FWC dismisses claim of insufficient consultation by employee

FWC dismisses claim of insufficient consultation by employee

The Fair Work Commission has rejected an unfair dismissal claim from an employee who challenged the extent of consultation undertaken by retail giant Woolworths in introducing a mandatory inoculation policy for employees in response to the COVID-19 pandemic. The case highlights the importance of engaging in consultation with relevant stakeholders before policies are implemented.

The employee, ‘CN,’ was employed as a part-time store member at Woolworth Group’s BIG-W store at Jesmond in New South Wales. He commenced employment on 15 November 2017, is opposed to vaccination generally, and was dismissed from his employment because he chose not to be vaccinated against COVID-19.

CN’s dismissal arose because Woolworths Group Limited (“Woolworths”) introduced a group-wide policy across its workforce of approximately 180,000 employees that required employees to be vaccinated against COVID-19, subject to a small number of exemptions (Vaccination Policy).

CN claimed that the directions in the Vaccination Policy were both unlawful and unreasonable, and consequently, the decision to terminate his employment for failing to comply with that Policy was unlawful.

His primary argument against Woolworths was that management had failed to adequately consult with him and relevant stakeholders prior to implementing the Policy. He also claimed that the direction in the Policy to have two doses was unreasonable as it was accepted that it is less effective than receiving three or four doses.

In his decision, Deputy President Michael Easton noted the 5-member Full Bench ruling in CFMMEU v Mt Arthur Coal where it was held that a direction contained within a policy might not constitute a reasonable direction if the employer has not adequately consulted with relevant stakeholders before implementing or enforcing the Policy.

Unfortunately for CN, the Deputy President was more than satisfied that he had every opportunity to participate in the consultation process undertaken by Woolworths. In October 2021 and February 2022, CN posted his opposition to vaccination on Woolworths’ internal communications platform (“WorkJam”) as well as Facebook which satisfied the Deputy President that CN was on notice of the company’s intention and could avail himself of all relevant information provided to all staff.

It was also noted that Woolworths had engaged in extensive consultation with all relevant unions regarding the proposed Policy, as well as engaging extensively with Health and Safety Representatives (HSRs) across their Australian workplaces.

The Deputy President rejected CN’s claims that consultation required face-to-face training with employees during paid time. As he noted,

“I do not accept this criticism of the consultation process. In my view, it is sufficient for employers to invite rather than compel employees to respond or consult. It is not necessary that employers provide paid time for consultation, particularly if a significant portion of the workforce is part-time or casual”.

The Deputy President concluded,

There is no basis to find that the direction given within the Vaccination Policy was unreasonable because of any shortfall in Woolworths’ consultation process”.

The Deputy President also accepted, based on current medical evidence, that the requirement within the Vaccination Policy to have a minimum of two inoculations was reasonable.

The application was dismissed.

CN v Woolworths Group Limited T/A Woolworths Group [2022] FWC 2848 (24 October 2022)

For queries about the pandemic, policies, consultation, 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 dean.cameron@workforceadvisory.com.au

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.

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