In January 2022, an employer, Maicap Unit Trust t/a Nocelle Foods (the Employer) dismissed a long-standing employee, two days after it had suspended the employee for failing to offer proof of her first vaccination.
The former employee, who commenced employment with the Employer in 2005, made a claim against the Employer arguing that she had been unfairly dismissed as she was prepared to receive the Novavax vaccine upon approval by the Therapeutic Goods Administration (TGA), which occurred eight days after her dismissal.
The Fair Work Commission found that there was at least a ‘distinct possibility’ that the employee would have received her first vaccination upon approval by the TGA, and Commissioner Hampton noted the fact that the Employer had offered another employee extended leave while he awaited the approval of the same vaccine but did not extend the same courtesy to this employee.
The Commission found that the Employer failed to consider all the options available to the employee (other than dismissal), including access to her entitlements such as: 1135 hours of sick leave, 9 weeks’ annual leave and nearly 20 weeks’ long service leave.
While Commissioner Hampton held that the Employer had a valid reason for dismissal, and that its vaccination policy was lawful and reasonable, he concluded that the dismissal was unfair given the timing of the application of the workplace policy, and the Novavax vaccine availability being ‘a real prospect’ prior to the time of dismissal.
The Employer was ordered to pay the employee compensation of $3,462.00 plus superannuation.
This case provides a timely reminder to employers that just because there may be a valid reason to terminate an employee, and even if workplace policies are found to be lawful and reasonable, it is possible that the Commission may find that a dismissal is unfair, when considering the entire process adopted by an employer and the circumstances that existed at the time of the dismissal.
It is best to seek legal advice before any steps are taken to dismiss an employee’s employment, particularly when it comes to requirements specified in workplace policies.
For more information or to discuss how we may be able to assist you, contact our employment law team on (08) 9305 9529 or email at natalie@lotus-legal.com.au.
