Tue Aug 23

Unfair dismissal rulings show personal circumstances matter in vaccine refusals

Written by Giuseppe Carabetta, Associate professor, University of Technology Sydney

While legal challenges against federal and state vaccine mandates have come to nothing, in recent months two Australian workers have won unfair dismissal cases after being sacked for not complying with their employer’s vaccination orders.

These wins in the federal industrial relations tribunal, the Fair Work Commission, confirm employers do not have carte blanche to insist employees be vaccinated.

The victories do not signal a “change in the narrative” – or that future legal claims against government mandates in other courts may succeed. But they do affirm and refine principles previously applied in vaccination-related cases heard by the commission.

The cases have turned on matters of procedure.

The commission’s rulings have confirmed the general validity of employer-imposed vaccination policies but highlighted the need for fair processes when applying such policies.

Key to these two unfair dismissal rulings were that the employers went about things the wrong way and failed to consider individual circumstances.

Robyn Pskiet vs Nocelle Foods

One case ^[1] involved Adelaide woman Robyn Pskiet, sacked on 12 January 2022 by Nocelle Foods, a food wholesaler and distributor.

Pskiet was working as a quality assurance manager alongside about 60 office and factory workers at Nocelle’s Adelaide factory. She had been with the company since 2005.

The company told staff in late November 2021 it was considering implementing a COVID vaccination policy, due to workplace health and safety concerns and increasing levels of community transmission after South Australia opened its borders on November 22.

It implemented its vaccination policy on December 29. Staff were required to show evidence of their first vaccination by January 10 2022. Pskiet was dismissed for failing to provide a vaccination certificate or medical exemption.

Pskiet’s case to the Fair Work Commission was that she was concerned about the safety of then available COVID vaccines but willing to take a “safer vaccine”, such as Novavax, which the Therapeutic Goods Administration did not provisionally approve until January 20 2022 ^[2].

She argued Nocelle’s vaccination policy was not reasonable or lawful because it did not give her the option to work from home or grant her leave until Novavax was approved.

Commissioner Peter Hampton agreed.

He ruled Nocelle Foods’ vaccination policy was a lawful and reasonable direction, and refusing to comply was a valid basis for termination. But Pskiet’s dismissal was still unfair, because of her position and long-standing service, and the timing and manner of applying the policy to her.

He said “proper consideration of her circumstances” could have avoided, or at least delayed, the need to sack Pskiet.

He ordered the company to compensate her $3,462 plus superannuation. He did not, however, order the company to reinstate Pskiet – the first option when workers win unfair dismissal cases.

Bradley Dean vs Rex Airlines

The second unfair dismissal case involved pilot Bradley Dean, sacked by regional airline Rex ^[4], on December 1 2021, after 27 years of service, for breaching a policy requiring staff members to be fully vaccinated by November 1.

Rex Airlines required ‘customer-facing’ staff to be fully vaccinated against COVID-19 by November 1 2021. Luis Ascui/AAP

Dean’s position was similar to Pskiet’s. He wanted to wait for the Novavax vaccine. He asked to be given alternative duties – for example, working as a flight simulator – and requested more time to get vaccinated.

In finding for Dean, Commissioner Donna McKenna ruled the airline could validly dismiss an employee for failing to be vaccinated, but the way it had treated Dean had been unfair.

Rex’s failure to comply with procedural considerations included not discussing options to dismissal, despite assuring Dean it would.

Dean received his two Novavax vaccinations once they became available, after he was sacked. Commissioner McKenna ordered his reinstatement, with no loss in continuity of service.

Individual circumstances matter

A key message from these rulings is that employers making COVID vaccination a condition of employment is generally lawful and reasonable – at least where COVID remains a significant hazard and workers are in roles requiring proximity to others.

These principles were affirmed in a December 2021 decision ^[6] of the Fair Work Commission’s full bench.

In that case, the Construction, Forestry, Maritime, Mining and Energy Union successfully challenged a vaccine policy introduced by the BHP subsidiary operator of the Mt Arthur coal mine in NSW’s Hunter Valley.

The full bench agreed the vaccination mandate was unreasonable because the employer had failed to properly consult with employees in introducing the policy – but confirmed the general validity of vaccination policies.

Procedure also counts when it comes to dismissing an employee for failing to comply with a vaccination requirement. The same general principles have also been upheld in unfair dismissal cases concerning mandatory influenza vaccination policies.

Employers can have a general vaccination policy but must treat every individual case on its own merits and circumstances – including the timing and manner of applying the vaccination policy to the particular employee.

Extra latitude must be given to longer serving, senior employees or those with good performance records.