a dismissal reasonable.
So how does this apply to the vaccine mandates? Based on current rulings made by the Fair Work Commission (FWC) dismissals based on COVID-19 vaccine mandates have been upheld as lawful.
Additional considerations
However, an employer does not have the gung-ho ability to conduct terminations without any regard to process. There are a number of considerations both the employer and the employee need to be aware of which may render a dismissal ‘unfair, unjust and unreasonable.’ An example of this occurred in the recent case of BHP where the FWC found that BHP’s implementation of thevaccine mandate was not a reasonable direction due to its lack of consultation with its workforce.
Please note that below considerations are not compulsory, but can be taken into account in an unfair dismissal claim.
1. Is the employee able to successfully conduct their role from home?
• The employer should provide a business case as to performance of an employee’s role while working from home. If they do not, an employee can request a response as towhy they cannot continue their role from home.
2. Can the employee continue to conduct their work from home (at a full-time or reduced capacity)?
• The mandates state that “an employee must not leave home to attend the work site if they are unvaccinated or do not have a valid exemption.” This does not mean that an employee cannot continue to conduct their role from home (even at a reduced capacity).
• Whether the inherent requirements of the role requires the employee to be in the workplace is an important consideration.
• If there is an opportunity to work from home this should be presented to the employee and if not, the employee can request a formal response to this question in writing.
3. Is there any redeployment opportunities for the employee?
• This involves determining whether there is an opportunity to work from home in differentrole that can be offered to the employee.
• If there is another role which affords the ability to work from home this should be presented to the employee. The employee can also request a formal response to this question in writing.
4. Are there any other additional factors which may be prompting the dismissal?
• These can be considered ‘protected attributes’ such as religious beliefs, age, gender and sexual orientation.
• If there is any evidence to suggest an employer is disguising a termination then an unfair dismissal claim (involving general protections) can be made.
• Note that there is no exemption for people who are not vaccinated due to religious beliefs or otherwise.
Was there ‘procedural fairness’?
Procedural fairness relates to how an employee isprovided an opportunity to respond to an employer’s direction prior to any action being taken (like termination). The below points can be taken into account when determining if a process was procedurally fair.
1. Was the employee provided a written direction?
• This should be done in a formal letter or email identifying the law which the directionrelies upon and the timeframe for a response.
2. Was the employee provided enough time to respond to that direction?
• As a general consideration, anything less than 24 (business) hours may not constitute an appropriate timeframe to request a response.
3. Was a formal meeting held to discuss the direction?
• A formal meeting allows both the employee and the employer to discuss the matter in detail. It also allows the employer to answer any questions the employee may have including the aforementioned points regarding working from home and suitable alternative roles.
4. Was the employee offered a support person in attendance of a formal meeting?
• Allowing a support person attend is not a legal right, however it is highly recommended to act as a witness and support in difficult conversations.
• An employee can directly ask to have a support person in attendance and does not need to wait for an employer to offer one.
• It is mostly considered unreasonable for an employer to refuse a support person.
Lodging an unfair dismissal claim
Recent FWC rulings have indicated that lodging a claim on the basis that the vaccination mandates are unlawful does not constitute an unfair termination.
However, a claim based on the lack of procedural fairness and the aforementioned alternative considerations may hold more weight towards a successful unfair dismissal claim.
An employee can lodge an unfair dismissal claim with the FWC within 21 days from the date the termination took effect. For more information on how to lodge a claim, please click here.
Disclaimer
The information contained in this article is of a general nature and does not substitute professional legal advice. You should obtain legal advice from a lawyer before acting on any of the following information. This article is reflective of the laws for Victorian and national system employees.