Court decision

Fair Work Commission upholds dismissal of unvaccinated employee

By Damon King and Adele Garnett / 02 February 2022

The Fair Work Commission (the Commission) has upheld the dismissal of an unvaccinated employee who failed to comply with a Victorian Government COVID-19 vaccination mandate in Aucamp v Association for Christian Senior Citizens Homes Inc. [2021] FWC 6669. 

Background

Mr Aucamp had worked for the Association for Christian Senior Citizens Homes Inc (Employer) since 2016, and at the time of the dismissal, was the Maintenance Manager at one of the Employer’s retirement villages. 

It was common ground between the parties that Mr Aucamp’s position was subject to the Victorian Government’s COVID-19 Mandatory Vaccination (Workers) Directions which commenced at 11:59pm on 7 October 2021 (the Directions), and that both parties would be subject to substantial fines for non-compliance with the Directions. 

Mr Aucamp and the Employer had discussions on 4 October 2021, foreshadowing the likelihood of a government vaccination mandate applying to Mr Aucamp’s position. The Employer was aware of Mr Aucamp’s anti-vaccination stance as a result of previous discussions, and the parties discussed at this meeting that Mr Aucamp could no longer be employed if the mandate came in and he was not vaccinated. 

On 8 October 2021, after the introduction of the Direction, the Employer emailed Mr Aucamp (who was on personal leave) and asked whether he could let them know as soon as possible whether he would be getting vaccinated. Mr Aucamp replied on Monday 11 October 2021 that he would not.

On 14 October 2021, the Employer dismissed Mr Aucamp because he could not “lawfully perform” his role. The Employer asserted that Mr Aucamp was not entitled to any notice, but chose to pay him three weeks’ pay in any event.

Findings

The Commission found that there was a valid reason for Mr Aucamp’s dismissal for reasons of incapacity. It was clear to the Commissioner that Mr Aucamp would not get vaccinated against COVID-19, did not have a relevant exemption, and that he was prohibited under the Directions to continue working unvaccinated for the Employer after 7 October 2021. 

The Commissioner held that Mr Aucamp was sufficiently informed of the reason for dismissal and given an opportunity to respond - Mr Aucamp was alive to the possibility that he could no longer be employed if he was not vaccinated from the meeting on 4 October 2021, and he confirmed that he would not be getting vaccinated by email after the Direction was implemented. No concerns were raised by the Commissioner about the Employer contacting Mr Aucamp, or dismissing him, whilst he was on personal leave.

Whilst acknowledging Mr Aucamp’s various concerns in relation to COVID-19 vaccination, the Commissioner held that they were essentially irrelevant as the Employer had to comply with the Directions by law. The Commissioner acknowledged that the Employer did not allege serious misconduct, which would have meant that no notice was payable under the Fair Work Act 2009, but also noted that the Respondent did not have capacity to provide any further notice because of the swift introduction of the Directions. 

Key Takeaways

  • Unsurprisingly, the Fair Work Commission upheld the dismissal of an unvaccinated employee in the presence of a government mandate.  
  • The Employer was nonetheless required to go through a procedurally fair process of informing the employee of the possibility of dismissal and providing an opportunity to respond (simply responding as to whether he was going to be vaccinated). A fairly simple process can be undertaken by an Employer to fulfill these requirements in the presence of a government mandate. In our experience, this is often complicated by an employee wishing to express broader concerns about the vaccine or with the relevant mandate. These do not need to be responded to by an employer in the face of a government mandate and it is unnecessary for the employer to issue a direction to get vaccinated. However, it is always important to be respectful in communications with employees, acknowledging concerns. As was stated in this matter, essentially an unvaccinated employee’s grievance usually lies with the decision of the relevant government in the face of a government mandate.
  • Employers can in certain cases contact and ask for responses from employees who are on personal leave, however, again, any contact must be respectful and undertaken with great care to ensure that any illness is not exacerbated. Unless an employee has a medical certificate that expressly states words to the effect that they are not able to respond to any work related matters, it is generally reasonable to communicate with an employee whether by email or by phone (including in relation to responding to disciplinary matters or possible termination of employment), in the absence of other information to the contrary. In this matter, it was important that contact be made with the employee due to the impending implementation of the Direction.
  • In the presence of a government mandate whereby an employee can no longer lawfully work, a paid notice period is not required. Outside of the requirement to payout any leave entitlements (or any other contractual payments), it is up to the employer whether any additional ex-gratia payments are made to the dismissed employee. 

It remains to be seen how the Fair Work Commission will treat dismissals due to non-compliance with an employer’s policy of mandatory vaccination. This is likely to come down to whether the relevant policies are “reasonable and lawful directions”, which will depend on the particular circumstances of the case, including:

  • whether consultation requirements were met in implementing the policy. This is a mandatory requirement under Work Health and Safety legislation and industrial instruments such as modern awards and enterprise agreements – see our Step by Step Guide to Effective Employee Consultation;
  • whether there were any other safe and effective alternatives to the policy mandate (noting the virulence and contagiousness of the COVID-19 virus and, in particular, certain variants such as Omicron); and
  • specific objections or responses of a particular employee, including any medical contraindications to COVID-19 vaccinations.  

In our view, where an appropriate consultation process has been undertaken, in circumstances where employees are required to interact closely with each other and members of the public on a regular basis, it is likely that a vaccine mandate will be held to be a reasonable and lawful direction due to the employer’s health and safety obligations and the high risk of catching and spreading COVID-19.  

Developing and implementing a COVID-19 vaccination policy can be complicated, and requires detailed consideration, analysis and consultation.  For further information on what to consider, see our previous article No jab, no job: mandating workplace COVID-19 vaccinations in the current legal landscape and contact our Workplace and Employment team for detailed advice specific to your situation.
 

Authors
Damon King
Special Counsel
Damon King is a Special Counsel in our Workplace and Employment practice with extensive knowledge of industrial and employment law matters.
Adele Garnett
Senior Associate
Adele is a Senior Associate in our Workplace and Employment practice.

What’s new

Subscribe
Receive email updates of our new publications.