Employer 'would have committed an offence' if it let employee work
A recent Fair Work Commission (FWC) decision has sided with an employer who terminated a worker who refused to comply with the state government’s COVID-19 vaccination mandate.
The worker was a relief bus driver working for a bus company operating in and around Melbourne and regional Victoria. Last year, the Victorian Government announced a vaccination mandate that prohibited employers from allowing certain persons to work outside their homes unless they received the first dose at a specific date and were fully vaccinated by the end of November 2021.
The employer then posted a memorandum on the staff notice board at one of its depots, notifying its employees of the state government's vaccination mandate. It also sent a letter to the worker saying that he was required to provide evidence of a first and second dose of a COVID-19 vaccine around the announced deadlines.
After the government released formal directions about the health order, the employer sent text messages reminding the worker of the requirement. Later, the employer told the worker that he was stood down without pay.
With the worker still refusing to comply, the employer sent an email advising that a telephone meeting was scheduled to discuss his position on the vaccination requirement. The worker did not attend the meeting. Another meeting was planned after that but the worker also failed to participate. After a few weeks, the employer finally advised that his employment was immediately terminated.
The worker argued that his dismissal was harsh. He said he did not receive some of the letters, emails and text messages that the employer said it sent about the vaccination requirement and his employment. He claims the employer’s failure to communicate the matter to him caused him to be absent from the meetings following his stand-down. He also said that a few of the emails relied on by the employer were “falsified.”
Employers must keep evidence of communications given to employees relating to government requirements
The FWC noted that the worker had not complied with the state government’s requirements, either by being vaccinated for his first dose or producing a medical exemption. The worker also did not give the employer “any indication of an intent to comply.” The FWC further found that the nature of the worker’s duties could only be performed from the depot and on buses, and there were no suitable alternative duties that could be “reasonably” given to him.
The FWC decided there was a valid reason for dismissal because the employer would have committed an offence that attracted a “substantial financial penalty” if it permitted the worker to drive its buses after the government’s announced deadlines.
The FWC also found that the worker had multiple opportunities to respond to the vaccination requirement, including notice of the employer’s memorandum, the stand-down letter, and the scheduled meetings to discuss his concerns. All of these communications were proven by the employer.
An employee’s opportunity to respond is an essential element of “procedural fairness”
The FWC said that the employer’s evidence established that the worker had “multiple opportunities” to respond to the employer’s advice.
In its decision, the FWC discussed that “an employee protected from unfair dismissal should be provided an opportunity to respond to a reason for dismissal relating to their conduct or capacity.” It added that an opportunity to respond should be provided before deciding to terminate employment.
In this case, the FWC ruled that the employer upheld procedural fairness. Thus, the dismissal was fair and reasonable.
The decision was handed down on 25 February.
