Mineworker dismissed for failing to comply with vaccination requirements
The dismissal of a mineworker who failed to be vaccinated against COVID-19, in breach of government regulations, has been upheld by the Fair Work Commission.
The employee ‘MH’ commenced employment with RTL Mining and Earthworks Pty Ltd (RTL) on 29 November 2019. He was initially engaged as a “Casual/Seasonal Truck Driver/Plant Operator”. He commenced on a full-time basis as a “Production Employee” from 13 January 2021 at the Yallourn Mine, working predominately as a Driller’s Offsider. The role was completely site based.
RTL is a provider of mining, civil construction, heavy earthmoving plant hire services, and general and over-dimensional transport services in the Latrobe Valley and surrounding regions, including at the Yallourn Mine.
In mid-September 2021, the Victorian government mandated that any person performing work at a construction site must receive a first dose of the COVID-19 vaccine by 2 October 2021 and must be fully vaccinated against COVID-19 by 13 November 2021, unless a valid medical exemption applied.
On 4 October 2021, the Yallourn Mine Manager wrote to MH indicating their understanding that he was unvaccinated, enclosed a copy of the government directive, and informed him he would no longer be able to enter the mine site. Whilst suspending him without pay, RTL offered to arrange and pay for his inoculations.
MH responded via email the following day, enclosing a medical certificate, and stated that he was attending his GP on Wednesday to discuss COVID-19 vaccinations. The medical certificate certified that he was unfit for work from 4 October to 5 October because he was “suffering from a medical condition”.
On 10 October 2021, the Manager again wrote to MH and advised him that if he could not provide proof of partial vaccination, a booking to have the vaccination or a certified medical exemption, it would be likely that he would be advised of his termination effective from 15 October 2021.
A series of emails occurred between both parties, but ultimately, following on from the failure to provide the information required, MH was terminated on 25 October 2021.
In upholding the termination, Commissioner Nicholas Wilson noted,
“The nature of the work performed by Mr (H), the absence of any capacity for work to be performed off-site, and the obligations cast on RTL by the Workers Direction combine to it being that case that Mr (H) was unable at the time of his dismissal to perform the inherent requirements of his role”.
It should be noted that Commissioner Wilson rejected an argument from MH that he should have been allowed additional time to research the benefits of vaccination and assess what, if any, impacts that inoculations may pose to his health. As the Commissioner said, “RTL is entitled to set its own policies about unpaid leave and there is no proposition that steps taken by another employer should influence the findings in this matter”.
The application was dismissed.
For queries about inoculations, the effect of COVID-19 on the workplace, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 WAL LAW, 0417 622 178 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.