Expresses concern about role with vaccines
HR does its best to remind employees of the importance of following directions and policies.
Employees are obligated to follow their employer’s lawful and reasonable directions, and refusal to comply can lead to disciplinary action or even termination of employment.
But under the Fair Work Act, an employee can deny the performance of a direction if it is unreasonable, unlawful, or infringing on their rights.
In this case, a manager said she was forced to resign after questioning a company policy’s enforcement.
Background of the case
The employee was the operations manager of the Multiple Sclerosis Society of Western Australia Inc.
Due to the nature of the business, the employer had to comply with the WA government’s state directions on mandatory vaccination requirements, including a booster vaccination drive.
Leading up to the state’s booster policy, there was “significant internal dialogue” in the company, including talks with the manager over the impact of the booster vaccines and how to manage employees who were not compliant with the direction.
After clarifying her position about the vaccination policy, the manager allegedly “resigned.”
The latter filed an unfair dismissal claim, arguing she was forced to resign.
The parties’ arguments
The manager said she “exercised a workplace right by requesting written confirmation of the verbal directions and assurances from senior management about exemptions being provided to ‘non-operational’ employees who had not yet complied with the state’s vaccination directions.”
She said the employer directed her to “roster workers without having confirmation in writing” that the employer “had an exemption or extension from the state’s booster vaccination directions.” She said the employer’s failure “to assure her” gave her “no alternative but to resign from her employment.”
She said that as the operations manager, she was “concerned over her own personal liability under the Booster Vaccination Directions.”
She further said she was “stressed” and added the employer has a “hierarchical and siloed structure.”
On the other hand, the employer maintained that she willingly resigned but acknowledged that the manager “raised her concerns” with senior management “over how to roster employees who were not yet compliant with the booster vaccination directions.”
It said that the policy was “lawful and reasonable.”
HRD previously reported on the case of a worker who was dismissed after non-compliance with an employer’s vaccination policy, arguing that it did not have a “thorough and adequate” consultation process.
Another story covered a decision that sided with an employer who fired a worker who refused to comply with the state government’s COVID-19 vaccination mandate.
The FWC’s decision
The Fair Work Commission (FWC) first discussed what “forced resignation” meant.
It said that a person had been dismissed if:
- The person’s employment with his or her employer has been terminated on the employer’s initiative; or
- The person has resigned from his or her employment but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
It said the manager was “seeking further assurances in writing” from the employer concerning the booster vaccination direction.
Instead, she got “verbal directions” from the employer, saying state authorities authorised it.
“It appears she was seeking assurance in writing to provide her with ‘greater peace of mind,’ however, there is no evidence to indicate that the employer was deliberately not forthcoming with the information … in an attempt to force the manager to resign or create an untenable employment relationship by requiring her to carry out her duties in an unlawful way,” the decision said.
“The manager’s dissatisfaction of the employer’s preferred means of managing its organisation does not directly support a finding that the latter forced her to resign or created an environment whereby she had no alternative but to resign,” the FWC said.
“Although not ideal to the manager, the employer’s choice of organisational management, even if somewhat deficient, is not so dysfunctional” to be considered as forced resignation, the decision said.
Thus, the FWC ultimately ruled that there is no unfair dismissal.
