Court Support for Employers Enforcing Vaccine Mandates

In late 2021, many Public Health Directions requiring vaccination for certain workers and industries came into effect. In the New Year, many employers have been forced to deal with a small number of employees who have refused to comply with the vaccine direction.

In circumstances where leave or reasonable accommodations to allow an employee to continue working in a setting that does not require vaccination is unavailable, disciplinary action ending in dismissal is likely the last option left for employers.

These dismissals have led to challenges in the Fair Work Commission and Federal Court, mainly on the basis that the dismissals were harsh, unjust or unreasonable.

Although we are only beginning to see these challenges brought before courts and tribunals, the early indications are that employers will be supported so long as they’ve engaged with their workforce through proper consultation.  

QANTAS

The Federal Court recently dismissed an urgent application to prevent QANTAS from dismissing 24 employees, who failed to meet the company’s November vaccination deadline.

While an Unfair Dismissal application brought by the workers will be fought out later this year, the Court refused an early bid to stop the dismissals, noting that the airline had consulted with its workers and their WHS and union representatives through:

• providing a vaccination survey;

• sharing the results of the survey; and

• proposing a draft vaccination policy

in advance of the policy’s implementation.

Although QANTAS are supported in their vaccine policy through a Public Health Direction (PHD) mandating vaccination, we expect that courts and tribunals will extend their support to employers who implement a vaccination policy based on an internal risk assessment (without a PHD). Critically, the support will likely depend upon whether an employer has adequately consulted with their workforce.

Late last year, the Full Bench of the Fair Work Commission in the Mt Arthur Coal Mine dispute expressed their general support for employers using mandatory vaccination policies as a necessary control measure against the risks of COVID-19 in the workplace. However, this support will only be provided where proper consultation processes are followed.

Stay Tuned

As employees who refuse to vaccinate in line with a PHD or workplace policy are dismissed, their legal challenges will continue to be heard by courts and tribunals. Although the types of arguments relied upon by these employees are struggling to gain traction, it is a constantly changing area.

We will update you as soon as more and more of these arguments are considered.

Edge Legal

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