Employers have long-awaited insight from the Fair Work Commission on when a direction to be vaccinated may be held to be lawful and reasonable, as well as further guidance on consultation processes. The FWC has upheld the dismissal of an employee who refused to comply with their employer’s direction to be vaccinated against COVID-19, unless he had a medical contraindication.
The employer provided support services to people at imminent risk of becoming homeless or experiencing homelessness, funded by the NSW Department of Communities and Justice (DCJ).
In September 2021, the DCJ informed the employer that it was implementing a policy under which the employer had to undertake a risk assessment in respect of COVID-19, including whether vaccination was reasonably practicable in the circumstances to control the risk of COVID-19.
In accordance with the DCJ’s policy, the employer undertook a risk assessment and invited employees to be part of the process, including having a “live” risk assessment, requesting feedback from employees on the contents of the risk assessment and conducting an employee survey.
An outcome of the risk assessment was that vaccination against COVID-19 was a reasonable requirement of employees. Subsequently, the employer introduced a requirement for its employees to be vaccinated against COVID-19, unless they had a medical contraindication (the Vaccination Requirement).
The employee refused to comply with the Vaccination Requirement.
The employee was subsequently dismissed for, amongst other things, failing to comply with a lawful and reasonable direction to comply with the Vaccination Requirement and lodged an Unfair Dismissal application.
The FWC found that the employer had a valid reason for the termination and afforded procedural fairness to the employee.
In respect of the Vaccination Requirement, the FWC held that the Vaccination Requirement was lawful and reasonable based on the following:
o there is nothing unlawful or illegal about becoming vaccinated;
o employees were required to interact face-to-face with vulnerable persons;
o the employer could not confirm the health status of the persons to whom it provides services to;
o COVID-19 vaccines reduce the risk of becoming seriously ill or dying from COVID-19;
o the Vaccination Requirement was put in place after the employer was required by the DCJ to undertake a risk assessment, including whether vaccination was a reasonably practicable step;
o the number of cases in the community in late 2021.
The FWC also said that the Vaccination Requirement had an “obvious purpose” and a “logical and understandable basis”.
The FWC was also satisfied that the employer had complied with its consultation obligations under the Work Health and Safety Act 2011 (NSW) and applicable enterprise agreement.
The case confirms that the FWC is prepared to uphold employer-imposed vaccination requirements, when the requirements are lawful and reasonable. The case also provides much needed guidance on when the FWC may deem a COVID-19 vaccination requirement to be lawful and reasonable.
However, the decision also highlights that the FWC and the Courts will assess each matter on a case-by-case basis, meaning that employers should continue to tread cautiously where seeking to impose vaccination requirements on employers, and be attune to the consultation obligations which apply.