Australia, Fair Work Commission, Tasmania, 27 January 2023, Sommerville v University of Tasmania FWCFB 19
Case overview
Country
Case ID
Decision date
Deciding body (English)
Type of body
Instance
Area
Further areas addressed
Outcome of the decision
Link to the full text of the decision
General Summary
The Applicant’s employment with the University of Tasmania was terminated due to her refusal to comply with the employer’s COVID-19 Safety Policy, which required the Applicant to be vaccinated against COVID-19. The Applicant had refused to be vaccinated owing to her belief that the vaccine was unsafe.
The Applicant applied to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 claiming that she had been subject to an unfair dismissal. The Applicant sought to be reinstated to her role. The Applicant argued that the dismissal was unfair for various reasons, including that it was discriminatory and unreasonable. The Application was dismissed at first instance. The Commission found that her dismissal was not unfair, as it was not ‘harsh, unjust or unreasonable’. This was because the dismissal was a result of the Applicant’s failing to follow what the Commission found to be a lawful and reasonable direction. The appeal was also dismissed.
Facts of the case
The Application was an Operations Manager in a research unit within the University. In October 2021 the Tasmanian Government declared the State would be opening its borders on 15 December. In response, the University of Tasmania established a COVID-19 vaccination policy, requiring staff who could not work remotely, and who were not otherwise exempt, to be vaccinated against COVID-19. This direction followed consultation with university staff and students in the form of a survey. The Applicant communicated her refusal to be vaccinated to the University. After several months of consultation and correspondence, the Applicant’s employment was terminated in February 2022.
The Appeal did not find that the Applicant identified any discernible errors of fact in the original decision and dismissed the Application to Appeal.
Type of measure challenged
Measures, actions, remedies claimed
Individual / collective enforcement
Nature of the parties
Claimant(s)
Private individualDefendant(s)
Private collective
Type of procedure
Reasoning of the deciding body
At first instance the Commission considered whether the Direction provided by the University for their staff to be vaccinated was a lawful and reasonable direction. If it was an unlawful or unreasonable direction, it would be an unfair dismissal. The Commission noted that in CFMMEU v Mt Arthur Coal Pty Ltd, the Full Bench of the Commission held that the duty to follow lawful and reasonable direction is implied into all contracts of employment, including the Applicant’s. Moreover, the Applicant had an express contractual obligation to comply with the University’s policy.
The Commission rejected the Applicant’s arguments that the Direction was unlawful on various grounds, including constitutional invalidity and workplace health and safety law. The Commission rejected the Applicant’s claim that her dismissal was unlawful discrimination, finding that discrimination laws “do not operate on discrimination at large, such as ‘vaccinated versus unvaccinated’”. The Commission found that the instruction was lawful as it was “aimed at improving overall health and safety” and involved a lawful product.
The Commission then found that the Direction was reasonable for several reasons. It was based on medical evidence that vaccines were safe and effective. The Commission found that the University had conducted sufficient consultation about the policy with university staff and students before its implementation. Further, the Applicant’s role could not be performed remotely.
The Commission then had to consider whether the dismissal was ‘harsh, unjust or unreasonable’. To decide this, it had to consider whether there was a valid reason for the dismissal. Failure to comply with a lawful and reasonable direction was considered a valid reason. Further, the Applicant was notified of this valid reason, and given sufficient opportunity to respond. Therefore, the dismissal was not harsh, unjust or unreasonable.
At the Appeal, the Applicant sought to introduce new evidence. The Commission outlined the three conditions that need to be satisfied in order to accept new evidence on appeal as outlined in Atkins v National Australia Bank. These conditions required establishing that the evidence could not have been obtained at the time of the original hearing. Secondly, it required that the evidence be of high probative value resulting in a different result at first instance and finally that the evidence is credible. The Commission found that the evidence produced was neither highly probative nor would have produced a different outcome at first instance.
Conclusions of the deciding body
The Application was dismissed at first instance and the Appeal was dismissed.
Fundamental Right(s) involved
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
General principle applied
- Due process
- Reasonableness
Balancing techniques and principles (proportionality, reasonableness, others)
The Commission had to determine if the dismissal was unfair and as part of this consideration, had to determine if the Direction made by the University was lawful and reasonable. In considering reasonableness, the Commission’s discussion focused on consultation and whether the University adequately consulted with its staff prior to imposing the Direction or vaccination mandate. The Commission also balanced their consideration of the reasonable nature of the University’s actions with the broader national circumstances. The Commission acknowledged that in late 2021 Australian population (including Tasmania) was subject to a large volume of information as part of the country’s response to the COVID-19 pandemic. Therefore, combined with the national information campaign and the information provided justifying the University’s Direction, the Commission held that a reasonable attempt to comply with its consultation obligations had been made by the University.
Other notes
On "type of Court": The Fair Work Commission was established by the Fair Work Act 2009 (Cth). It is not a court but a national workplace relations Commission and registered organisations regulator.
