Not that long ago, a challenge to termination of employment for not complying with covid vaccination requirements was generally doomed to failure. Leading industrial law barrister Ian Neil SC summed it up in 2021 when he said that a direction for employees to be vaccinated will “always be lawful” if a job inherently requires them “physically to be in positions or circumstances in which they could, if infected with COVID-19, transmit the virus to someone else”. However, with the widespread repeal of government vaccination requirements in more recent times, we are starting to see a greater consideration of harshness in individual unfair dismissal cases in the Fair Work Commission (FWC).
This is well illustrated by the recent unfair dismissal case of Janet Margaret Stace v Complete Office Supplies/Complete Office Staffing Pty Ltd [2023 FWC 2758 (23 October 2023). Ms Stace was stood down from her job as an account manager on 28 February 2022 when she decided not to receive a Covid vaccination. On 16 August 2022, the employer wrote to Ms Stace advising that it accepted her repudiation of her contract of employment on the basis she could not fulfil the inherent requirements of her job. The FWC swiftly dealt with the employer’s jurisdictional objection that the termination had not been at the employer’s initiative and held that Ms Stace had not abandoned or resigned her employment.
Having failed on its jurisdictional objection, the employer argued it had a valid reason to terminate Ms Stace’s employment being her failure to comply with a lawful and reasonable direction to be vaccinated and her inability to perform the inherent requirements of her role because she was not able to enter the workplace or customer work sites. In finding there was no valid reason for dismissal, the FWC noted:
a. State government mandates had been significantly relaxed just prior to termination;
b. There was minimal evidence of vulnerable employees in the workplace and Ms Stace’s duties within the office formed a minority of her tasks;
c. The employer’s vaccination policy was reasonable in circumstances where its clients maintained their own restrictions and the employer’s evidence was accepted that many clients, at some point , had vaccination based access restrictions;
d. BUT, there was a lack of evidence about client requirements at the time of termination;
e. A month had elapsed between the delivery of a final ultimatum to the employee and the actual date of termination in August 2022;
f. This meant more time had passed since the relaxation of government restrictions and clients of the employer would have increasingly started to relax their own policies;
g. There was no evidence that the employer undertook any checks to ensure the information it relied on to terminate Ms Stace’s employment was up to date;
h. the existence of a couple of clients in the aged care industry was not a significant factor.
The FWC also took into account Ms Stace’s age, experience and the nature of the industry, the way in which the employer framed the termination as a repudiation and the apparent lack of due diligence prior to implementing the termination. The FWC considered the employer’s conduct in not taking greater care or time and rushing the decision to terminate to be questionable at a time when the country was adjusting to increasingly relaxed restrictions. The FWC noted that the conclusion would likely have been different had the employee been terminated at an earlier time when she was in fact unable to access the majority of client work sites.
There are several lessons from the case:
a. It is the facts in existence at the point of termination that are important, not some earlier date;
b. Detailed evidence is necessary to support an argument that the employee cannot perform the inherent requirements of their job without being vaccinated;
c. The passage of time between the relaxation of restrictions and the decision to terminate makes that task much harder;
d. The standard tests apply – a reason for termination must be well-founded, sound and defensible to be valid;
e. A range of reasons can be relevant to a finding that whilst a reason may be valid, a dismissal may still be harsh, unjust or unreasonable.
No doubt other cases will emerge. Whether a decision is fair to terminate employment for past failure to comply with what once was a reasonable and lawful direction to be vaccinated and where that direction no longer exists at the date of termination is yet to be tested. Given the views of the FWC, it appears likely that such a termination would be unfair, particularly where the non compliance relied on was a decision of conscience and not mere wilful disobedience.
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