Is being an ‘anti-vaxxer’ protected under discrimination law?

In a recent unfair dismissal decision, the Fair Work Commission (Commission) considered whether identifying as an ‘anti-vaxxer’ could fall within the meaning of ‘social origin’ in section 351(1) and section 772(1)(f) of the Fair Work Act 2009 (Cth) (FW Act). Although the Commission upheld the dismissal, the Commission considered it plausible that being an ‘anti-vaxxer’ could result in a class of people having protected ‘social origin’.

Background

The employee, Ms Cook, worked for St Vincent De Paul Society (SVDP) as a Duty Manager from January 2020 to November 2021. In accordance with the Victorian government directions at the time, SVDP was required to ensure that all employees that attended the workplace were vaccinated against COVID-19. Ms Cook failed to provide SVDP with proof of vaccination and was therefore prevented from working in SVDP stores. Consequently, Ms Cook was unable to meet the inherent requirements of her job and SVDP dismissed her for this reason.

Ms Cook brought an unfair dismissal claim against SVDP, contending her dismissal was harsh, unjust or unreasonable. As part of this claim, Ms Cook asserted that SVDP dismissed her because she belonged to the social origin group known as ‘anti-vaxxers’, and for this reason the dismissal was discriminatory. SVDP denied these allegations and argued that Ms Cook had rendered herself unable to perform the inherent requirements of her role by failing to provide the government-mandated vaccine information.

Issues for the Commission

The Commission had to determine whether the dismissal was harsh, unjust or unreasonable. A key consideration was whether any unlawful discrimination occurred on the basis of ‘social origin’ because, if it had, the dismissal would be prejudiced and the reason for dismissal would not be valid. The Commission noted that arguments raised by Ms Cook were novel.

Meaning of ‘social origin’

Ms Cook advanced a submission that the unlawful ground of discrimination was her social origin as an ‘anti-vaxxer’.

The meaning of ‘social origin’ within the FW Act is somewhat broad and unsettled. The Commission supported a broader view of its definition based on international law, and found that it includes ‘class’, ‘caste’ or ‘social economic status’, as well as economic, social, cultural and human capital, which can manifest based on locality or geographic origins.

Further, giving the example of working-class stereotypes such as ‘bogan’, the Commission considered that such stereotypes would likely fall into the notion of ‘social origin’. Commissioner Johns considered that ‘social origin’ includes "dispositions of the mind and body" and ways of thinking. The Commission held it was plausible that being an ‘anti-vaxxer’ is a “disposition of the mind” and a form of cultural capital resulting in a class of people that would fall within the concept of social origin.

 Was the dismissal unfair?

The FWC held that SVDP had a valid reason to terminate Ms Cook’s employment. Namely, SVDP was bound by the terms of the government directions and was required to ensure that Ms Cook did not attend the workplace unvaccinated. A consequence of Ms Cook’s inability to attend the workplace was her failure to meet the inherent requirements of her role.

Ultimately, Ms Cook’s submissions fell short as it was determined that no discrimination took place against Ms Cook and there was no other factor that rendered the dismissal was harsh, unjust or unreasonable.

It was held that the dismissal did not constitute direct discrimination as Ms Cook was terminated because she could not attend the workplace, rather than due to her views against vaccination. The Commission did consider that this outcome could possibly be indirect discrimination, which occurs where “there is an unreasonable rule or policy that is the same for everyone that has an unfair effect on people who share a particular attribute”. However, the Commission found that both the government directions and SVDP’s actions in complying with the government directions were entirely reasonable. As such, unlawful discrimination had not occurred and there remained a valid reason for Ms Cook’s dismissal.

Ms Cook’s application was dismissed.

Key takeaways

• This decision explores the possibility that social origin may be expanded beyond economic class to include other groups such as ‘anti-vaxxers’.
• Employers should be mindful that a decision to dismiss an employee who identifies as an ‘anti-vaxxer’ must still be reasonable and grounded in a valid reason.
• Although the general protections provisions are separated from the unfair dismissal jurisdiction, principles of discrimination can still effect whether a dismissal is fair and whether the reason given is valid.
• It remains to be seen whether this case will expand the meaning of ‘social origin’ and whether the Commission or a court would affirm this position.

If you have any queries about this decision and how it may affect your business, please contact us below or get in touch with our team here.

Authors: Jennifer van Bronswijk, Michael Hope & Julia Wyatt

Disclaimer
The information in this article 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.

Published by:

Jennifer van Bronswijk

Michael Hope, Julia Wyatt

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