Still no success for vax abstainers as FWC decisions start to flow

Months earlier than expected, the Fair Work Commission (FWC) has issued several decisions addressing dismissal applications lodged by unvaccinated employees, terminated for being non-compliant with a COVID-19 vaccination mandate applicable to their work. The dismissals have been endorsed by the FWC in each instance, while many more unvaccinated employees who lodged their dismissal applications out of time have failed to win the right to pursue their claims.

In what was likely the very first FWC decision to consider the issue, in the days before Christmas 2021, Deputy President Clancy upheld the dismissal of the Maintenance Manager of a nursing home after he refused to be vaccinated against COVID-19 in compliance with a Victorian public health direction that applied to his employment from mid-October.

In concluding the vaccination mandate provided a valid reason for dismissal and that there were no other matters to consider that would have rendered the termination unfair, the Deputy President noted that the Maintenance Manager’s true “grievance” lay “with the decision of the Victorian Government’s Acting Chief Health Officer” (to impose the vaccination mandate).

Deputy President Clancy observed:

“Both parties were conscious of the predicament the other found themselves in as a result of the Vaccination Directions and I consider their various exchanges were respectful and without rancour. The [employer] was aware of [the Maintenance Manager’s] position regarding vaccination and acknowledged the impact the Vaccination Directions would have on him. [The Maintenance Manager] regards the Vaccination Directions as illegal and discriminatory, but he acknowledged they imposed obligations on the [employer].”

As the Maintenance Manager’s vaccination status had not altered since his termination was effected on 14 October 2021, and the vaccination mandate was still in force, Deputy President Clancy could not find that the dismissal was harsh, unjust or unreasonable.

Although the Maintenance Manager was further aggrieved by the fact he was not paid five weeks’ wages in lieu of notice on termination (having only been paid wages to his last day of employment, plus applicable leave entitlements), he dismissed a query from the Deputy President during the determinative conference as to whether an offer from the employer to pay this amount would have been of interest.

Floors Aucamp v Association for Christian Senior Citizens Homes Inc. [2021] FWC 6669 (22 December 2021)

Also prior to Christmas, Deputy President Clancy had reason to question the validity of a vaccination certificate supplied by a Victorian worker claiming to have been unlawfully stood down.

The Deputy President concluded the individual had discontinued his pursuit of the matter when he reacted to questioning during a teleconference by saying, “F*** this, I’m not wasting any more time with you corrupt idiots” and hanging up. Deputy President Clancy expressed the view to the parties that the vaccine certificate “may be a fraud” and invited “the relevant public authorities to investigate further” before closing the Commission’s file.

Brownbill v O&M Pty Ltd [2021] FWC 6635 (20 December 2021)

Further to Deputy President Clancy’s pre-Christmas decision, Deputy President Saunders and Commissioner O’Neill of the FWC have also issued decisions upholding the dismissal of unvaccinated workers to begin 2022.

In January, Deputy President Saunders endorsed the termination of an unvaccinated care assistant by a residential aged care facility in Newcastle (see our related article) while in recent weeks, Commissioner O’Neill upheld Bulla Dairy Food’s dismissal of a long-serving employee who had failed to be vaccinated in accordance with the applicable Victorian public health direction. Commissioner O’Neill found the dismissal to be fair, notwithstanding the employee (who had achieved 17 years’ service) had requested to take a period of long service leave before further decisions were made and, was otherwise acknowledged to be “a good employee, who performed his work well, and was highly regarded” (see our related article).

Out of time claims also out of luck

Many more dismissal applications have been lodged by individuals terminated because of their vaccination status since late-2021 but, in multiple cases, the applications have been lodged outside of the 21-day limit for filing with only a rare few being granted an extension to pursue their claims.

