In the recent Fair Work Commission decision of Eileen Owens v I‑Med Radiology Ltd [2022] FWC 1823, an interlocutory judgment considering whether an unfair dismissal application had been filed within the required 21 days, Deputy President Asbury surveyed recent cases dealing with mandatory workplace COVID-19 vaccination and very helpfully set out principles emerging from those decisions relevant to a requirement for employees to be vaccinated in workplaces which are subject to government directives.
The principles, many of which put paid to some of the esoteric arguments run by, or on behalf of, those who maintain a fundamental philosophical objection to COVID-19 vaccination, are as follows (reproduced verbatim — at paragraph 46 of the judgment):
1. The Fair Work Commission is not a Court and has no power to make a binding declaration about the validity of State or federal legislation including health directives or orders made pursuant to State legislation.
2. At the time of the Applicant’s dismissal and to date, Australian Courts have upheld the validity of directives/mandates and public health orders issued by State Governments in response to the COVID – 19 Pandemic including requirements that workers in particular settings are vaccinated.
3. The argument that directives/mandates and public health orders issued by State Governments are inconsistent with federal law and are invalid because of s.109 of the Constitution has been rejected by Australian Courts.
4. At the point the Applicant was dismissed, she was subject to the requirements of a Public Health Order issued by the Queensland Government and the Respondent was prohibited by law from allowing her to attend the workplace unless she provided evidence of vaccination.
5. A requirement that the Applicant comply with the Public Health Order by receiving a vaccine, to continue to work for an employer, does not involve coercion or forcing the Applicant to participate in a medical trial.
6. Incentives to encourage employees to be vaccinated are not coercion.
7. The Applicant is entitled to her views about vaccination and to refuse to be vaccinated, but that is a choice and to decline to be vaccinated or provide proof of vaccination pursuant to legal requirements for entry to a workplace, will result in the employee being legally excluded from the workplace.
8. While the choice may be difficult, it is nevertheless a choice.
9. COVID – 19 Vaccinations are approved for use in Australia pursuant to Commonwealth legislation and employers are not required to prove their safety or efficacy to employees or to the Fair Work Commission in the event of a dispute with an employee.
10. Employers are not required to lobby Governments to have directives revoked or amended before dismissing employees for non-compliance.
Some employers are still receiving bizarre letters from employees who decline to be vaccinated, often following a template provided by individuals or groups active in either the anti-vaccination or “sovereign citizen” movements. The principles above, which bust many of the legal myths espoused in such correspondence, offer a useful guide for employers needing to respond.
