Mandatory Vaccination Directive | FWC Says No Dismissal for Compliance

In the decision of Rita Anderson v Wongaburra Aged Care [2022] FWC 69, the Fair Work Commission (‘FWC’) decided that an aged care provider did not dismiss an employee when it required her to comply with a mandatory vaccination directive.

The FWC was required to determine a jurisdictional issue regarding whether an employee had been dismissed within the meaning of the Fair Work Act 2009 (Cth) (‘FW Act’). Wongaburra Aged Care (‘respondent’) was subject to a COVID-19 vaccination mandate that required all workers in aged care to have their first COVID-19 vaccination by 16 September 2021. Rita Anderson (‘applicant’) had refused to be vaccinated from when this requirement was first communicated in July 2021.

On 13 September 2021, the respondent sent the applicant an email advising that due to the mandatory government directive, no-one employed in aged care will be allowed on site after 16 September 2021 unless they have had their first COVID-19 vaccination. It also advised the applicant that she would be stood down without pay and given until Thursday 5pm 23 September 2021 to comply with the mandated directive. The applicant was then taken off the roster which included two shifts already allocated to be performed before 17 September 2021. After 14 September 2021, the applicant performed no more work for the respondent.

On 22 September 2021, a meeting was held between two respondent representatives, the applicant and her support person. The applicant refused to reconsider her decision to not be vaccinated and asked what would happen next. A respondent representative told the applicant she could remain stood down without pay to allow her time to comply with the mandate or to see what happened. The applicant was also told that if she did not wish to remain stood down she could end her employment and look for work elsewhere.

The applicant’s support person suggested that the applicant be issued with a separation certificate to allow her to receive Centrelink payments to which the applicant agreed. On this basis, the respondent issued a separation certificate indicating that a termination of the applicant’s employment had occurred by way of resignation on 17 September 2021, being the first date of the mandate. The applicant later objected and claimed unfair dismissal.

For the purpose of section 386(1) of the FW Act, the FWC was essentially required to determine whether the applicant’s employment had been terminated at the initiative of the employer. The FWC determined that the applicant’s request for a separation certificate was the catalyst for the termination of employment.

Given the respondent’s obligations to comply with the vaccination mandate, the FWC determined that it’s communication to the applicant that she would not receive any further shifts if she remained unvaccinated did not amount to a termination at the initiative of the employer. The respondent was merely communicating the effect of the government mandate to its staff members. Out of the options available the applicant chose resignation. On this basis, the FWC dismissed the unfair dismissal application on the basis that the applicant had not been dismissed within the meaning of the FW Act.

The employer was able to defend against the unfair dismissal claim by presenting a number of options to the employee that did not involve dismissal. The employee took the option of resigning and was therefore prevented from making a valid unfair dismissal claim. The requirement to comply with the COVID-19 vaccination mandate did not amount to the employer engaging in conduct that forced the employee to resign.

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