Was worker unfairly dismissed over vaccine policy?

Retail worker said employer didn’t effectively consult with staff on mandate

Was worker unfairly dismissed over vaccine policy?

The Fair Work Commission (FWC) dealt with a case involving an employee who alleged he was unfairly dismissed from employment because of an “unreasonable” policy that requires workers to be vaccinated against COVID-19.

However, the employer contended that the policy was a matter of health and safety for employees in the workforce. 

More importantly, the employer noted that it extensively consulted with its workforce before enforcing the policy, contrary to the worker's contention that there was a lack of consultation before implementing the vaccination policy.

In July, the FWC ruled that the vaccine mandate of a shipbuilding company was legal and reasonable, following a complaint filed against them by two unions.

Background of case

The worker was employed as a part-time store member at a large retail store in Jesmond, and was employed on 15 November 2017.

The worker was opposed to vaccination, and the employer dismissed him from employment because he chose not to be vaccinated against COVID-19.

The dismissal occurred because the company introduced a group-wide policy among its workforce of around 180,000 workers that mandated them to be vaccinated against the disease, subject to a small number of exemptions.

The worker argued that his employer failed to consult effectively with him and other significant stakeholders before enforcing the vaccination policy.

Instead of merely leaving it to chance, the worker said that the company should have directed its employees to participate in the consultation.

In its defence, the employer heavily relied on the expert evidence of a specialist who said that, in specific reference to the company’s business, “the requirement for workers to be double vaccinated against COVID-19 by February/March 2022 was an appropriate control to mitigate the risks of COVID-19 in the workplace.”

Moreover, the employer also argued that by the time it came to consider the implementation of a vaccine mandate, the company had collected relevant information from its workforce about vaccination and did extensive consultation regarding the policy.

“Data had been collected on ‘team sentiment,’ including vaccination levels, levels of vaccine hesitancy and opposition to vaccination, support for and concerns about working with unvaccinated staff, and the like,” the FWC ruling stated.

In December, the Queensland government said vaccination mandates covering workers of private health care facilities would be up to employers.

FWC’s findings

Considering all the matters, the commission rejected the worker’s argument as the dismissal was not harsh, unjust, or unreasonable.

The FWC held that it was sufficient for the employer to invite rather than compel its employees to engage in the consultation process.

It was also satisfied that the employer adequately consulted with its workforce before coming up with the decision to implement the vaccination policy.

Moreover, the FWC said that the worker had every chance to participate in the consultation process to question and raise concerns about issues relevant to the proposed policy, and that he was given the same opportunity as every other employee during the process.

Lastly, the commission found that the company’s implementation of the vaccine mandate was objectively reasonable as a work health and safety control measure.

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