Teacher Stewart Robertson wins Temple Christian College Covid fight

A teacher at a prominent South Australian school had a legal win over his former employer after he was sacked from his position of more than 15 years.

A veteran teacher at a South Australian private school who was fired for not getting vaccinated against Covid has secured a legal victory.

Stewart Robertson was a secondary teacher at Temple Christian College for more than 15 years when he was dismissed in December 2021 for failing to prove he was vaccinated.

He was paid out his accrued annual and long service entitlements up to his last day of employment at the College – December 10, 2021.

But Mr Robertson, a legal studies and workplace practices teacher, was not paid any amount in lieu of notice of termination, and successfully fought for the funds through the South Australian Employment Tribunal.

Tribunal documents state Mr Robertson’s claim was not for unfair dismissal but was “for entitlements upon termination, which depend upon the legal character of his dismissal” – which deputy president magistrate Katherine Eaton ultimately upheld.

The lengthy judgement found Mr Robertson’s dismissal happened in less than four weeks, from November 16, 2021 when SAPOL Commissioner issued an Emergency Management Direction mandating Covid vaccinations – or approved exemptions – for school and childcare workers from December 11 that year.

Staff had until November 22 that year to inform the college of their vaccination status.

The independent reception to Year 12 college has two campuses – the main campus at Mile End and another at Paralowie.

College principal Marcel Rijken emailed his 196 employees on November 16, informing them of the mandate for at least one dose, and a booking for a second by December 10, and that it applied to “all staff”, with the workers’ intention to be registered with the school by November 22.

However, by that deadline, 42 of the 196 college employees had indicated they were not vaccinated, were still considering vaccination, or had not advised of their status.

Mr Rijken emailed staff – including Mr Robertson – the following day saying it was a “matter of urgency” the college be informed of their vaccination intention and if they had not received a dose, they would be terminated.

A subsequent letter in which Mr Robertson was told to clear his personal effects from the school grounds said his final leave entitlements would be “calculated and forwarded to you within 7 days of you ceasing employment beginning Saturday 11 December”.

The tribunal ruled Mr Robertson was entitled to “payment in lieu of his statutory entitlement to notice of five weeks” under the Fair Work Act.

While the tribunal found Mr Robertson deciding against vaccination was a “failure to comply with a lawful and reasonable direction” it was not “serious and wilful misconduct such as to justify summary dismissal”.

It also found “the College could not reasonably or lawfully direct an employee to get vaccinated”.

“It could only warn its employees of the consequences of not being vaccinated,” it said.

It found Mr Robertson’s termination required notice and he was entitled to payment in lieu of notice.

It found the college contravened the Fair Work Act in failing to pay the notice period and issue him a termination letter on the day of the termination.