Case upholds employer's call to dismiss worker who had blood tests and health checks
A recent Fair Work Commission (FWC) decision sided with an employer and upheld a worker’s dismissal who said he “should have been allowed time to research the benefits and risks of COVID-19 vaccination” and become “comfortable with the idea of being vaccinated.”
The employer argued that he failed to fulfill the “inherent requirements” of the role when he could not comply with the mandatory vaccination. Thus, it terminated his employment.
The employer provides mining, civil construction, heavy earthmoving plant hire services, and general and over-dimensional transport services in the Latrobe Valley and surrounding regions. The worker was a production employee who worked as an on-site driller’s offsider.
Due to the COVID-19 pandemic, Victorian Chief Health Officer (VCHO) issued directions mandating vaccination for persons performing on-site mining work.
The employer advised its workers that they could not work on-site unless vaccinated. The worker remained unvaccinated, so the employer’s general manager wrote to him. A part of the letter said:
“While we cannot compel you to be vaccinated and accept this is a matter for you, unfortunately your decision means you cannot meet what has become a legal requirement of your current employment.”
Later on, his employment was suspended without pay. The worker argued that he wanted to check with his GP first before getting the vaccine. He ordered blood tests for clotting and other health checks. In a letter, he explained:
“I received my blood results for blood clotting and they came back all good. My GP and I are still getting health checks done for me to get the vaccination. I still have not gotten enough information from my GP whether the vaccine is going to be safe for me to take and I could not bring myself to be vaccinated without more information and certainty that it would not cause health issues immediately or in the future.”
“I can not and will not rush these decisions without proper information,” he added.
The worker then booked a few appointments for vaccination but failed to show up in each one. The employer then decided to terminate his employment with a letter that said:
“We do understand that the decision to be vaccinated is a personal decision for you. However, as we previously indicated to you the consequence of this decision is that you cannot perform what is a legal requirement of your role.”
The worker answered with, “I have not said I’m not going to get the vaccination just not within the timeline that [the employer] has presented.” Afterwards, he filed a claim for unfair dismissal.
Before the FWC, the worker said that “he should have been allowed time to research the benefits and risks of vaccination and to become comfortable with the idea of being vaccinated.”
The worker cited examples of people he knew who worked with another employer and were “allowed unpaid leave until their status changed.”
Should another employer’s policies influence the FWC?
The FWC rejected the worker’s argument, saying it was not persuaded in his favour. It said that the worker’s employer is “entitled to set its own policies about unpaid leave and there is no proposition that steps taken by another employer should influence the findings in this matter.”
The decision
The FWC found the worker unable, at the time of his dismissal, to perform the inherent requirements of his role. It said that such was a valid reason for the dismissal related to his capacity.
Thus, it ruled that the dismissal was fair and reasonable. The decision was handed down on 4 March.
