No Compensation for Unfairly Dismissed Anti-Vaxxer

In the current climate surrounding Covid-19, employers have sought to comply with ever changing health directions, and to safeguard their workplaces, by enacting vaccination policies and requirements. Where some employees have failed to comply with the health directions or vaccine requirements, employers have been placed in the difficult position of having to dismiss non-vaccinated employees.

In an important reminder for employers to engage in a procedurally fair dismissal process, the Fair Work Commission recently held an employee refusing to be vaccinated against Covid-19 was unfairly dismissed. Significantly, however, the employee was not awarded any compensation.

Unfair dismissals generally

In general, if an employer wishes to dismiss an employee, there needs to be a valid reason for the dismissal (relating to either the employee’s capacity or conduct) and the employer needs to undertake a procedurally fair process in dismissing the employee. A procedurally fair process is one in which:

1. advises an employee of the reason why they may be dismissed, prior to their dismissal; and
2. provides the employee an opportunity to respond to this reason (or an opportunity to improve, if the reason relates to performance).

Whilst not relevant to the present case, the Commission will also consider other factors such as whether the employee was unreasonably refused a support person, whether the employee was warned (if the matter relates to performance), the size of the employer’s business, whether the employer had a human resources specialist, and any other matter the Commission views is relevant.

If the Commission finds a person was not afforded procedural fairness in their dismissal, then the dismissal may be held harsh, unjust, or unreasonable.

The Decision

Within Inwood v Baxter & Co Pty Ltd [2022] FWC 792, Baxter & Co operated a footwear retail store in New South Wales, and, like all NSW businesses, became subject to health orders which prohibited unvaccinated persons from entering their business. Ms Inwood took a stance that she would not be receiving the vaccine, and as such, was not permitted to attend the workplace.

During a period of lockdown, Baxter & Co checked in with Ms Inwood to see if she would be receiving a vaccination, to which Ms Inwood responded by questioning the effectiveness of the vaccine and sending a template letter:

• referencing ‘compliance with the Nuremberg Code’;
• requesting to be advised of the full contents of the vaccine; and
• requesting to be advised of the scientific testing the vaccine had been through and the outcomes of such testing.

Baxter & Co responded to Ms Inwood asserting they were only complying with health orders, however, Ms Inwood did not accept this. Ms Inwood, to Baxter & Co’s apparent frustration, continued to question the vaccine and sent a myriad of requests. Baxter & Co decided to terminate Ms Inwood’s employment immediately “because of the risk of you not being vaccinated”.

The Commission found that there were valid reasons to dismiss Ms Inwood – given her refusal to be vaccinated, and her communications. However, the Commission held Ms Inwood’s dismissal was harsh, unjust, or unreasonable because, while Ms Inwood was on notice that the public health order required her to be vaccinated, she had not been advised that her failure to be vaccinated may result in her dismissal.

Accordingly, Ms Inwood’s dismissal was harsh because she had not been advised of the reason for her dismissal prior to her dismissal, and incidentally, she had not been provided an opportunity to respond to the reason for her dismissal.

Noting that, had Baxter & Co afforded Ms Inwood these opportunities, her dismissal would have only been delayed by a few days, Ms Inwood was not awarded any compensation.

Key takeaways for employers

This case acts as a reminder for employers that, while government mandates may oblige them to impose certain requirements on their workplaces, employees still need to be put through a proper process prior to disciplinary action being taken. Employers need to ensure that employees are properly made aware that their employment is at risk and are afforded an opportunity to respond to or remedy the issue.

It is always recommended that employers seek appropriate advice prior to taking disciplinary action against an employee. NRA Legal is a full-service employment law firm serving the needs of employers and available to provide advice should you require. Do not hesitate to contact us on 1800 572 679.