Fair Work Commission Upholds Employers’ Dismissal of Employees for Non-Compliance with Government Vaccination Mandates

Though the list of legal unknowns with respect to vaccination mandates remains quite long, two recent unfair dismissal cases provide real support for the proposition that it is not unfair to dismiss employees for their failure to comply with State Government vaccination mandates applicable directly to their employment.

The facts of these two cases, and the conclusions reached, are briefly summarised below.

Aucamp v Association for Christian Senior Citizens Homes Inc.

The applicant, Mr Aucamp, had been employed since 5 January 2016 as the Maintenance Manager at a retirement village operated by the Association for Christian Senior Citizens Homes Inc (Association). In this position, Mr Aucamp was required to provide maintenance support to the buildings and facilities, the gardens, and the common property within the retirement village.

On 4 October 2021, Mr Aucamp met with Mr Morgan, the CEO of the Association, and Ms Dennis, the COO. Aware of Mr Aucamp’s reluctance to getting vaccinated against COVID-19, Mr Morgan informed Mr Aucamp about the possibility of the Victorian Government introducing a mandatory vaccination direction that would apply to his position and which would therefore impact whether he could remain employed by the Association.

On 7 October 2021, the Victorian Government introduced the COVID-19 Mandatory Vaccination (Workers) Directions (Vaccination Directions) and this applied to Mr Aucamp’s position. On the following day, Mr Morgan sent an email to Mr Aucamp querying his vaccination status and informing him that if he chose not to get vaccinated, he would be unable to work at the retirement village. Mr Aucamp confirmed that he would not be getting vaccinated and as such, on 14 October 2021, the Association terminated Mr Aucamp’s employment.

In determining whether Mr Aucamp’s dismissal was harsh, unjust, or unreasonable, Deputy President Clancy had regard to several factors including:

• That the reason for Mr Aucamp’s dismissal stemmed from the requirements of the Vaccination Directions and not from a policy or direction of the Association;
• That to permit Mr Aucamp to continue working in his position without being vaccinated would have rendered the Association liable for significant financial penalties under the Vaccination Directions;
• That during the period leading up to Mr Aucamp’s dismissal, he was provided with warnings and notice of the reason for his dismissal, and he had an opportunity to respond; and
• That both parties were respectful and understanding of each other – the Association was aware of Mr Aucamp’s attitude towards vaccination and Mr Aucamp knew the obligations that the Association faced under the Vaccination Directions.

Accordingly, Clancy DP was satisfied that the dismissal of Mr Aucamp was not unfair.

Shepheard v Calvary Health Care

In this case, the applicant, Ms Shepheard, was employed by Calvary Retirement Communities Limited (Calvary) as a Care Service Employee. In this position, Ms Shepheard provided personal care services at St Joseph’s Retirement Community, a residential aged care facility.

On 26 August 2021, the NSW Government introduced the Public Health (COVID-19 Aged Care Facilities) Order 2021 (Public Health Order) which required, among other things, that an employee working in an aged care facility receive at least one dose of a COVID-19 vaccine by 17 September 2021. This requirement was also reflected in Calvary’s own mandatory COVID-19 vaccination policy.

In the period leading up to 17 September 2021, Calvary invited its employees to submit an exemption form if they believed that they were exempt from receiving a COVID-19 vaccine because of medical contraindications or their conscientious objection. Ms Shepheard wrote to Calvary, expressing her concerns about the legality of the Public Health Order and asserting that Calvary’s request for her vaccination status was a breach of her right to privacy. Although Ms Shepheard did not submit an exemption form, Calvary treated her complaints as a conscientious objection, and required her to show cause as to why her employment with Calvary should continue if she did not intend on getting vaccinated. In response, Ms Shepheard reiterated her same concerns regarding the legality of the Public Health Order and so forth. Accordingly, Calvary formed the view that Ms Shepheard had no intention of getting vaccinated and proceeded to terminate her employment.

In determining whether there was a valid reason for Ms Shepheard’s dismissal, Deputy President Saunders observed that the effect of the Public Health Order was that while unvaccinated, Ms Shepheard was unable to fulfil her position as a Care Service Employee. Saunders DP also observed that there were no alternative positions or duties for Ms Shepheard within any of Calvary’s aged care facilities, and that had Calvary permitted Ms Shepheard to enter the St Joseph’s Retirement Community, Calvary would have been in breach of the Public Health Order. Although Ms Shepheard contended that Calvary should have stood her down on unpaid leave until the Public Health Order concluded, Saunders DP recognised that there was no real utility for Calvary in doing this, as since Calvary had an obligation to ensure the health and safety of its employees and the residents, it was unlikely that Calvary would have changed its own vaccination policy in the foreseeable future.

For these reasons, Saunders DP determined that there was a well-founded reason to terminate Ms Shepheard’s employment, noting that:

“… Once a public health order is in force and applies to a particular workplace, the employer of employees who work in the workplace is obliged to comply with the order unless or until it is declared invalid or unlawful by a court of competent jurisdiction…The New South Wales Court of Appeal has found that the Public Health Order was not invalid.” ¹

Additionally, Saunders DP rejected Ms Shepheard’s claim that Calvary had breached the Privacy Act 1988 (Cth) and that Calvary had used pressure, coercion or intimidation against her.

Having regard to the above, and the fact that Ms Shepheard was notified of the reasons for her dismissal and was given an opportunity to respond, Saunders DP formed the view that Ms Shepheard’s dismissal was not unfair.

Key Takeaways

These decisions illustrate that in the current climate, courts and tribunals will generally be reluctant to penalise employers who act in accordance with State Government mandates, even where compliance necessitates termination of an employee’s employment. This is more likely to be the case where the employee’s non-compliance means that there is little to no work for the employee to perform for the employer. As articulated by Saunders DP:

“… It is not unfair for an employer to bring an employment relationship to an end when an employee, through no fault of the employer, has no capacity to work for the employer at the time of the dismissal and into the foreseeable future, and the employee is afforded procedural fairness before a decision is made to terminate the employment relationship.” ²

It must be remembered however that each unfair dismissal case is determined on its own set of facts, and it is equally important to remember the legal distinction between State Government vaccination mandates and mandates introduced by employers of their own volition.

If you have any questions regarding Government COVID-19 mandates, mandatory vaccination policies or employers’ rights with respect to the pandemic more generally, Addisons’ employment law team can help.