Customer service employee dismissed for refusing vax, despite working from home
The Fair Work Commission (FWC) dealt with an unfair dismissal claim from an employee who questioned his termination over failure to prove his vaccination even though he was only working from home.
The case seeks to reconcile a public health direction regarding mandatory COVID-19 vaccination and the employer’s needs where the employee is not required to physically report to the workplace for a specific period. Is an employee still required to comply with the direction?
The employee worked in customer service support at an affordable housing organization. Around March 2020, the employer directed him and some of his colleagues to work from home due to the COVID-19 lockdown in Victoria.
The state government then issued public health direction requiring certain workers to provide evidence about their COVID-19 vaccination status by October 2021 to work outside their homes. The employer’s executive leadership team also approved a mandatory COVID-19 vaccination policy and uploaded it to their intranet.
Later on, the employer told the employee that he would not be able to work until he provided proof of his vaccination status. A few days later, in a meeting, they discussed the matter and it became clear that the employee did not intend to be vaccinated.
In explaining the vaccine mandate, one of the employer’s witnesses said in-person meetings with team members were to be conducted at regular intervals.
“Accordingly, notwithstanding the flexibility afforded to the [worker]he and all other… employees are expected to maintain a readiness, willingness and ability to attend [our] physical locations as and when required.”
The employer consequently sent a show-cause letter, and the employee responded that he would not provide his vaccination status. He was then terminated from his employment.
A recent FWC decision involved a retail worker who said the employer didn’t effectively consult with staff on its vaccine mandate.
In its decision, the FWC noted that prior decisions supported the argument that the failure of an employee to meet the requirements of a public health order would be a valid reason for dismissal.
It also agreed that the employer was under no legal compulsion to make adjustments to the inherent requirements of the worker’s role as he did not claim a medical exemption or identify any impediment which might have warranted such a special accommodation.
“Whilst the [employer] could in theory have permitted the [employee] to work exclusively remotely, this would have been inconsistent with its organisational and operational needs particularly with respect to training and regular team meetings.”
“By reason of the inherent requirement that the [worker] maintain a constant readiness, willingness and ability to attend for work outside his ordinary place of residence, the Public Health Orders provided a lawful and reasonable basis for the direction.”
Recently, the FWC dismissed a health worker’s claim that she was unfairly dismissed over non-compliance with a workplace vaccination mandate.
However, the FWC emphasised that the public health direction, the Victorian Government Covid-19 Mandatory Vaccinations (Workers) Directions (No. 5), applied to an employer where “a worker is, or may be, scheduled to work outside the worker’s ordinary place of residence on or after the relevant date.”
According to records, the employer did not require or schedule anyone in the employee’s team to attend work in person until a few months after he was terminated.
“Thus, between the employee’s termination and the employer’s required date to attend work in person, he remained ready, willing and able to perform the inherent requirements of the role,” the FWC said.
The FWC further ruled that the dismissal was “premature” since there was still no valid reason for dismissal in the month of his termination. It said the employer could have allowed the employee to continue his employment until he was required to report to the workplace.
As for the remedies, the FWC found reinstatement was inappropriate because the employee remained unvaccinated. The FWC also ruled that he incurred no economic loss since he found another job following his dismissal.
Ultimately, the FWC said that dismissal was unfair, but no other remedy was appropriate.
