COVID shot 'my choice and is not mandated legally,' employee said in e-mail
The Fair Work Commission (FWC) has recently dismissed an employer’s costs application against its employee who filed an unfair dismissal case over its mandatory vaccination policy.
In August, the employee filed an unfair dismissal application but discontinued it in October. In the same month, the employer applied for costs, alleging that the unfair dismissal case was “made vexatiously or without reasonable cause.”
The employee was a marketing community advisor. In May, the employer’s parent company implemented a policy requiring all staff “to register to receive a COVID-19 vaccine when they were eligible to do so.” At that time, the business premises were in an area with high COVID-19 infections and under lockdown restrictions.
By August, the employee had not registered for vaccination. She said that she “attempted to register for a vaccine but was advised that she was not eligible.” She alleged that she was warned that “if she had not registered for vaccination by the end of the day, her employment would be terminated.” She also said that an officer of her employer told her later that day that she was “dismissed without pay” and to “leave the office and not come back until she had ‘sorted out’ her vaccine.”
The employee then lodged an unfair dismissal application. She argued that she signed the vaccination policy, showing her agreement. She also provided evidence of her unsuccessful attempts to register online for the vaccine.
Before the FWC, the employer showed an e-mail it received from her which allegedly said, “vaccination is my choice and is not mandated legally,” adding that her employer was “not in a position to impose medical procedure upon me or dictate the administration of any medicines to me.”
The employer submitted that although she made an unfair dismissal application based on her willingness to get vaccinated despite her failed attempts, the intention behind her e-mail indicated otherwise. The employer said that she “was not willing.”
The employer then gave copies of its correspondence with her, showing that it offered to re-employ her upon vaccine registration. In its costs application, the employer submitted that she caused it to “incur costs because she unreasonably failed to accept two offers of re-employment.”
The FWC said that the employee did not act unreasonably in refusing the re-employment offers, noting that she did not seek reinstatement and had sought compensation instead. The FWC found that if the hearing had proceeded and if it had accepted the employee’s evidence, it would have been “reasonably open” for the FWC to conclude that she was making “reasonable attempts to comply with vaccination policy” and thus, there was no valid reason for her dismissal.
As to the employee’s e-mail, the FWC found that it showed that she was “expressing strong opposition to the vaccination policy, but it does not necessarily demonstrate that applicant did not make reasonable attempts to comply with the policy.” It held that “an employee does not need to agree with a lawful and reasonable direction in order to comply with it.”
The FWC then dismissed the employer’s costs application and found that the employee had reasonable cause. The decision was handed down on 24 November 2021.