Over a dozen late applications have been dismissed by the FWC in recent weeks, and in numerous instances the relevant Commission member labelled the merits of the claim to be either “weak”, “not strong” or “limited” – e.g. Baker v Ian Turner [2021] FWC 6594; McGuire v St John of God Hospital [2022] FWC 26; Rosso v Teddy Bear Cottage Early Childhood Services Pty Ltd [2022] FWC 189; Murray v Ambulance Victoria [2022] FWC 215; McIntosh v Barwon Health [2022] FWC 227; and Massey v Centrecare [2022] FWC 250. It should be noted that merits are only considered broadly when evaluating whether to permit an extension of time.

Whilst the position of various members of the Commission has generally been to conclude that dismissal applications of unvaccinated individuals have little prospect of success, in Fitzpatrick v Chubb Fire and Security Pty Ltd [2022] FWC 121, Commissioner Johns pondered whether a Victorian employee should have been afforded a period of unpaid leave until he could receive the Novavax vaccine, which was his preference, rather than having been dismissed in November 2021. Elsewhere, in Fried v Travel Management Services Pty Ltd [2022] FWC 261, Commissioner Lee commented that it was “arguable” that the termination of an unvaccinated travel consultant in Victoria, actioned whilst she was submitting medical certificates certifying her unable to work, “was procedurally unfair”, notwithstanding that the Commissioner acknowledged it was “more than likely to be found that there would be a valid reason for the dismissal, because the [travel consultant] was unable to perform the inherent requirements of the role”. Although in both cases the Commissioners regarded the claims not to be entirely without merit, neither employee was granted an extension of time to pursue their unfair dismissal application.

Extensions of time have, thus far, only been granted to a rare few Victorian applicants, including an ambulance officer who argues she should have been permitted to take her long service leave until she could receive the Novavax vaccine (Daley v Ambulance Victoria [2022] FWC 122) and, a support worker who was dealing with the sudden, chronic illness and subsequent passing of her husband at the time of her dismissal (Drake v Melba Support Services [2022] FWC 104). Both individuals will prosecute their claims of unfair dismissal at a later date.

No dismissal of unvaxxed casuals not offered work

A further two casual employees have failed to convince the FWC they should be entitled to contest the termination of their employment, with Deputy President Lake and Commissioner Wilson finding that the nurse from Queensland (Callender v MCI Southport Properties Pty Ltd T/A Southport Day Hospital & Cosmetic Evolution [2022] FWC 164) and the Victorian cabinetmaker (Lord v Amywood Pty Ltd trading as Central Kitchens [2022] FWC 243) were not dismissed within the meaning of the Fair Work Act 2009.

In both instances the casual employees were informed that they would not be able to be offered shifts while they remained unvaccinated, and a vaccination mandate applied to their work. Their respective employers confirmed they were willing, and eager, to resume offering work again in future, either when their vaccination status changed or the vaccination mandates were no longer in force; sentiments Deputy President Lake and Commissioner Wilson accepted as genuine.

Finding the employers had exercised their right not to offer work at the present time – just as the casual employees had withdrawn their availability for work on occasion – and noting neither employee had resigned their employment, it was determined the employment relationship remained in effect, rendering the casual employees ineligible to pursue an unfair dismissal application.

Coincidentally, when refusing an extension of time for a belatedly lodged dismissal application from a casual employee in South Australia (Scanlan v Aged Care and Housing Group Inc [2022] FWC 174), Deputy President Anderson observed that “there may be some force in the employer’s claim of no dismissal” owing to the fact the employee had previously been advised she could not be rostered or offered further shifts until evidence of her vaccination status was supplied.

Also, in Potapova v Alfred Health [2022] FWC 225, Deputy President Gostencnik, openly queried why the employment of an unvaccinated casual interpreter, who traditionally worked irregular hours, had to be terminated in November 2021, when her employer could have continued “to not provide [the interpreter] with shifts until such a time as [she] could provide the required evidence or the [public health direction] ceased to apply”. Despite concluding the employee’s claim was “not without merit” in this respect, the Deputy President declined to grant the interpreter an extension of time to pursue her application.