New South Wales IRC addresses claim of unfair dismissal
New South Wales Industrial Relations Commission (IRC) dealt with the case of a young mother who did not comply with a vaccination mandate from her employer, which ultimately led to her dismissal.
She argued that she did not comply because she feared “illness or injury” to herself and her new baby and asked the employer to clarify the consequences of the jab “in detail.”
The central question is: Is it solely the employer’s job to justify a health direction?
Requesting more information
The employee started as a radio communications officer with the New South Wales Police Force (NSWPF) in January 2020. Several months later, she went on maternity leave and gave birth in September of the same year.
She was on maternity leave without pay from December 2020 and was due back at work in January 2022 or over twelve months later.
The COVID-19 pandemic took hold in Australia in early 2020, and so in March 2020, the first Public Health Order (PHO) regarding self-isolation was made in NSW.
According to the evidence of the employer’s superintendent, from March 2020 onwards and throughout the pandemic, thousands of police officers were deployed to enforce PHOs relating to quarantine, isolation and social distancing.
In or around February 2021, the NSWPF was given priority access to the State-run COVID-19 vaccination program. From that time until mid-2021, vaccination within the NSWPF became mandatory for those NSWPF officers whose duties related to quarantining returned travellers and/or persons infected with COVID-19 and their close contacts.
Otherwise, vaccination was optional but strongly encouraged, with all NSWPF members able to attend vaccination appointments during work hours.
The superintendent emphasised that NSWPF members had and have high exposure to COVID-19 by the very nature of their role.
‘High risk’ for workplace safety
Police officers provide frontline emergency services, assisting and interacting with community members, including vulnerable persons. Operational police officers work alongside or interact with other officers and administrative employees (such as the employee) who work in police stations, Command headquarters, or other NSWPF premises.
The employer explained that there’s a “high workplace safety risk” to all NSWPF members and under work health and safety laws, “NSWPF was obliged to minimise, so far as reasonably practicable, the risk COVID-19 poses both to workers and to members of the NSW community with whom members of the NSWPF interacted on a daily basis.”
To this end, from February 2021 to September 2021, it sent regular written communications through various communication channels, including the internal ‘NEMISIS system’, which sends messages to everyone in the NSWPF, including information and fact sheets regarding the vaccines, strongly encouraging members of the NSWPF to become vaccinated against COVID -19 and informing them of arrangements to receive vaccinations.
NSWPF also created a COVID-19 work, health and safety page on the NSWPF intranet, which remains active to this day and can be accessed by all staff. It included access to FAQs, fact sheets, and resources and information outlining the control measures utilised to help minimise the risk associated with COVID-19. Between 2020 and 2022, NSWPF sent out hundreds of communications to all staff concerning the pandemic and the control measures implemented by NSWPF.
The employee’s dilemma
The employee was concerned about the effects of the vaccine since she was a new mother then. She wrote a letter to the employer for it to explain “in detail” the consequences and reasonableness of the direction.
After a series of exchanges between parties, the employee still chose not to comply, but evidence showed that she did not independently “seek out medical advice from her treating physician regarding the risks to her or her breastfeed baby,” nor did she call the COVID-19 vaccination program hotline for more information.
She also did not apply for an exemption or ask that her vaccination be deferred to a time more proximate to her return to work, or to a time after the weaning of her child, or to allow her to obtain medical advice.
In short, the employee fully depended on the employer to justify its direction. Instead, she continued to be non-compliant with the direction when she was expected to report for duty. Due to her failure to follow, she was terminated.
She then submitted her argument before the IRC, which said:
“I, a young mother of 25 years of age, was then dismissed from the New South Wales Police Force for nothing more and nothing less than asking questions. Asking health and safety related questions is what ultimately led to my referral to the conduct unit. An allegation of misconduct then proceeded and finally a harsh, unfair and unjust dismissal.”
HRD previously reported on the case of a worker who challenged her employer’s directions about getting vaccinated against COVID-19. The issue there was whether she “refused to work” or was “excluded from work,” a crucial distinction that would determine her entitlements under labour laws.
In another case, a manager said she was forced to resign after questioning a company policy’s enforcement on vaccination boosters. She said she was “concerned over her own personal liability.”
Was there unfair dismissal?
“It is now well settled that a vaccine mandate is prima facie lawful where it is introduced to protect the health and safety, at work, of workers and other people, such a direction being within the scope of the employment and there is nothing ‘illegal’ or unlawful about becoming vaccinated,” the IRC said in its decision.
“Any person who was genuinely interested in knowing the risks posed by the COVID-19 vaccines and had an open mind as to whether they should bear those risks in order to comply with a direction of their employer, would ask those questions of a suitably qualified and independent person, rather than rely on the advice of the unqualified person or institution who was requesting that they receive a vaccination.”
“The fact that the employee took no steps whatsoever beyond reading material on the internet, to seek out qualified advice as to the risks the vaccine might actually pose to her and/or her child, particularly in circumstances where she had the opportunity to do so, leads the Commission to the view that the applicant was entirely disingenuous in asking the questions of her employer which she did,” the IRC added.
It faulted the employee for failing to seek more information than the employer had provided her, and for the IRC, it demonstrated the employee’s unwillingness to comply.
“In short, she embarked on a strategy by which she thought she could avoid the ramifications of her choice not to follow the direction. By asserting her right to make a fully informed decision whether to get vaccinated or not and then insisting that her employer give her answers to the numerous questions she asked, she sought to avoid expressly telling the respondent that she did not intend to get vaccinated,” it said.
“By this means, the employee sought to avoid management action.”
The IRC also said that did not accept that she “held a genuine desire to obtain information about the vaccines before making a decision,” since it said it was clear that “she had already made already a decision not to be vaccinated.”
Thus, the IRC dismissed the employee’s unfair dismissal claim.
