Case explains why an employer 'can't be expected to wait' for worker's decision
The Fair Work Commission (FWC) has recently sided with an employer who terminated the employment of a worker who was “undecided” about the COVID-19 vaccine, saying it would be “unreasonable” for the employer to be kept waiting under the circumstances.
The worker was employed as a family and carer program worker in a community support organisation. The worker was part of the team responsible for delivering support services to family, friends, and carers of people misusing substances through individual and group education. This includes structured based brief interviews, structured groups and community education programs. Before the pandemic, the worker would call clients or meet in office or at outreach appointments.
When COVID-19 hit, a series of state health directions towards the end of 2021 required the employer to ensure unvaccinated workers did not attend its facility and worked from home unless they had an exemption for a medical contraindication.
The employer informed the worker of the vaccination requirement. The latter said she was unvaccinated “but did not need to attend the facility because she could successfully perform her role from home.”
Later in a meeting, the employer reminded its workers about the requirement. The worker then said she had an appointment with a GP but when advised by the employer that her scheduled date fell outside the government-mandated timeframe for vaccination, the worker “did not bring forward the appointment.”
The employer argued that in the same meeting, the worker said the GP appointment was “only to discuss vaccination options” because the worker was still “uncertain for personal reasons.”
When the employer called another meeting to discuss the worker’s vaccine status, it told the worker that her decision not to be vaccinated within the timeframe meant she was “unable to meet the inherent requirements of her role.” Her employment was terminated after that.
The worker rejected the dismissal and said there was “no reasonable basis” for dismissing her since she had been able to “perform her role effectively from home.” She also said that “she could have been allowed to continue working from home temporarily until she was vaccinated or been redeployed to deal with their waitlisted clients for phone counselling.”
The FWC agreed that before the pandemic, a “significant proportion of the worker’s time was spent in face-to-face meetings.” It accepted the argument that “face-to-face service delivery remained a feature of the worker’s role” even during the pandemic.
The employee had no “definite plan” to get the vaccine
The FWC noted the worker’s hesitation to get the vaccine, saying she had not made any “concrete plans to comply.” It said that there was “simply no certainty” when the worker would be “capable of fulfilling the inherent requirements of her role.”
How long can an employer wait for an “uncertain” worker regarding vaccination?
In this case, the FWC considered the nature of the worker's role, saying it was
“client-facing.” The FWC said that the employer was diligent in finding ways to assist and remind the worker to comply with the vaccination. But the FWC said it would be “unreasonable” for the employer to “waive [said requirement] for an indefinite period” since the worker seemed to have no “definite” intention to comply.
The FWC found that the “opportunities provided to the worker” confirmed that she was “undecided and would not be getting vaccinated within the required timeframe.”
Thus, it ruled that the employer’s decision to dismiss her was not harsh nor unreasonable since she could not fulfill the inherent requirements of her role.
The decision was handed down on 3 March.
