Fair Work Commission upholds dismissals of unvaccinated workers and confirms that there is no entitlement to paid personal leave whilst suspended from work due to vaccination status

Mr Aucamp was working in the role of Maintenance Manager at the Association for Christian Senior Citizens Homes Inc (ACSCH) at its retirement village. In October 2021, following announcements from the Victorian Government regarding mandatory COVID-19 vaccination for employees in the aged care sector, ACSCH held an informal discussion with Mr Aucamp regarding his vaccination status and informed him that it may become an inherent requirement of his role should the Victorian Government mandate vaccinations for the industry. Mr Aucamp confirmed his unwillingness to be vaccinated in the future despite any Victorian Government mandate.

Subsequently, the COVID-19 Mandatory Vaccination (Workers) Directions (Directions) were announced in Victoria and commenced on 7 October 2021.

ACSCH formed the view that the Directions were applicable to Mr Aucamp’s employment as he was a worker falling within the relevant definition of a ‘repair and maintenance worker’.

As such, ACSCH informed Mr Aucamp that he was required to be vaccinated by 15 October 2021 or have, at least, a booking to receive a dose of the COVID-19 vaccine by 22 October 2021 in order to continue working onsite.

Mr Aucamp reiterated that he had no intention of receiving the COVID-19 vaccination and ACSCH therefore terminated his employment effective 14 October 2021.

Mr Aucamp lodged an unfair dismissal application in the FWC, claiming that he had not been given enough time to consider whether vaccination was right for him and had hoped “in his heart” that the Victorian Government would not proceed to issue such a direction.

The FWC noted that for ACSCH to have permitted Mr Aucamp to keep working would have constituted an offence under the Public Health and Wellbeing Act 2008 (Vic) rendering ACSCH liable for “a substantial financial penalty”. Further, the FWC noted that ACSCH was not responsible for implementing a government mandate or vaccination directions and that Mr Aucamp’s grievance ultimately lies with the decision of the Victorian Government’s Acting Chief Health Officer.

After considering other relevant matters under the Fair Work Act 2009 (Cth), the FWC found none of them “sufficient” to render the dismissal harsh, unjust or unreasonable and upheld Mr Aucamp’s dismissal.

This case also arose in the context of the residential aged care sector.

Ms Shepheard was employed by Calvary Health Care T/A Little Company of Mary Health Care Limited (Calvary) as a part time care service employee in NSW. Her primary duty was to provide personal care assistance to aged care residents, who were predominantly deemed as ‘high care’ residents.

On 26 August 2021, the NSW Minister for Health and Medical Research issued the Public Health (COVID-19 Aged Care Facilities) Order 2021 (Public Health Order) which required, among other things, that an employee of an operator of an aged care facility not enter the premises of an aged care facility unless the employee had at least one dose of the COVID-19 vaccine from 17 September 2021.

Calvary communicated with its employees regarding the Public Health Order, including in what circumstances employees may be medically exempt from receiving the vaccine.

Ms Shepheard did not provide Calvary with any evidence that she had received a COVID-19 vaccine, nor did she provide evidence to support a medical exemption under the Public Health Order.

Instead, Ms Shepheard wrote to Calvary, raising a number of largely irrelevant concerns and argued, among other things, that public health orders are not ‘legally binding’, citing the Commonwealth Constitution, Article 1 of the Nuremburg Code and other international human rights laws.

Due to Ms Shepheard’s failure to comply with the Public Health Order, Calvary terminated her employment effective 15 September 2021. Following this, Ms Shepheard made an unfair dismissal application in the FWC, challenging her dismissal and also asserting that she was dismissed because she exercised what she considered to be a right to privacy under the Privacy Act 1988 (Cth) in relation to her medical information, and that Calvary unreasonably required her consent to collect her sensitive vaccination or medical information.

The FWC held that if Calvary had permitted Ms Shepheard to enter her workplace on or after 17 September 2021, it would have been in breach of the Public Health Order and its accreditation as an aged care provider may have been at risk.

The FWC held that Calvary had a “sound, defensible and well founded reason to terminate Ms Shepheard’s employment”.

In reaching this decision, the FWC addressed Ms Shepheard’s assertions in respect to privacy of her medical information and stated that even if Calvary had been required by privacy laws to obtain the consent of Ms Shepheard to the collection of sensitive information from her (i.e. her vaccination status) and it had not obtained such consent, the dismissal would not be deemed harsh, unjust or unreasonable.

Due to the Public Health Orders, which were binding on both parties, the FWC held that it is not unfair for an employer to bring an employment relationship to an end when an employee, through no fault of the employer, has no capacity to work for the employer at the time of the dismissal and into the foreseeable future, and the employee is afforded procedural fairness before a decision is made to terminate the employment relationship.

