Australian Employee Dismissed for COVID-19 Vaccine Protest

The Fair Work Tribunal has supported an employer’s decision to immediately terminate an employee after he attended an anti-vaccine rally in Melbourne last year.

Although the Fair Work Commission (FWC) criticised the employer’s decision to terminate the employee’s contract with little notice, they ultimately found the dismissal was warranted.

The FWC did however order compensation be paid to the employee for the period in which he would have remained employed if he had been terminated on notice.

What Happened?

In September last year, thousands of construction workers took to the streets of Melbourne, including outside the Construction, Forestry, Maritime, Mining and Energy Union’s (‘CFMEU’) headquarters, to protest vaccine mandates.

Before the protests, construction sites shut down for an extended period to assist with COVID-19 tracing measures.

Once the sites re-opened, vaccine mandates were imposed, giving workers approximately one week to get their first dose of a COVID-19 vaccine.

Thousands took to the streets to voice their displeasure, including outside the union’s office in Melbourne’s CBD where windows were smashed and officials were confronted.

The Union’s View (CFMEU)

The CFMEU publicly agreed to encourage workers to get a vaccine but made it clear that they did not support the new mandate policy.

The CFMEU also distanced themselves from the rallies, calling out the violent protesters for being ‘morons’.

The Fair Work Commission

As Victoria was under strict ‘stay-at-home’ measures, the employee was dismissed from his role for engaging in ‘serious misconduct’ by attending the rally.

The employer believed the employee’s actions ‘brought the company into disrepute’ and ‘put it at risk of significant fines’.

The employee argued he was within his rights to attend the protests as he was supporting his fellow industry workers.

The employee also argued that violation of the stay-at-home orders was ‘a matter between him and the authorities’ and consequently ‘not work related’.

The FWC condemned the employee for breaking the stay-at-home directions though, and found that the protest was unlawful as a result.

The FWC also found that the employee’s rally attendance was ‘work related’ as the protest was linked to his industry’s working conditions.

A similar outcome was found in the Kimber v Sapphire Coast Community Aged Care Ltd decision. The FWC found it is was lawful for the aged care centre to fire Mrs Kimber for her refusal to receive an influenza vaccination.

Can My Employer Force Me to Be Vaccinated?

In determining whether or not a directive to be vaccinated is lawful and reasonable, an employer should consider the following matters (amongst others):

1. The current health advice given by the Federal Government;
2. The industry the employer is engaged in;
3. Workplace health and safety obligations;
4. Provisions in employment contracts, awards, or enterprise agreements;
5. Whether remote work options (or alternative means) are an alternative;
6. Availability of vaccinations;
7. Consultation with employees (if any); and
8. Exemptions to the direction.

In short, employers should consult with their employees before implementing vaccination directions.

Employers must also consider their duty of care, such as the protection of all employees and the workplace, and balance this with each individual’s beliefs.

Recently, the FWC determined that BHP’s decision to implement a COVID-19 vaccination policy for its Newcastle-based mining employees was unlawful and unreasonable.

Approximately 50 mineworkers were stood down without pay after they were told they would be required to have had at least one dose of a COVID-19 vaccine to re-enter the worksite.

The commission’s president, Iain Ross, said in its ruling that the company’s mandate was not ‘a lawful or reasonable direction’ due to the mine management’s failure to consult with its employees about whether it was necessary.

Contact Us

Bambrick Legal recommends that employers obtain expert advice before implementing a vaccination policy for their employees.

For more information, contact us at Bambrick Legal today. We provide a free 15-minute consultation for all new enquiries.

• Fill in our enquiry form here
• Call us on 08 8362 5269
• Like us on Facebook
• Follow us on LinkedIn

Read more about our Employment services here.

Related Blog – Flexible Working Arrangements (Home vs Office)