Dismissal for vaccination delay ruled unfair

The Fair Work Commission (FWC) recently found that the Commissioner of Public Employment unfairly dismissed an unvaccinated worker as it failed to allow the worker to obtain specialist medical advice following the worker’s family member suffering a severe adverse reaction to a COVID-19 vaccine.

In Issue

Was it unreasonable to dismiss an unvaccinated employee who was intending to be vaccinated for COVID-19 but was in the process of seeking specialist health advice following a family member’s serious adverse reaction to the vaccine?
The background

Ms Gikas was employed as a math teacher for the Northern Territory Department of Education (Department) from 23 March 2020. Ms Gikas was working at Dripstone Middle School (School) and was required to physically attend campus to teach. Consequently, Ms Gikas was covered by the Northern Territory’s Chief Officer’s COVID-19 Direction (No. 55) (Public Health Order) requiring mandatory vaccinations for certain workers to attend the workplace.

Ms Gikas was therefore required to receive a first dose of an applicable COVID-19 vaccination by 13 November 2021 and a second dose by 24 December 2021. Ms Gikas fully intended to be vaccinated, and had an appointment booked on 11 November 2021. After her sister suffered a severe adverse reaction to the Pfizer vaccine on 4 November 2021, resulting in hospitalisation and persistent medical issues, Ms Gikas cancelled the appointment.

On 7 November 2021 Ms Gikas advised her line manager of her sister’s adverse reaction and confirmed that she would be seeing her GP for advice.

On 9 November 2021 Ms Gikas met with the principal of the School who approved two weeks of leave to allow Ms Gikas the opportunity to see a cardiologist.

However, before Ms Gikas was able to see a cardiologist, the Department’s Chief Executive emailed Ms Gikas advising that the Department was considering terminating her employment on the basis that she was unable to perform the inherent requirements of her role.

Despite Ms Gikas explaining the context of her unvaccinated status, she was dismissed on 26 November 2021. The Department disregarded Ms Gikas’ explanation on grounds that it did not consider her to have a pre-existing medical condition and that it would likely not meet the definition of a medical contraindication.

At all times Ms Gikas intended to receive a COVID-19 vaccination and she received her first two doses of Novavax in March and April 2022.

Ms Gikas lodged an unfair dismissal application to the Fair Work Commission, claiming that her dismissal was harsh and unreasonable in the circumstances. Ms Gikas sought reinstatement with continuity of service and back pay.

The decision at hearing

It was held by Commissioner Bernie Riordan that the dismissal in this case was unfair, stating that “[t]he decision to terminate was indefensible and lacked common sense.”

The Commissioner supported the view that it was unfair to Ms Gikas for the Department to not accept her reason for remaining unvaccinated until after her cardiologist appointment. The Commissioner also made note of the lack of communication between the Department and the School regarding Ms Gikas being placed on a period of leave to ensure that neither she nor the School would breach the Public Health Order which made her dismissal all the more harsh.

Ms Gikas was awarded reinstatement, back pay from the date of her second vaccination, and continuity of service. Reinstatement was deemed appropriate in this case as Ms Gikas was in the process of receiving her final dose and accordingly once term three commenced, she would have been fully vaccinated and able to fulfil her duties.

Implications for you

This matter demonstrates that government mandates (or lawful and reasonable policies) requiring employees to be vaccinated do not automatically give rise to a basis for dismissal where an employee is unvaccinated. Context and procedural fairness continue to be critical in effecting any disciplinary process.

A key takeaway is for employers to remain cautious when dismissing employees even where an employee has not met the requirements of any COVID-19 mandates. This matter was distinguished from other decisions of the Commission because Ms Gikas was able to demonstrate that she genuinely intended to, and subsequently did, obtain an acceptable COVID-19 vaccination and was only waiting to receive specific medical advice because of her sister’s severe adverse reaction.

As government mandates continue to be revoked, it is critical that employers intending to maintain a requirement for employees to be vaccinated, have in place a lawful and reasonable policy. In implementing such a policy, employers must comply with requirements to consult their workforce and consider the context in which the policy is intended to operate.

Source: Lexology

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