Can I terminate an employee for refusing to be vaccinated?

In the recent decision of Floors Aucamp v Association for Christian Senior Citizens Homes Inc [2021] 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.

Facts

• Mr Aucamp was employed full time as the Maintenance Manager at the Association for Christian Senior Citizens Homes Inc.’s (Association) Ebenezer retirement village.
• On 4 October 2021, a meeting took place between Mr Aucamp, Mr Morgan (CEO) and Ms Dennis (COO). A discussion was had about the foreshadowed directions from the Victorian Government regarding mandatory vaccination against COVID-19.  It was conveyed to Mr Aucamp that the directions would be coming within days and that such directions would likely extend to Mr Aucamp’s employment.
• Due to previous conversations, Mr Morgan and Ms Dennis were aware of Mr Aucamp’s stance on vaccinations. The meeting was held to discuss with Mr Aucamp the potential consequences for himself and his future employment should he elect not to get vaccinated.  At this time, Mr Aucamp had not made a firm decision as to whether or not he would get vaccinated.
• Subsequently the COVID-19 Mandatory Vaccination (Workers) Directions (Vaccination Directions) commenced on 7 October 2021, requiring employers to ensure unvaccinated workers did not work outside of their ordinary place of residence on or after 15 October 2021. The only exception to this requirement was if a worker had a booking to receive a dose of COVID-19 vaccine by 22 October 2021, or if the employee was an “excepted person”.
• On 8 October 2021, Mr Morgan wrote to Mr Aucamp who was on leave at the time. Due to the short deadlines within the Vaccination Directions, Mr Morgan was enquiring as to whether Mr Morgan was deciding to get vaccinated or not, so that other arrangements could be made to cover his responsibilities if required. Mr Morgan also attached a copy of the Vaccination Directions.
• On 11 October 2021, Mr Aucamp responded stating that he would not be taking the vaccine. Mr Aucamp enquired if he would be let go, and if so, whether he would be paid his leave and payment in lieu of notice.
• On 14 October 2021, Mr Aucamp was provided with a letter advising that his employment was terminated effective at the close of business that day based on the Vaccination Directions. Mr Aucamp was to be paid all wages up until 14 October 2021, his accrued leave entitlements and an ex-gratia payment for one day of wages due to a sick certificate extending to 15 October 2021. Mr Aucamp was informed that payment in lieu of notice did not apply in this situation however they were willing to pay Mr Aucamp an additional 3 weeks’ pay.

Issues

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.

Decision

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.

Lessons for employers

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:

1. consider whether your business and employees are subject to any vaccination mandates as set by the Victorian Government’s Pandemic Orders (including any amendments or updates to the Pandemic Orders);
2. if a Pandemic Order applies to your business, inform your employees of the requirements set out under the Pandemic Order and confirm compliance with the Order (in addition to any other obligations imposed on the business as an employer);
3. if an employee refuses to comply with a Pandemic Order, consider:
   1. the reason for the employee’s refusal, for example, is the employee an “excepted person” within the meaning of the Pandemic Order;
   2. whether the business can accommodate the employee undertaking alternative duties which does not place the business in a position that it is in contravention of the Pandemic Order;
4. advise employees of the likely consequences of failing to comply with the Pandemic Orders, including that it may result in termination and ensure procedural fairness is afforded to employees.