Risk of employer penalties for an employee not following a vaccination mandate provides a valid reason for termination
In the recent decision of Floors Aucamp v Association for Christian Senior Citizens Homes Inc [2021] FWC 6669, the Fair Work Commission (the Commission) held that there was a valid reason for the dismissal of an employee that refused to be vaccinated in accordance with a Government-issued vaccination mandate. Importantly, Commission held that if the employee, Mr Aucamp, was to continue employment with the Association for Christian Senior Citizens Homes Inc (the Association), this would have constituted an offence against the mandate, and the Association may be subject to financial penalties.
Facts
Mr Aucamp commenced employment with the Association on 5 January 2016 in the role of a full-time maintenance manager at Ebenezer Retirement Village. Within his role, Mr Aucamp’s responsibility was to provide maintenance support to residents which extended to buildings and facilities, the gardens and the common property.
On 4 October 2021, a meeting took place between Mr Aucamp and two representatives from the Association to discuss the directions that had been foreshadowed by the Victorian Government regarding mandatory vaccination against COVID-19. At the time it was believed that those directions would come into operation on 7 or 8 October 2021. Mr Aucamp was informed that the Association believed his work would fall under the mandatory vaccination direction. The Association was aware of Mr Aucamp’s stance on vaccination, being that he did not intend to get vaccinated against COVID-19, due to previous discussions.
Mr Aucamp agreed to the possibility that should he choose not to be vaccinated, he may no longer be employed by the Association.
The COVID-19 Mandatory Vaccination (Workers) Directions (Vaccination Direction) made by the Acting Chief Health Officer of Victoria commenced on 7 October 2021. The Association determined that the Vaccination Direction applied to Mr Aucamp as he was considered a ‘repair and maintenance worker’. Accordingly, the Association was obliged to ensure that unvaccinated workers did not work outside of the worker’s ordinary place of residence on or after 15 October 2021.
After various communications between the Association’s officers and Mr Aucamp, it became apart from Mr Aucamp was not willing to get vaccinated against COVID-19. The Association proceeded to terminate Mr Aucamp’s employment on 14 October 2021 on the basis that the Association could not lawfully permit Mr Aucamp to enter its premises and therefore, he was unable to perform his role.
Following the termination of his employment, Mr Aucamp filed an unfair dismissal application against the Association pursuant to section 394 of the Fair Work Act 2009 (Cth).
Decision
The Commission agreed that Mr Aucamp’s employment fell under the definition of a ‘repair and maintenance worker’ pursuant to the Vaccination Direction.. The manner in which the Vaccination Direction is framed was that it placed obligations on employers to take all reasonable steps to ensure that its workers who were not vaccinated did not work for it outside their ordinary place of residence. Therefore, while Mr Aucamp was never directed to receive a COVID-19 vaccine by the Association, he was invited to advise the Association whether he would get vaccinated or not. It was noted by the Commission that a refusal or failure by the Association to comply with a direction or requirement under the Vaccination Direction is an offence which attracted significant penalties.
Ultimately, the Commission held that Mr Aucamp’s decision to remain unvaccinated, which in term rendered him incapable of performing the work he had been employed to do, constituted a valid reason for his dismissal. The Commission was satisfied that the Association afforded Mr Aucamps procedural fairness through the disciplinary process and that his dismissal was not harsh, unjust or unreasonable.
Take Home Message
This decision appears to be the first (of now many) that sets a precedent that an employee choosing not to be vaccinated against COVID-19 in accordance with a Government-issued mandate, will constitute a valid reason for termination.
Employers should be aware of any COVID-19 vaccination requirements which apply to their staff that are put in place by respective State Governments, including any amendments to those requirements which may occur from time to time. When implementing Government-issued vaccination directions upon staff, employers should provide clear information about the requirements and exemption processes, and in the case of non-compliant employees, ensure that procedural fairness and natural justice are afforded in any disciplinary processes.
Should you have any queries in relation to this article, or should you wish to access a face mask policy, please contact Sathish Dasan on +61 8 8210 1253 or sdasan@normans.com.au, Ganesh Krishnan on +61 8 8217 1395 or gkrishnan@normans.com.au or Anastasia Gravas on +61 8 8217 1331 or agravas@normans.com.au.
