A recent decision of the Fair Work Commission (FWC) has provided some comfort to employers affected by vaccine mandates who are forced to make the difficult decision to terminate an otherwise model employee.
The decision confirms that employers who provide procedural fairness to unvaccinated employees and follow a fair termination process will not be penalised for unfair dismissal.
In Mr Ross Barry Edwards v Regal Cream Products Pty Ltd  FWC 257, the FWC upheld the dismissal of an employee who had obtained a COVID-19 vaccination exemption from a doctor who had since been suspended. The dismissal, which Commissioner O’Neill categorised as “sound, defensible, and well-founded”, occurred after the employer offered to pay for an independent medical examination, which the employee refused.
Mr Ross Edwards was employed by Regal Cream Products Pty Ltd (trading as Bulla Dairy Foods) (Bulla) as a mixed plant operator and had worked for the company for 17 years.
In October 2021, the Victorian Chief Health Officer issued the COVID-19 Mandatory Vaccination (Workers) Directions (Directions). Relevantly, the Directions required “manufacturing workers” to be vaccinated within a certain timeframe, unless a relevant medical exemption applied. The refusal or failure by an employer to comply with the Directions was an offence that carried a significant penalty.
Following the issue of the Directions, Bulla advised its employees that at the required date, non-exempted unvaccinated employees:
Bulla offered a cash incentive and offered to arrange and pay for a medical consultation for staff who were concerned about the vaccination.
Mr Edwards was one such employee concerned about the vaccination mandate. Two days before the required vaccination date, Mr Edwards provided Bulla with a medical certificate from a doctor.
However, Bulla’s HR manager found that the certificate did not meet the requirements of the Directions because:
Bulla subsequently provided a letter to Mr Edwards, advising that the certificate did not meet the requirements of the Directions. Included with the letter was a consent form to disclose Mr Edwards’ medical information to Bulla. Bulla also offered to arrange and pay for an appointment with an independent medical specialist who was eligible to provide advice regarding exemptions.
Mr Edwards refused to sign the consent form on the basis that the information was private and rejected the offer for an independent medical appointment.
Bulla subsequently suspended Mr Edwards without pay.
After being notified that he was suspended without pay, Mr Edwards requested to take long service leave so that he had more time for a more appropriate drug to become available or for the mandate to end. Bulla rejected Mr Edwards’ request on the basis that:
Mr Edwards was informed that if he did not provide evidence of a medical exemption or first dose of the vaccine, Bulla would assess his ongoing employment. Mr Edwards confirmed that he did not intend to be vaccinated and would not provide an exemption.
Bulla subsequently terminated Mr Edwards’ employment on the basis that he was legally unable to perform his duties on site, which was a requirement of his role. Bulla also terminated the employment of 12 employees in similar circumstances who were not vaccinated and did not have an exemption.
In deciding whether the dismissal of Mr Edwards was harsh, unjust or unreasonable, and therefore unfair, Commissioner O’Neill considered the factors in section 387 of the Fair Work Act 2009 (Cth).
Commissioner O’Neill accepted that Bulla was prohibited from allowing Mr Edwards to undertake work on-site from the relevant vaccination date, unless he was vaccinated or had a valid medical exemption.
Bulla’s decision to reject the long service leave request was also found to have been made on reasonable business grounds, being that Bulla could not operationally accommodate any further leave requests or absences. It was also reasonable for Bulla to consider the indications by the Victorian Government that the vaccination requirements would be in place for a significant period, despite the inherent uncertainty about this.
Concluding on this point, Commissioner O’Neill stated that Bulla permitting Mr Edwards to work after the required vaccination date would have constituted an offence and “rendered them liable for a substantial financial penalty”.
Commissioner O’Neill also considered that Bulla had taken all reasonable steps to ensure procedural fairness and had given Mr Edwards ample opportunity to respond to their concerns regarding his vaccination status.
This decision confirms the importance of following a fair termination process for employees who refuse to get vaccinated or provide a valid medical exemption.
Specific conduct that employers can take to mitigate the risk of post-dismissal claims includes the following:
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Authors: Edmund Burke & Joseph Sherman
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.