In determining a dismissal without notice was not unfair, the Fair Work Commission (Commission) has ruled that an employee’s refusal to be vaccinated against COVID-19 can amount to wilful misconduct and therefore a valid reason for dismissal in circumstances where an employer’s mandatory vaccination policy was implemented after consultation and is reasonable.
This case demonstrates that consultation on any safety-related workplace policy is key. It also shows that where a policy is objectively ‘reasonable’, employers can have comfort that it will be enforceable in the workplace.
Background and context
Matthew Colwell was employed by Wellways Australia which is a disability services provider.
Mr Colwell’s role was to match service providers with the requirements of Wellways’s clients. At all relevant times he was working from home in line with the Victorian Government’s preference that employees who could work from home, should work from home.
In October 2021, Wellways put in place a policy requiring all employees to receive their first dose of a COVID-19 vaccine by 31 December 2021. Importantly, this policy applied to all employees, even those who were not covered by a Public Health Order requiring vaccination.
Mr Colwell refused to be vaccinated and was subsequently dismissed in January 2022.
Mr Colwell applied to the Commission for an unfair dismissal remedy arguing that:
- the vaccination policy was implemented without proper consultation with staff; and
- he had been working from home for two years and could continue to do so.
Consultation was key
Commissioner Bissett heard evidence of the steps taken to consult on the implementation of the policy. There was evidence that in early October 2021, Wellways’s Board approved a proposal for a mandatory COVID-19 vaccination policy. This was followed by a draft policy being developed by its People & Culture department in consultation with its general counsel and national WHS advisor. Information regarding the draft policy was provided to managers so it could be disseminated to staff and their questions could be answered. The WHS advisor consulted with employee Health and Safety representatives where feedback was sought for consideration by the employer. The unions were also consulted by Wellways.
Given the above, the Commissioner was satisfied that Wellways had consulted staff on the policy. She was also satisfied that its implementation was reasonable due to the vulnerable nature of its clients. As such, due to Mr Colwell’s employment contract requiring him to comply with Wellways’s policies, she found that the direction to be vaccinated was a lawful and reasonable direction, and that his refusal to comply constituted a valid reason for dismissal.
Could the employee continue to work from home?
The Commissioner also found that the fact that Mr Colwell could work from home did not make the dismissal unfair. She observed that employers have a managerial prerogative in determining how their businesses operates, and “to the extent it is a reasonable direction, the [employee] can be directed to return to the office or work in a particular office location”. This was supported by the fact nothing in Mr Colwell’s employment contract that stated his place of employment being his home.
Was termination premature?
The Commissioner observed that Mr Colwell’s termination may have been premature because employees had not been directed to return to their respective offices (which would be unlikely to occur prior to 11 February 2022 when employees were required to have their second dose). This was balanced against Mr Colwell’s “very clear indication” that he would not be complying with the policy. Mr Colwell had sent emails which stated, “I have no intention of receiving a COVID vaccine before 31 December regardless of what policies Wellways feels they have the right to impose on people” and provided a “COVID-19 Vaccine Declination Form” saying “I hereby decline and refuse the COVID-19 vaccine”. As such, it was accepted that Mr Colwell was not going to comply with the policy.
The Commissioner concluded that, despite not being given notice, his dismissal was not harsh in the circumstances because:
- his refusals made it clear that he was wilfully not going to comply with the policy;
- it was made clear to him as early as December 2021 (and possibly earlier) that termination of his employment was a possibility if he didn’t get vaccinated;
- he pushed Wellways to start the show cause process as early as possible because his decision was final;
- he demanded that Wellways make a decision the day after the show cause meeting; and
- Wellways allowed employees who weren’t vaccinated, but had dates for vaccination, to remain employed.
Employers who intend to implement a policy of mandatory vaccinations need to ensure employees are consulted prior to its implementation. Whilst the Commissioner was satisfied with the consultation process in this matter, it was identified that there were further steps that the employer could have taken.
The reason for the policy needs to be reasonable. In this case the vulnerable nature of the employer’s clientele met that standard. Employers will need to consider the health and safety aspects of their workplaces, and relevant duties, in determining whether such a policy is reasonable.
Additionally, the attitude of the employee and how they conduct themselves throughout the dismissal process, will be considered in determining whether the dismissal is unfair. In this case, the employee was bluntly against being vaccinated. However, there can be situations where an employee’s reason for not wanting to be vaccinated can be reasonable and/or requires further investigation.
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Published: 15 June 2022