In the recent decision of Floors Aucamp v Association for Christian Senior Citizens Homes Inc  FWC 6669, the Fair Work Commission (FWC) dismissed an application for unfair dismissal arising from the termination of an employee electing not to receive a COVID-19 vaccine. Ultimately, the Fair Work Commission held that the dismissal of the employee was fair.
The Fair Work Commission considered the relevant sections of the Fair Work Act 2009 (the Act) in its findings.
It was not in dispute that Mr Aucamp had been dismissed. This was not a case of genuine redundancy or a matter involving a small business. Therefore, the FWC had to consider the criteria in section 387 of the Act to determine if the dismissal was harsh, unjust or unreasonable.
Was there a valid reason for dismissal relating to Mr Aucamp’s capacity or conduct?
It was not in dispute that the Vaccination Directions applied to Mr Aucamp. He was worker falling within the definition of a “repair and maintenance worker”. It was not contended that Mr Aucamp was an excepted person or that he had an exemption by having a booking to receive his first dose of COVID-19 vaccine by 22 October 2021.
The Association was required to ensure all of its workers who were not vaccinated did not work for it outside their ordinary place of residence from 15 October 2021.
At no stage did the Association issue a direction to Mr Aucamp requiring him to become vaccinated. Mr Aucamp clearly stated on 11 October 2021 that he would not be getting vaccinated. The Association was entitled to conclude that Mr Aucamp was and would remain unvaccinated. To then have permitted Mr Aucamp to work for it would have constituted an offence.
It was clear that Mr Aucamp’s dismissal was for a reason related to his capacity rather than his conduct. Accordingly, there was a valid reason for Mr Aucamp’s dismissal related to his capacity to perform the work he had been employed to do.
Was Mr Aucamp notified of the reason and given an opportunity to respond?
On 4 October 2021 a discussion was held regarding the possibility of Mr Aucamp being unable to remain employed with the Association if he chose not to get vaccinated.
By providing Mr Aucamp with the Vaccination Directions on 8 October 2021 and the accompanying email, the FWC was satisfied that the Association had provided Mr Aucamp with notification that if he chose not to get vaccinated, he would not be able to work. The FWC was also satisfied that the email indicated that Mr Aucamp had an opportunity to respond, which he took up in replying to the email on 11 October 2021. Mr Aucamp’s response indicated that he was alive to the possibility of his employment being terminated.
Other relevant matters?
Despite Mr Aucamp’s belief that the Vaccination Directions are illegal he acknowledged that the Association was obligated to take steps to comply with them. Mr Aucamp submitted that he had been a good performer of his job and that he should have been paid 5 weeks in lieu of notice.
The Association said it did not consider the failure of Mr Aucamp to get vaccinated as misconduct, rather it had no discretion when it came to the Vaccination Directions. Further, it had no capacity to provide extra notice of the dismissal because with only one weeks’ notice, it was subject to the Vaccination Directions.
The FWC held that Mr Aucamp’s dismissal was not harsh, just or unreasonable. Accordingly, the dismissal was not unfair and Mr Aucamp’s application for unfair dismissal was dismissed.
Although the dismissal was fair in this instance, employers need to be careful when terminating an employee for failing to comply with a Government directive:
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