Worker fired for arguing vax mandate 'did not apply to her employment'

The Fair Work Commission (FWC) recently dealt with a worker’s unfair dismissal claim after she argued that a company mandate did not apply to her and her job, specifically its policy to get vaccinated against COVID-19.

The employer provides secure, quality, and long-term housing support to Aboriginal people in the Perth metropolitan area and also provides an outreach service to homeless Aboriginal people. It also provides community care services.

The worker started employment on 1 June 2018 on a full-time basis as a tenancy and property management coordinator.

Vaccination mandate introduced

The employer argued that the worker had to comply with the community care services worker directions issued by the West Australian State Government. The mandate included vaccination requirements and deadlines for workers within the care services industry.

The worker argued that the mandate “did not apply to her employment,” so she did not comply with the vaccination requirements or deadlines in the said mandate.

On 27 January 2022, the employer terminated her employment. The employer said that, for the worker to meet the inherent requirements of her role, she was required to attend the work site in person.

In compliance with the mandate, effective from 1 December 2021 and 1 January 2022, the worker needed to comply with the vaccination requirements in the mandate to be able to access the worksite.

The employer argued that because the worker could not comply with the requirements in the mandate, she could not access the worksite, and, therefore, it had a valid reason to terminate her employment.

On the other hand, the worker said she “should have allowed her to perform her duties from home on an on-going basis.”

She said that during the lockdowns, she had performed her duties from home. The employer argued against her claim and said this option was no longer a “viable option for the business to approve,” saying that it was “not reasonable for the worker to be allowed to work from home for a prolonged period with no definite end in sight.”

It also said the worker’s key duties required her attendance in the office. The employer said that it gave the worker the option to take up a one-day-per-week role from home, however, the worker was “not interested in this position.”

Job duties considered by FWC

According to the FWC’s decision, the worker’s role required her to provide tenancy support and housing to Aboriginal people who are homeless or at risk of homelessness.

“In completing her duties, the worker had to physically visit the properties managed by the employer to conduct inspections, provide tenancy support to Aboriginal people, and attend stakeholder meetings with various members of the public,” the FWC found.

The commission said the employer’s operations, office premises, along with the worker’s role, fell within the scope of the mandate. It also said the employer gave fair and reasonable consideration to the worker’s request to work from home.

“It was a fair and reasonable decision to deny this request and that the employer’s refusal does not make the decision to terminate the employment harsh,” the decision said.

The commission said that although the worker was “a high-performing and well-respected member of the employer’s business,” the latter had a “legal requirement to ensure it complied with the government’s mandate.

“As a result, this left it with no alternative but to terminate her employment,” it said.

Thus, the FWC ruled that there was no unfair dismissal.