Worker says there was 'constructive dismissal' because he was prevented from working
The Fair Work Commission (FWC) has resolved a dismissal dispute after a worker claims he was unfairly dismissed when his employer refused to roster him for work.The employer asked the worker to provide proof of his COVID-19 vaccine, but he failed to show his vaccination card or any medical exemption evidence. The employer stopped offering him shifts after that.
The worker is a casual forklift driver covered by the Victorian government’s directions over mandatory vaccination. The said directions had required certain employers not to permit their workers to work outside their homes unless they had provided vaccination or medical exemption evidence.
The worker argued that “his beliefs prevented him from receiving the COVID-19 vaccine” and that his vaccination status “had no bearing on his ability to do his job.” He also said the employer did not have a vaccination requirement when he started working and continued to say that “the public health orders did not apply to him” because of his “beliefs.”
The worker said he was terminated because the employer prevented him from attending the workplace. The employer said it did not dismiss him but “simply obeyed the law” when it enforced the state’s public health order.
The employer added that the worker “remains a casual on its books” and that “it will offer him shifts if he becomes eligible to attend the workplace.”
In its decision, the FWC accepted the employer’s evidence that he “remained an employee [in its] books, and his employment was recorded as 'active' in their human resources management system.”
It further found that the employer was “required by law to refuse to allow [the worker] to attend the workplace because he had not provided evidence of his vaccination status.”
Thus, the FWC held that there was no dismissal. The decision was handed down on 28 January.
Key Takeaways for HR
- When dealing with employees who opt not to have the vaccine, employers must always act within legal guidelines.
- An employer can refuse an employee entry to the workplace if they don’t provide vaccination status.
