Self-represented worker challenges COVID vax-status sacking in court – and loses
A worker who refused to reveal his COVID vaccination status has lost his appeal against dismissal in the Federal Court.
In a decision handed down on 9 December 2025, Justice Snaden of the Federal Court of Australia dismissed an appeal by former maintenance technician Nikhil Gogulwar against his former employer, H.B. Fuller Company Australia Pty Ltd. Gogulwar had argued that his 2021 dismissal breached the “general protections” provisions of the Fair Work Act, but the court backed the company’s decision.
Gogulwar worked as a maintenance technician at H.B. Fuller’s Dandenong South factory. His role required him to be on site to service and maintain plant and equipment. His terms of employment were found partly in a written contract signed in February 2019 and partly in the H.B. Fuller Company Australia Ltd Enterprise Agreement 2019. During the COVID-19 pandemic, the Victorian Government issued public health directions that included mandatory vaccination requirements for workers performing authorised work onsite.
H.B. Fuller responded with a town hall meeting and a written memorandum on 5 October 2021, advising staff that workers needed at least one dose by 15 October 2021 and to be fully vaccinated by 26 November 2021 to continue working onsite. The memo also told employees they could use accrued annual leave, with unpaid leave considered on a case-by-case basis, if they did not want to be vaccinated.
Gogulwar raised concerns about mask requirements and later resisted the vaccine mandate. He emailed management with questions about the mandate dates and, on 13 October 2021, lodged a complaint with WorkSafe Victoria. In that complaint, he referred to consultation obligations under Victorian health and safety law and to his workplace rights under the Fair Work Act. The company’s managers later gave evidence that they were unaware of that complaint before his employment ended, and the primary judge accepted that evidence.
By mid-October, all other employees had disclosed their vaccination status; Gogulwar had not. On 15 October 2021, he met with a manager and was directed to disclose his vaccination status. He did not do so.
On 19 October and again on 25 October 2021, the company issued show-cause letters. Those letters stated that, under the Victorian health orders, a worker whose vaccination record was not held was to be treated as unvaccinated, and that Gogulwar therefore could not enter the site or perform the inherent requirements of his maintenance role.
Gogulwar replied with lengthy correspondence, including a “Mandatory Vaccination Offer” sent on 23 October 2021. In it, he questioned the mandate and proposed conditions for accepting vaccination, including a signed acknowledgment from a doctor taking full legal, medical and financial responsibility for any injuries caused by vaccination. On 25 October, he emailed two medical certificates, both dated that day, covering the period 18 to 31 October 2021 and stating that he had a medical condition and would be unfit for work.
A planned meeting on 27 October 2021 did not proceed. Later that day, H.B. Fuller terminated his employment with immediate effect. The company cited his ongoing failure to follow what it described as a lawful and reasonable direction to provide vaccination information and his resulting inability to perform the inherent requirements of his role because he could not be permitted onsite. He received two weeks’ pay in lieu of notice and payment of accrued annual leave.
The Federal Circuit and Family Court had already rejected his claims under sections 340, 343, 351 and 352 of the Fair Work Act, finding that the real reasons for dismissal were his non-compliance with the vaccination-status direction and his inability to lawfully attend work, and that there were no other “actuating” reasons such as his complaints, political opinions or any disability.
On appeal, Justice Snaden upheld those findings. The court held that H.B. Fuller had rebutted the statutory presumption about reasons for adverse action by giving clear evidence from the decision-makers as to why they acted. Arguments about consultation, the operation of the public health directions and claimed exemptions did not displace the determinative finding: the company dismissed Gogulwar because he would not disclose his vaccination status and could no longer lawfully perform his onsite role.
HR takeaway for Human Resources Director – AU readers: Courts are prepared to uphold dismissals where employers can clearly show, with contemporaneous documents and decision-maker evidence, that the true reason was non-compliance with vaccination-status directions and the resulting inability to perform an onsite role, rather than retaliation for raising complaints.
