Is refusing to be vaccinated under a Public Health Direction a ground for dismissal?

Yes –but dismissal must not be harsh, unjust or unreasonable.

A recent Fair Work Commission (FWC) decision (Floors Aucamp v Association for Christian Senior Citizens Homes Inc. [2021] FWC 6669 (22 December 2021)) confirms that an employee’s non-compliance to a Public Health Direction to be vaccinated constituted an incapacity to perform his work and was a valid reason for dismissal. The FWC also considered that the employer was not responsible for implementing a government mandate and would otherwise have been liable for a financial penalty for allowing an unvaccinated employee to continue working. Ultimately, the dismissal wasfairas the employee was previously made aware of the possibility of termination and was provided with an opportunity to ‘change his mind’.

Valid dismissal for employee who refused vaccination

Provided you are covered by a Public Health Direction to mandate vaccination at the workplace and have followed the appropriate process, dismissing an employee for a failure to comply with a government direction will likely below risk.

Low-risk approach to dismissing

Although this provides some relief for employers, it is not a ‘blanket’ application and will be determined by the individual circumstances. Before terminating for non-compliance with a Public Health Direction, you should ensure that you follow the proper process and mitigate the risks by:

1. ensuring that you are covered by a Public Health Direction to mandate vaccination;

2. informing your employee that there is a Public Health Direction to comply;

3. ascertaining the employee’s reasons for the refusal;

4. cautioning that non-compliance may result in termination;

5. allowing the employee time and opportunity to reconsider his/her position and to respond; and

6. keeping clear evidence that the employee is refusing to comply.

To assist our retainer clients, we have provided template letters that can be used to implement the appropriate process when terminating a non-compliant employee.