No remedy for only unvaxxed worker to successfully argue unfair dismissal

Since Christmas 2021, the Fair Work Commission has issued dozens of decisions determining the merits of unfair dismissal applications pursued by employees who have been terminated for non-compliance with COVID-19 vaccination mandates in their workplace. To date, only one applicant has had success convincing the Commission his dismissal was unfair, but he was unable to secure either reinstatement or compensation as remedy, achieving an outcome described as a “pyrrhic victory”.

The Customer Service Support (CSS) worker had approximately 2.5 years’ service with his Victorian aged care employer when his employment was terminated on 10 November 2021 for failure to comply with a public health order mandating vaccination against COVID-19. Whilst Commissioner Johns confirmed there are now “ample decisions of the Commission that support the proposition that the failure of an employee to meet the requirements of a public health order support a valid reason for dismissal”, he noted that did not reflect the “entirety of the circumstances in the present matter”.

Importantly, the CSS worker commenced employment in 2019 at the employer’s Bundoora office but had been directed to work from home (WFH) in March 2020 at the start of the COVID-19 pandemic. The WFH arrangement had continued thereafter and remained in effect as at the date of termination. Although conceding he would have dismissed the CSS worker’s unfair dismissal application had he been required to report back to the office on or around 11 November 2021, Commissioner Johns assessed that had not been the case. Instead, all CSS employees continued in WFH arrangements for the remainder of 2021, with attendance on-site not required of any CSS staff member until 24 February 2022. Commissioner Johns concluded, “For three months and 14 days after the employment of the [CSS worker] was terminated he could have continued to perform his work at home just like every other CSS employee”.

Commissioner Johns was unable to find that the employer had a valid reason for dismissal as at 10 November 2021, because the CSS worker – at least at that time, and until 24 February 2022 – “remained ready, willing and able to perform the inherent requirements of his job”. The Commissioner confirmed the employer held “managerial prerogative” to require all CSS employees to return to the office, but added that, “until such time as they actually required in person attendance, nothing prevented the [CSS worker] from performing the job that, for the better part of two years, he had been performing from home in any case”.

Although finding that the employer’s process prior to termination had been “procedurally fair”, with Commissioner Johns remarking, “There is nothing more that [the employer] could have done from a procedural fairness perspective”, the Commissioner determined the dismissal of the CSS worker to be unfair, by virtue of there not being a valid reason for termination as at 10 November 2021.

In turning to consider remedy, Commissioner Johns swiftly assessed that reinstatement was inappropriate as the CSS worker remained unvaccinated and was therefore unable to perform the inherent requirements of his (former) role, which returned to office-based work as of 24 February 2022 and was still subject to a public health direction requiring vaccination against COVID-19. Owing to the “unfairness in the premature dismissal”, Commissioner Johns was satisfied that an order for compensation may have been appropriate. However, in the 14-week period the CSS worker could have remained employed beyond 10 November 2021, he had earned over $11,300, which meant he was “$1,351.25 better off as a result of the dismissal”. As he had suffered no economic loss as a result of being dismissed prematurely, Commissioner Johns determined no compensation was payable. The employee, “has had a pyrrhic victory”, he observed.

Marriott v Baptcare Limited [2022] FWC 300 (28 April 2022)

Sacked double-vaxxed airport employee inexplicably failed to verify vaccination status

Earlier this month, the FWC upheld the dismissal of a fully vaccinated employee working at the Sydney International Airport precinct because she “quite extraordinarily” failed to provide proof of her vaccination status to her employer, despite having repeated opportunities to do so over a 4.5-month period.

The Passenger Services Delivery Agent received her first vaccine dose 49 days before dismissal, and her second vaccine dose 24 days before dismissal, yet “took no steps to ensure the [employer] was advised of her vaccination status” … “despite numerous communications from the [employer] advising of the need for such proof”. Deputy President Cross found the employer had a valid reason for dismissal, in that the employee “failed to comply with the [employer’s] lawful and reasonable direction to comply with the Proof of Vaccination Requirement”, observing that the employee’s “conduct in not promptly advising the [employer] of her vaccination status belies any reasonable explanation”.

In upholding the dismissal and dismissing the unfair dismissal application, Deputy President Cross noted the employer had a procedurally fair process and “took numerous comprehensive steps to ensure the [employee] was aware of the Vaccination Requirements, and the need to advise of compliance with that requirement”. The employee “did almost nothing to advise of her compliance with the Vaccination Requirements, and the [employer] reasonably thought until at least the second day of the hearing that the [employee] was unvaccinated”, he concluded.

Gharib v Dnata Airport Services Pty Ltd [2022] FWC 1015 (5 May 2022)

WFH arguments repeatedly fall flat

Numerous other applicants aggrieved about their employment being terminated as a result of their vaccination status have sought to argue the merits of continuing on WFH arrangements, but the FWC has generally been unsympathetic to such claims. Even in Victoria – which has been subject to strict stay-at-home orders for extended periods since early-2020 and where WFH arrangements became the norm for many roles – the Commission has endorsed an employer’s ability to determine if/when in-person work at a designated workplace is the preferred option for service delivery.

Where an ongoing WFH arrangement was implemented in response to the COVID-19 pandemic, the Commission, for the most part, acknowledged an employer’s right to conclude such arrangements, recognising that government-enforced lockdowns represented an “exceptional circumstance”, and it was “perfectly reasonable” for an employer to expect an employee to return to the workplace to perform the full range of their core duties, not some modified role or reduced hours, once restrictions had lifted (Pope v Bacchus Marsh Realty Pty Ltd [2022] FWC 619).

Most recently, in Elege v Barwon Health [2022] FWC 1082, when upholding the dismissal of an unvaccinated Maintenance Planner, Deputy President Gostencnik expressly observed, “As Barwon Health told [the employee] at the time, work from home arrangements would not be allowed as a shield for employees against becoming vaccinated. Given that Barwon Health is a provider of health services, this position was wholly reasonable”, the Deputy President stated.

See also (e.g.) O’Toole v Australian Community Support Organisation Ltd [2022] FWC 477; Roy-Chowdhury v Ivanhoe Girls’ Grammar School [2022] FWC 849; and, Spelman v Australian Laboratory Services Pty Ltd T/A ALS [2022] FWC 952.