The recent Fair Work Commission (FWC) decision of Owens v I-Med Radiology has provided cautionary guidance to unvaccinated applicants making unfair dismissal applications.
The decision comes after a wave of unfair dismissal decisions involving mandatory vaccination directives have revealed similar unsuccessful themes for applicants in 2022 so far.
In this matter, Deputy President Asbury has proactively set out a 10-point rebuttal of COVID-19 related arguments, to help the applicant consider whether to proceed with her case.
After more than 13 years’ service, Mrs Owens was dismissed from her employment by I-Med Radiology in December 2021. The decision was made by I-Med Radiology that Mrs Owens was unable to fulfil the inherent requirements of her role as a radiographer, due to her failure to comply with the company’s COVID-19 vaccination policy and Queensland’s mandatory vaccination public health orders at the time.
The case before the FWC concerned whether Mrs Owens had lodged her application within the required 21-day timeframe, as the effective date of her dismissal was unclear.
Mrs Owens had attended a meeting with the company’s Human Resources Business Partner and her support person on 17 December 2021. She was then provided with a letter on 21 December 2021 terminating her employment.
Leading up to her dismissal, Mrs Owens made assertions and demands to the company regarding the validity of the mandatory vaccination direction under the “written law”.
The Commission’s decision
Deputy President Asbury found that Mrs Owens had lodged her application within time, as the company did not tell her “in plain and ambiguous words” that it had definitively dismissed her in the 17 December 2021 meeting.
Therefore, she had reached the stage where she was able to have the merits of her case determined. Deputy President Asbury expressed a provisional view that Mrs Owen’s case will unlikely succeed based on the arguments contained in her application. In relation to workplaces subject to Government directives, the Deputy President noted that arguments relating to the following 10 points have been “emphatically rejected in numerous cases”:
- “The Fair Work Commission is not a Court and has no power to make a binding declaration about the validity of State or federal legislation including health directives or orders made pursuant to State legislation.
- At the time of the Applicant’s dismissal and to date, Australian Courts have upheld the validity of directives/mandates and public health orders issued by State Governments in response to the COVID-19 Pandemic including requirements that workers in particular settings are vaccinated.
- The argument that directives/mandates and public health orders issued by State Governments are inconsistent with federal law and are invalid because of s109 of the Constitution has been rejected by Australian Courts.
- At the point the Applicant was dismissed, she was subject to the requirements of a Public Health Order issued by the Queensland Government and the Respondent was prohibited by law from allowing her to attend the workplace unless she provided evidence of vaccination.
- A requirement that the Applicant comply with the Public Health Order by receiving a vaccine, to continue to work for an employer, does not involve coercion or forcing the Applicant to participate in a medical trial.
- Incentives to encourage employees to be vaccinated are not coercion.
- The Applicant is entitled to her views about vaccination and to refuse to be vaccinated, but that is a choice and to decline to be vaccinated or provide proof of vaccination pursuant to legal requirements for entry to a workplace, will result in the employee being legally excluded from the workplace.
- While the choice may be difficult, it is nevertheless a choice.
- COVID-19 Vaccinations are approved for use in Australia pursuant to Commonwealth legislation and employers are not required to prove their safety or efficacy to employees or to the Fair Work Commission in the event of a dispute with an employee.
- Employers are not required to lobby Governments to have directives revoked or amended before dismissing employees for non-compliance.”
The Deputy President made it clear that Mrs Owens’ application is not strong and substantial hurdles to success appear to exist.
As the pandemic progresses, we have highlighted some of the key takeaways for employers to consider in vaccine-related dismissals:
- The 10-point rebuttal provided by the Deputy President only relates to workplaces subject to mandatory vaccination requirements under government directives.
- Although most recent decisions show support of workplaces subject to government directives, it is important to remember that unfair dismissals are multi-factorial.
- The FWC may consider whether the employee could have accessed leave entitlements while the directive was in force or whether alternative duties were available to the employee which did not require the employee to be vaccinated.
- It is often not until a matter is fully heard and evidence is taken and tested that the actual strength or weakness of a case emerges.
- A dismissal can still be unfair even if there is a valid reason, for example if the employer has manifestly failed to provide procedural fairness.
- Further decisions will be handed down by the FWC and the Courts, which are likely to follow past decisions. In Mrs Owens’ case, the Deputy President provided her with a link to the Commission’s website in relation to COVID-19 related cases.
In relation to effecting termination of employment, the case serves as a salient reminder to provide plain and ambiguous notice to employees, which is generally best delivered in writing.