When is it valid to dismiss an unvaccinated employee who can work from home?

When ‘indoor’ employees refuse to comply with a COVID-19 vaccination policy or mandate, it may be argued that their employment should not be terminated because they can adequately perform their role from home. In the case of Raymond Pham v State of Victoria [2022] FWC 2147, the Fair Work Commission (FWC) held that even though the Applicant, Mr Pham, could undertake many (but not all) of his duties from home, doing so on a permanent basis would not be ‘optimal.’ As a result, the FWC found that there was a valid reason for termination and that his dismissal was not unfair.

Facts

Mr Pham was employed as an Advanced Child Protection Practitioner (ACPP) by the State of Victoria’s Department of Families, Fairness and Housing (the Department). At the time of his dismissal, Mr Pham worked as an intake worker, which required him to receive reports of protective concerns about children from the public and conduct initial risk assessments. Reports were usually made by telephone but could also be made in person or in writing.

Under the COVID-19 Mandatory Vaccination (Workers) Directions (Directions) issued by the Victorian Chief Health Officer, the Department was not permitted to allow employees who were not vaccinated against COVID-19 to enter their premises from 15 October 2021. Accordingly, on 20 October 2021, the Department emailed Mr Pham and advised that he had been identified as a staff member who was required to work outside of his home and was therefore subject to the Directions. Mr Pham was advised that failure to provide evidence of a first dose of a COVID-19 vaccination by 22 October 2021 may have significant impacts on his employment including possible termination of his employment. However, Mr Pham did not wish to be vaccinated against COVID-19. Mr Pham disagreed that he was required to work outside of his home and maintained he could perform his role from home.

On 16 November 2021, Mr Pham was issued a show cause letter which set out that, due to his failure to comply with the Directions, the Department was considering terminating his employment on the basis that he could not perform the inherent requirements of his role. After considering Mr Pham’s written and verbal response to the show cause letter, the Department terminated his employment on 15 February 2022 and paid him 4 weeks’ notice in lieu of service. Mr Pham subsequently commenced an unfair dismissal application in the FWC.

Decision

The key issue in this case was whether there was a valid reason to terminate Mr Pham’s employment.

Mr Pham submitted that there was no valid reason to terminate his employment as he could have continued to work from home. Mr Pham submitted that ACPPs are not required to have physical contact with clients as reports are generally received by telephone. Mr Pham noted that ACPPs had regularly been working remotely during the pandemic.

The Department’s response was that attending the workplace physically was an inherent requirement of the role, as there were aspects which could not be performed to an optimal standard from home. While it had been possible for some ACPPs to work remotely during lockdowns out of necessity, such an approach was not feasible in the medium to long term future as it would result in suboptimal outcomes for employees and the vulnerable children the Department sought to protect. The Department maintained that work could be better completed in the office where staff can consult with managers, train other staff, and monitor each other’s mental health and wellbeing in light of the difficult work they undertake. In addition, ACPPs were from time to time required to take in-person reports from the public. The Department noted that for these reasons, no ACPPs worked from home permanently; they were still required to attend the office at least some of the time.

The FWC held that there was a valid reason for Mr Pham’s termination. The FWC held it was not relevant that most of Mr Pham’s duties could be undertaken at home because it was ultimately up to the Department to determine where Mr Pham would work and the circumstances in which he could work from home. Further, while the Department had considered whether to allow Mr Pham to continue to work from home on an ongoing basis, it was reasonable for the Department to conclude he could not, because his role required him to undertake in-person supervision and mentoring, take in-person reports, and have his mental health and wellbeing supervised by other staff, none of which could be adequately achieved remotely.

The FWC noted that while there was a valid reason for termination, there were factors which pointed towards the dismissal being unfair, including the length of Mr Pham’s service, his performance throughout his employment and that he was the sole carer of his children. However, overall, as Mr Pham was unable to fulfil the inherent requirements of his role without complying with the Direction, the FWC was satisfied that Mr Pham’s dismissal was not unfair.

Take Home Messages

This is yet another case in which the FWC has confirmed that there is a valid reason to terminate employees who cannot comply with the inherent requirements of their role if they are not vaccinated against COVID-19. Even though certain duties of a role may be able to be performed from home, employers are entitled to consider whether the role can be performed optimally at home. In many cases, employees will be missing out on critical interactions with fellow staff when they do not attend the workplace.

For more specific information on any of the material contained in this article please contact Sathish Dasan on +61 8 8210 1253 or sdasan@normans.com.au, Anastasia Gravas on +61 8 8217 1331 or agravas@normans.com.au or Annabelle Narayan on + 61 8 8210 1292 or anarayan@normans.com.au.