Transport worker’s termination valid after failing to comply with vaccine mandate

In the matter of Stephen Wayne Harrison v Ventura Transit Pty Ltd [2022] FWC 335, the Fair Work Commission (FWC) has reiterated that an employee’s failure to comply with a Government direction to be vaccinated against COVID-19 is a valid reason for the termination of employment, if that failure results in the employee being unable to fulfill an inherent requirement of their role.

Facts

The Applicant, Mr Harrison, worked as a relief bus driver for Ventura Transit Pty Ltd (Ventura), a bus company operating in Victoria.

In October 2021, the Victorian Government issued the COVID-19 Mandatory Vaccination (Workers) Directions (the Directions) under which Mr Harrison, as a ‘transport worker,’ was required to receive a first dose of vaccine by 15 October 2021, and a second dose by 26 November 2021. Ventura issued numerous reminders in the lead up to the first dose deadline, confirming that staff were required to provide evidence of vaccination or a valid exemption by that date, failing which they would be stood down.

By 14 October 2021, Mr Harrison had indicated he would not be vaccinated against COVID-19, so he was stood down. Ventura scheduled two meetings with Mr Harrison to discuss his position in relation to the Directions and his ongoing employment, both of which he failed to attend, claiming that he had not received notification of the first meeting and that the second meeting time was ‘unsuitable.’ Based on the information available, Ventura determined that, in failing to become vaccinated against COVID-19 or provide evidence of a medical contraindication, Mr Harrison had not complied with the vaccination mandate under the Directions and was unable to perform an inherent requirement of his role. Therefore, Ventura decided to terminate Mr Harrison’s employment.

Mr Harrison then commenced an unfair dismissal application, claiming his termination was unfair on the following two grounds:

• there was no valid reason because the Directions were unlawful; and
• the dismissal was procedurally unfair because he claimed not to have received some of the correspondence issued by Ventura.

Decision

Ventura submitted that the reason for dismissal was that Mr Harrison could not work as a bus driver due to his failure to be vaccinated in accordance with the Directions. The FWC agreed and noted that there were no other suitable alternative duties which could reasonably be provided to Mr Harrison. The FWC also noted that Ventura would face a significant financial penalty if Mr Harrison continued to drive buses after 15 October 2021 without being vaccinated. Mr Harrison’s argument that the Directions were unlawful did not alter this position, even though there was no evidence of unlawfulness put forward. The FWC was therefore satisfied that Ventura had a valid reason to terminate Mr Harrison’s employment.

Mr Harrison claimed not to receive certain pieces of correspondence from Ventura. Based on the evidence, the FWC was satisfied that Mr Harrison had in fact received that correspondence. However, even had he not received those particular pieces of correspondence, the FWC noted that he had received sufficient correspondence to respond to Ventura’s request for the production of evidence of vaccination or a valid exemption. Mr Harrison responded to that correspondence in the manner he saw fit.

Ultimately, the FWC held there was a valid reason for Mr Harrison’s dismissal and procedural fairness was afforded to him. Accordingly, his dismissal was not unfair.

Take Home Message

If an employee is unable to fulfill an inherent requirement of their role by refusing to comply with a Government-issued COVID-19 vaccination mandate, the employer has a valid reason to terminate the employee’s employment. This is one of a growing number of cases heard before the FWC which has come to the same conclusion. However, employers should remain mindful that they need to comply with all other procedural steps to ensure that the dismissal is fair.

If you would like to discuss any of the matters raised in this article, please contact Sathish Dasan on + 61 8 8217 1337 or sdasan@normans.com.au, Ganesh Krishnan on + 61 8217 1395 or gkrishnan@normans.com.au, or Anastasia Gravas on + 61 8 8210 1331 or agravas@normans.com.au.