Failure to follow lawful and reasonable request grounds for dismissal
A fully vaccinated employee who failed to provide documentation confirming her vaccination status has failed to convince the Fair Work Commission that she was unfairly dismissed.
The female employee, ‘MG’, was employed by Dnata Airport Services Pty Ltd (Dnata) as a Passenger Service Delivery Agent (PSA) at the Sydney International Airport prior to her dismissal on 11 November 2021. She commenced employment with Dnata on 23 July 2018 in the PSA role.
The reason for her dismissal was that she did not comply with the requirement to provide proof of vaccination against the COVID-19 virus. Two other employees were also dismissed by Dnata at the same time for failure to comply with the mandatory vaccination requirements.
The NSW government issued two public health orders on 28 June 2021 and 1 September 2021 mandating vaccination requirements for certain workers. The orders included a Vaccination Program that identified customer service agents, including those performing a PSA role, must be vaccinated.
As part of the orders, the ‘Red Zone’ at Sydney Airport became a compulsory vaccinated area. The zone refers to all areas after the passport control and security screening areas, all arrival areas, and the administration area on Level 3 of the terminal. The majority of Dnata staff work in the zone.
On 1 July 2021, Dnata’s Airport Services Manager issued a memorandum to all staff informing them that COVID-19 vaccination had now become an inherent requirement of their role. On 3 August 2021, MG’s Manager emailed her requesting her vaccination status or an indication of what she intended to do regarding compliance.
On 6 August, she replied indicating that she was undecided and asked if there were alternate positions available for her outside the ‘Red Zone’. Her manager replied and advised her that due to the reduction in volume arising from the pandemic, no other vacancies were available. She was requested to schedule a teleconference with HR to discuss her situation but chose not to do so.
On 14 September 2021, Dnata sent a letter to all Red Zone employees who had not provided proof of vaccination, including MG, to advise that they could no longer be rostered to work. They were given a further opportunity to have their first vaccination no later than 21 September 2021. MG sent a short response on 20 September 2021 advising that she was still considering her options.
Dnata replied to her, offering a final extension to commence inoculation up till 30 September 2021. She did not respond. A series of emails occurred over the following weeks, including an offer for MG to be transferred to the warehousing section of the business, as well as a request to attend a formal meeting. She did not respond to either request.
MG was advised of the termination of her employment via letter on 11 November 2021.
During the hearing before Deputy President Bryce Cross, MG was able to produce confirmation of receiving the Pfizer on 23 September and 18 October 2021. Dnata had not seen this documentation.
Deputy President Cross determined that the vaccination request was lawful and reasonable in the circumstances and noted,
“The Respondent provided the Applicant with approximately 4.5 months to comply with the Public Health Orders. This timeframe was more than a reasonable period for the Applicant to make an informed decision regarding getting vaccinated against COVID-19 and thereafter advise of such vaccination”.
“The Applicant’s conduct in not promptly advising the Respondent of her vaccination status belies any reasonable explanation”.
As he summarised,
“The Respondent had a valid reason for the dismissal, and it afforded procedural fairness to the Applicant prior to making the decision to bring her employment to an end”.
The application was dismissed.
For queries about reasonable and lawful instructions, COVID-19, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 0417 622 178, 1300 925 529 or via email to email@example.com
Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.