Worker raises 'constitutional questions' in unfair dismissal claim

Vaccine mandate case has an 'almost insurmountable barrier to overcome', says Fair Work Commission

BY Paulinet Tamaray 20 Jan 2022

The Fair Work Commission (FWC) has recently ruled over an unfair dismissal claim which questioned the legality of a government health direction. The employee was dismissed because he failed to comply with the Victorian Chief Health Officer’s (CHO) vaccine mandate, saying it was an “experimental drug.” The employee also claimed that the CHO’s direction was “not lawful” because it was not an act of parliament.

The employee performed “customer-facing” work or “outreach” work and his employer said that vaccination is “an inherent requirement” in the role. “Without vaccination, he could not perform [it],” the employer added.

The employee said he was aware that staff “involved in direct client service delivery work” must be fully vaccinated. He also said that he “understood he could be subject to disciplinary action” but argued that he was “waiting for the [employer] to provide him with information on the ‘experimental drug’ and its safety assessment.”

Before the FWC, he claimed that the CHO’s direction was “not lawful” without the parliament and “any such law in Victoria would not be enforceable as the Australian Constitution would prohibit it.”

The employee’s case experienced some procedural issues. The FWC noted that the claim was filed beyond the 21-day time limit but it found he did not cause the delay.

When his employment was terminated, he had to return his mobile phone number to the employer and source a new mobile phone number for his personal use. His service provider failed to give him an operational number before the delay, so the FWC decided this was “beyond his control.” Thus, the employee’s delay was excused and the FWC granted an extension of time.

As to the merits of his claim, the FWC said that he has an “almost insurmountable barrier to overcome” to show that his dismissal was unfair.

As to the legality of the CHO directions and the requirements, the FWC ruled that such matters are for “the courts and not for the Commission.” The FWC then referred it for conciliation.