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The applicant brought a claim against the employer for unfair dismissal after he was terminated from his employment due to his failure to comply with a policy requirement imposing mandatory vaccination against COVID-19.

In particular, the applicant submitted that, in October 2021, the employer introduced a COVID-19 vaccination plan which required that employees who were not otherwise subject to a direction from a relevant State Government were to receive their first dose of a COVID-19 vaccine by 31 December 2021, a second dose by 11 February 2022, and have a booster shot in accordance with any government orders. The applicant also argued that employees covered by the policy and not otherwise covered by a state government direction were also required by the policy to provide evidence of their vaccination. A refusal to provide evidence of vaccination status would be deemed to be a breach of the policy which may result in standing the staff member down from duties and subject to disciplinary action. Finally, the applicant claimed that the policy was not subject to proper consultation and that his dismissal for non-compliance was not a valid reason for termination. He argued that, since he had been working remotely, his work required no interaction with others and as such vaccination was not necessary.

On 24 May 2022, the Fair Work Commission dismissed the employee’s claim and concluded that, whilst the policy was developed over a relatively short period of time, there was adequate consultation with management and staff. Accordingly, the applicant had a number of opportunities to express his views during this process of consultation. Furthermore, the Commission found that, upon signing his employment contract, the applicant had agreed to abide by all company policies and procedures. In this regard, the Commission determined that the applicant’s offer to keep working from home was not reasonable as it was up to the employer – not the employee – to decide on appropriate work locations. Conclusively, the Commission was satisfied that non-compliance of the vaccination policy amounted to “willful misconduct” and even in the absence of a government direction, they were entitled to terminate his employment.

Full text of the decision available at fwc.gov.au en