Can HR fire an employee for 'failure to prove COVID jab'?

Allegation left worker 'stressed and confused'

Can HR fire an employee for 'failure to prove COVID jab'?

A recent Fair Work Commission (FWC) decision dealt with a “stressed and confused” worker who received letters from her employer claiming that she had “abandoned her employment” because she failed to provide evidence of her COVID-19 vaccination. The employer then dismissed her.

The worker filed for an unfair dismissal remedy before the FWC, questioning if the employer’s basis had merit. Learn about what the FWC has to say in this case that involved a mix-up of letters that the employer mistakenly sent to the worker.

The worker was employed as a casual retail worker at a KFC restaurant in Victoria. Around October 2021, Vic’s Acting Chief Health Officer issued COVID-19 Mandatory Vaccination Directions for retail workers to have their doses on specific dates.

The worker did not provide the required vaccination evidence when it fell due. Consequently, the employer did not roster her for work again.

After a month, the employer contacted her about her vaccination status. After that, the employer sent her an “abandonment of employment” letter. This was followed by a “show cause” letter addressed to the worker.

The employer then sent another “abandonment of employment” letter in December. Finally, it terminated her employment in January for failure to show proof of COVID-19 vaccination.

Did the “abandonment of employment” letter terminate the worker’s employment?

No, the worker was not dismissed because there was no abandonment on her part. The FWC noted that the employer’s letters “were sent in error and caused stress and confusion” since it coincided with a warning that the worker’s failure to present proof of vaccination would terminate her employment.

When the FWC investigated the letter’s contents, it showed no description of possible termination.

Thus, the case serves as a reminder for HR to be vigilant in checking not only the content but also the “timing” of notices and letters to their employees to avoid any confusion. The FWC said it was “unfortunate” that a mix-up made the situation unclear for the worker.

Is there a valid reason for dismissal?

Yes. “[The worker] failed to produce evidence of having been vaccinated or a valid medical exemption and therefore could not meet a legal requirement of her job,” the FWC said.

In determining if the worker had a chance to defend her case, the FWC found that she was informed and notified when she received a “show cause” notice from the employer, given among the series of letters it sent her. The FWC further described the mix-up as an “unfortunate” incident. 

“It is unfortunate that, having realised the [“abandonment of employment”] letters were sent in error, the [employer] did not communicate [it] in writing to the [worker.] It may well have saved angst, nervous energy and the time of all involved,” the FWC commented.

Such an unfortunate circumstance is another reminder for HR to immediately correct any communication errors made to employees and keep track of said correspondences in writing for proper review and confirmation.  

Ultimately, the FWC ruled that there was a valid reason for dismissal. The decision was handed down on 14 April.

Recent articles & video

2 in 3 Australians OK with date change for Australia Day

Former security services firm fined for failing to act on Compliance Notice

Independent contractor or not: Worker asserts oral contract

Worker hired through labour hire company challenges employment status

Most Read Articles

1 in 8 new hires leaving during probation: report

FWC finds early notice of end to fixed-term contract amounts to dismissal

Spotless entities plead guilty to long service leave underpayments