Unvaxxed Dairy Worker Loses Dismissal Claim

A unvaccinated plant operator employed at a dairy factory for 17 years has lost his unfair dismissal claim in the Fair Work Commission (FWC) despite the employer acknowledging he was a good employee who was well regarded.

Background

The applicant in the matter was employed by Regal Cream Products Pty Ltd, which trades as Bulla Dairy Foods.  On 7 October 2021, the Victorian  Chief  Health  Officer  issued  the  COVID-19  Mandatory Vaccination  (Workers)  Directions.  The effect of the Directions was that, unless a valid medical exemption applied, manufacturing workers had to receive a first dose of the COVID-19 vaccine by 15 October 2021 or have a booking to do so, and be fully vaccinated by 26 November 2021.

The FWC heard that the applicant had major health concerns about being vaccinated.  He produced a medical certificate from a doctor but Bulla determined the medical certificate did not meet the medical exemption requirements in the Directions.  Bulla offered to organise and pay for an appointment with an independent medical specialist to provide advice to the applicant regarding exemptions, but the offer was not taken up.  With the deadline in the Directions looming, Bulla advised the applicant that he was suspended without pay from 15 October.  He was asked to provide a valid medication exemption by 22 October.  No further medical exemption information was provided by the applicant to Bulla.  The applicant requested to take long service leave to give him more time for an appropriate drug to become available or for the mandate to end.  Bulla refused to allow the long service leave on the basis the applicant was suspended without pay and therefore not entitled to take long service leave.  Bulla also said it was unable to accommodate requests for leave as it was short staffed. 

After informing the applicant on 22 October 2021 it would make an assessment regarding his ongoing employment if he did not provide evidence of a first dose of the vaccine or a valid medical exemption, the applicant confirmed that he did not intend to be vaccinated.  Bulla determined the applicant could not legally perform any work on site and there were no alternative suitable duties for him to perform.  As such, the company decided to terminate the applicant’s employment.  Bulla told the FWC there were more than a dozen employees whose employment was terminated along with the applicant and that a consistent approach had been followed for employees who were unvaccinated and did not have a valid medical exemption.

FWC outcome

Commissioner O’Neill of the FWC determined that Bulla had a valid reason for the dismissal and afforded procedural fairness to the applicant.  The Commissioner said the applicant was provided with “ample opportunity” to provide a valid medical exemption and did not do so.  The applicant was given “extensive support and assistance” by Bulla to assist him in obtaining medical assistance given his real concerns about vaccination.  The Commissioner said Bulla acted with “empathy and care” and was “respectful” of the applicant’s concerns.  But, the applicant was ultimately unable to meet the inherent requirements of his role and Bulla had no option but to comply with the Directions.

In dismissing the unfair dismissal claim, the Commissioner concluded:

I  appreciate  that  this  is  disappointing  for  [the applicant] after  17  years  at  a  job  that  he loved,  but  I  am  satisfied  that  his  dismissal  by  Bulla  was  not  unfair.

Edwards v Regal Cream Products Pty Ltd [2022] FWC 257