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Two new legal decisions have clarified when employers can sack a worker for going against COVID-19 rules.

The Fair Work Commission has upheld two unrelated dismissals - one an employee fired for refusing the COVID-19 jab, the other a worker who attended an anti-mandate protest.

Although, each case has unique circumstances, it has helped clear up some uncertainty around when it is lawful to dismiss an employee. We take a look at the details and explain what it means.

When does no jab mean no job?

In the matter of Floors Aucamp v Association for Christian Senior Citizens Homes Inc (U2021/9529), the Commission held that the dismissal of an unvaccinated employee was fair.  

Importantly, the employer, a retirement village, was subject to the COVID-19 Mandatory Vaccination (Workers) Directions commencing in Victoria on 7 October 2021, which required specified employers to ensure that unvaccinated workers did not work outside of their home on or after 15 October 2021, unless exemptions applied to them.

Mr Aucamp, the Maintenance Manager for the facility, told his employers he did not intent to be vaccinated and was subsequently dismissed.

The Commission emphasised:

  • It was Mr Aucamp’s capacity to lawfully perform work that was the basis for the dismissal.
  • The employer did not issue its own direction to Mr Aucamp to be vaccinated, and Mr Aucamp was not dismissed for his conduct in refusing such a direction.
  • The employer would have committed an offence by allowing him to work in breach of the Directions, and accordingly there was a valid reason for dismissal.
     

This decision provides guidance on how the Commission will assess dismissals where an employer is subject to a statutory Direction or Public Health Order. It does not necessarily provide a precedent in cases where an employer issues a mandatory vaccination direction in the absence of a statutory requirement.

The Fair Work Commission reported that, in a six-week period between September and November 2021, it received 160 unfair dismissal applications that referred to COVID-19 vaccinations. We can expect more decisions on these matters as cases proceed to hearing.

 

Fired for attending a protest

On 20 September 2021, Omar Chebbo, a mobile crane operator was sent home from work after his work site was shut down due to the Victorian Government directive that all tea rooms in construction sites be closed. Mr Chebbo left work and attended the protest against the restrictions.

The following day, Mr Chebbo was dismissed summarily and subsequently filed an unfair dismissal claim.

In Omar Chebbo v Major Crane Logistics Pty Ltd [2021] FWC 6693, the Commission held that:

  • An employee’s attendance at a protest against government restrictions in the construction industry in Victoria, was a valid reason for dismissal.

In considering whether there was a valid reason for dismissal, the Commission noted that the protest was unlawful because attendance was in breach of the stay-at-home orders in place at the time.

The Commission found that the attendance at this protest was work-related conduct as it had direct connections to Mr Chebbo’s employment, including:

  • the protest related to the construction industry and Mr Chebbo’s working conditions;
  • Mr Chebbo attended during work hours while being paid by the company; and
  • it may have appeared that Mr Chebbo’s attendance was approved by his employer.

In these circumstances, the Commission held that Mr Chebbo’s attendance at the protest created a risk to the employer’s reputation, and dismissal was a proportionate response and valid reason for dismissal. Notwithstanding this, the employee was awarded 4 weeks’ compensation because the Commission held it was harsh to dismiss the employee without notice.

This decision raises important issues concerning the debate about whether employers can regulate or discipline employees for conduct engaged in outside of work. In this case, attendance at the protest was found to be ‘work-related’ conduct. However, the Commission emphasised that not all attendances at protests would provide a valid reason for dismissal.

Whether private conduct will provide a valid reason for dismissal requires consideration of whether the conduct would seriously damage the employment relationship or the employer’s interest, or be incompatible with the employee’s duties.

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