Whopping compensation for sacked jab abstainer who didn’t need to be vaccinated

The Fair Work Commission (FWC) has awarded a Western Australian employee the equivalent of six months’ wages compensation after finding her dismissal on the basis of her vaccination status was unfair, with her employer rapidly conceding during formal proceedings that it incorrectly deemed a State Government issued COVID-19 vaccination mandate applied to her employment.

The employee had just over one year of service as a store person at the Perth warehouse of her mining equipment manufacturer employer when her employment was terminated on 31 January 2022 for refusing to comply with a public health direction requiring resource workers to be triple-vaccinated against COVID-19.

During proceedings before the Commission, the employer confirmed that the store person was never required to attend a mining site to perform her role, meaning the public health direction “did not prevent the [employee] from attending work at her usual place of work whilst unvaccinated against COVID-19”. The employer further conceded “that on an objective analysis of the relevant facts, there was no valid reason for the [employee’s] dismissal and as such her dismissal was harsh, unjust or unreasonable”. With there being no valid reason for the employee’s termination, Deputy President Beaumont was left to conclude her dismissal was unfair, notwithstanding the employer had otherwise afforded the store person fair process before terminating her employment.

The store person remained out of work some six months after her employment was terminated but Deputy President Beaumont determined reinstatement was inappropriate, accepting that the employee’s trust had been damaged. As the store person had argued strongly against reinstatement, the Deputy President observed that, “returning the [employee] to an employment relationship absent her agreement… would appear highly unlikely that a positive and productive relationship would ensue”.

In turning to consider compensation, Deputy President Beaumont assessed the store person would likely have remained in employment for a further period of one year, had she not been dismissed in January. Despite the employee’s relatively short period of service, the Deputy President’s calculations of compensation commenced at nearly $70,000, which was then discounted by 50% owing to the store person’s “unpersuasive” reasons for taking absolutely no steps – “none” – to mitigate her loss in the six months since her termination. The employee was ultimately awarded the equivalent of six months wages as compensation (the maximum amount permissible within the jurisdiction) totalling $33,297.47 (gross).

Chiu v Liebherr-Australia Pty Ltd [2022] FWC 1842 (15 July 2022)