Mr Ross Edwards was employed by Regal Cream Products Pty Ltd T/A Bulla Dairy Foods (Bulla) as a Mixed Plant Operator at Bulla’s Colac site for 17 years.

The COVID-19 Mandatory Vaccination (Workers) Directions (Directions) released in October 2021 applied to Bulla’s operations and to Mr Edward’s employment as he was a ‘manufacturing worker’ as described in the Directions. These Directions required that relevant workers be vaccinated by 15 October 2021 or have, at least, a booking to receive a dose of the COVID-19 vaccine by 22 October 2021 in order to continue working onsite with the Directions.

Bulla provided its employees with considerable information about the Directions. To encourage and support staff to be vaccinated, Bulla offered a cash inventive and offered to arrange and pay for a medical consultation with a doctor if any staff were concerned about the vaccination.

While Mr Edwards had personal health concerns about being vaccinated, he did not obtain a medical exemption that met the requirements under the Directions, and it was later discovered that the doctor who had provided him with  his certificates was no longer permitted to practise.

Bulla suspended Mr Edwards without pay from 15 October 2021 and asked him to provide either evidence that he was vaccinated against COVID-19 or a valid medical exemption by 22 October 2021, failing which his employment may cease.

After being notified of his suspension, Mr Edwards requested to take long service leave to buy time for the vaccine mandate to end and a ‘more appropriate drug’ to become available.

Bulla declined Mr Edwards’ request to take long service leave for operational reasons.

As Mr Edwards did not provide evidence of vaccination and did not have a valid medical exemption by the requested time, his employment was terminated as he was legally unable to perform his duties.

The FWC held that Bulla had a “sound, defensible and well-founded reason” to terminate Mr Edwards’ employment. The FWC stated that to have permitted Mr Edwards to work outside of his ordinary place of residence after 15 October would have constituted an offence and rendered Bulla liable for a substantial financial penalty.

The FWC, in reaching this decision, considered Mr Edwards’ request to take long service leave, and noted that indications from the Victorian Government at the time suggested that vaccination requirements would be in place for a considerable period and that even if Bulla had granted the leave, it is unlikely to have led to a different outcome.

The FWC held that Bulla had a valid reason for the dismissal and it afforded procedural fairness to Mr Edwards prior to terminating his employment.

HR Legal represented Bulla in this matter, and we note the comments of the FWC that “Bulla offered significant assistance and support in circumstances that were very difficult for all involved, and it is difficult to fault their approach”. This reinforces both the legal and practical benefits to adopting an empathetic and procedurally fair approach in carrying out dismissals of this nature, for which Bulla is to be commended.

Mrs Wilkinson was an Associate Nurse Unit Manager of Outpatient Specialist Clinics employed by Eastern Health.

In October 2021, the Chief  Health Officer’s  COVID-19  Mandatory Vaccination  (Specified  Facilities)  Directions  (No  6)  came  into  effect.  The direction required that Eastern Health take all reasonable steps to ensure that, from15 October 2021, a healthcare worker who is unvaccinated (other than an excepted person) does not enter, or remain on, the premises of a healthcare facility for the purposes of work, unless they were vaccinated against COVID-19 or had a booking to receive the vaccine by 29 October 2021.

On 15 October 2021, Mrs Wilkinson provided Eastern Health with a medical certificate certifying that she was unfit for work for the period 15 October 2021 to 12 November 2021.

On 19 October 2021, Mrs Wilkinson was informed by Eastern Health that as she did not provide the evidence of vaccination or a vaccination booking by 15 October 2021, she would be suspended and consequently, she was not entitled to paid personal leave. Later that day Mrs Wilkinson received a letter by email from Eastern Health requiring her to show cause why her employment should not be terminated.

Mrs Wilkinson was also expressly informed that if she did not provide evidence of her vaccination status by 28 October 2021, Eastern Health would consider that she was unable to perform the inherent requirements of her position and she would no longer be paid. On 21 October 2021, Mrs Wilkinson provided Eastern Health with confirmation that she had made a booking to receive a COVID-19 vaccination for 27 October 2021 and as such Eastern Health confirmed that she was no longer suspended, and she would be paid her accrued personal leave until that date.  Ms Wilkinson subsequently did not attend her vaccination appointment, did not provide evidence that she had received a vaccination and instead provided Eastern Health with medical certificates for the period until 10 December 2021. Eastern Health refused to pay Mrs Wilkinson her accrued personal leave after 28 October 2021, and Mrs Wilkinson subsequently lodged a dispute with the FWC under the terms of Eastern Health’s enterprise agreement seeking payment of her personal leave.

The FWC found that if an employer cannot lawfully require an employee to work in a period because it cannot permit the employee to work because of an operative direction or order, the employee has no ‘ordinary hours’ in that period, and therefore is not entitled to paid personal leave. Mrs Wilkinson’s dispute was therefore dismissed.