Worker says it's 'dangerous' to get vaccinated 'soon after' infection
The Fair Work Commission (FWC) recently clarified conflicting views between a worker and her employer as to whether there was a dismissal or not. The employer claimed she repudiated her contract when she failed to comply with a health directive after contracting COVID-19, but the worker said she could not comply due to possible health risks of vaccination “soon after” an infection.
The worker was employed as a real estate sales agent. In early October last year, she and her employer discussed COVID-19 health directives that would affect the performance of her duties, including attending open homes and face-to-face appraisals.
In the same month, the Victorian Government issued health directions that restricted work outside a person’s home if the person was a real estate worker. The exception is unless the person was recognised as ‘excepted’ or received their doses on specific dates.
Towards the end of October, the worker contracted COVID-19 and was required to isolate.
The worker immediately informed the employer that she had a vaccination exemption because her doctor had advised: “it was dangerous to receive the vaccine so soon after she had contracted COVID-19.”
In early November, the employer requested evidence of exemption but the worker “refused to provide it.” Soon after, the employer notified the worker of the termination of her employment due to her “inability to perform the inherent requirements of the role to work in Company premises in compliance with the Victorian Public Health Order” and because
there is no other position the Company can offer you in the business or ability to provide you with useful work to perform from home.”
The worker filed for unfair dismissal before the FWC. The employer argued that she was not dismissed but “rather repudiated her contract of employment by failing to get vaccinated and/or failing to provide proof of being exempt from vaccination requirement.”
The decision
The FWC found the communications between the worker and the employer were consistent with dismissal because she could not meet the “inherent requirements” of her role since she was unable to work outside her home, and no alternative work was available.
When does an employee repudiate their contract of employment?
The test for determining whether a party has repudiated the contract is whether the said party’s conduct, when assessed objectively, displayed an intention to no longer be bound by it.
The FWC noted that the state’s health directive does not require employees to be vaccinated but rather “restricts the place that unvaccinated (and non-excepted) persons can perform work.”
It further said that the worker appeared to be an “excepted person.” It then found that the health directive required employers “to collect certain information” but did not appear to require employees “to provide medical evidence to support an assertion that they are an ‘excepted’ person.”
It also pointed out that the employer could order a “direction” to the worker to give supporting evidence, but it did not.
Thus, the FWC ruled that the worker did not repudiate her employment contract but was dismissed. The decision was handed down on 3 March.
