Refusal to receive mandatory COVID vaccinations reasonable grounds for dismissal

Refusal to receive mandatory COVID vaccinations reasonable grounds for dismissal

A long-term employee has failed to convince the Fair Work Commission that he should be able to perform his duties without being vaccinated against COVID-19, despite a government order mandating those requirements. This is an issue that is likely to become more commonplace following the recent and ongoing pandemic.

The employee had worked for Regal Cream Products Pty Ltd trading as Bulla Foods (Bulla) as a Mixed Plant Operator for seventeen years until the termination of his employment effective from 25 October 2021.

The reason for his termination was his choice not to be vaccinated against the COVID-19 virus, which was a requirement for his occupation under Victorian Government public health orders.

On 7 October 2021, the Victorian Chief Health Officer issued the COVID-19 Mandatory Vaccination (Workers) Directions. The Directions required that, unless a valid medical exemption applied, in order to work on-site, all `manufacturing workers’ must receive a first vaccination dose or be booked in by 15 October 2021 and must be fully vaccinated by 26 November 2021.

Bulla consulted extensively with their workforce in the period from 1 October 2021, including a notice that from 15 October 2021, non-exempted unvaccinated employees would not be allowed to attend work at any site, that they may be unable to meet the inherent requirements of their role, and consequently, may be terminated.

The operator had major health concerns about being vaccinated, consulted a doctor, and on 13 October 2021, provided Bulla with a medical certificate.

After reviewing the certificate, the General Manager – People & Culture determined it did not meet the requirements of the Directions. Firstly, it did not certify the operator was unable to receive a dose. Secondly, there was uncertainty about the doctor’s eligibility to provide an exemption.

Bulla wrote to the practitioner detailing the requirements needed for an exemption and offering to arrange and pay for the operator to attend an independent medical specialist to provide advice regarding exemptions. The offer was not accepted.

On 25 October 2021, the operator confirmed that he did not intend to be vaccinated and had not otherwise provided a valid medical exemption.

Bulla determined that the operator could not legally perform his role, that there were no suitable alternate duties available, and terminated his employment.

Bulla took a consistent approach in this regard as, in addition to the operator, there were more than a dozen other employees whose employment was terminated.

The decision was affirmed by Commissioner Bernadette O’Neill. As she noted,

“(the operator) chose not to become vaccinated because he had serious health concerns, however, he did not provide a valid medical exemption. This meant that he was not able to fulfill his role, which could only be performed on-site, and there were no suitable alternate duties available for him to undertake. For these reasons, Bulla had a sound, defensible and well-found reason to terminate (his) employment”.

The Commissioner also noted that the operator “was provided with ample opportunity to provide a valid medical exemption but did not do so. He was offered extensive support and assistance by Bulla to assist him in obtaining medical assistance given his real concerns about taking a vaccine. He elected not to take up any of these offers”.

The operator’s unfair dismissal application was dismissed.

Mr E v Regal Cream Products Pty Ltd (U2021/10166) 9 February 2022

For questions about the pandemic, vaccinations, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 0417 622 178, 1300 WAL LAW 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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