Holy Cross Catholic Primary School teacher Lance O’Keefe in Fair Work bid to be reinstated

The Fair Work Commission has determined a legal challenge by an eastern suburbs teacher after he was sacked for refusing to be vaccinated against Covid-19.

A teacher at a top eastern suburbs Catholic school has lost a legal bid to return to his position after he was sacked for refusing to be vaccinated against Covid-19.

The Fair Work Commission has rejected an application by Lance O’Keefe to be reinstated to his full-time teaching role at Holy Cross Catholic Primary School in Woollahra after he was dismissed from the position last November.

Mr O’Keefe claimed he had been unfairly dismissed for choosing not to receive two doses of the vaccination due to concerns he had over possible side effects.

His dismissal was prompted by a NSW Health order – which came into effect in Term 4 of last year – which required teachers to be fully vaccinated by November 8, or provide a relevant medical contraindication certificate.

The commission – in its decision on Monday – said there “was no medical reason why Mr O’Keefe could not have been vaccinated by this date” and instead “chose not to”.

A photo of Holy Cross Catholic Primary School.

Five weeks before the November 8 deadline, the school’s principal wrote to Mr O’Keefe indicating he needed to advise the school of his vaccination status.

“I understand you would like to weigh all the options but unfortunately, since the release of the Public Health Order, you will be required to make a decision as soon as possible in order to be able to be on the school site,” the letter stated.

Mr O’Keefe worked at Holy Cross Catholic Primary School.

“If you are still not fully vaccinated as our students return, I am afraid you will not be able to return to school.”

Mr O’Keefe, who was on paternity leave at the time, received another letter from the school on November 17 informing him his employment would be terminated before the start of Term 1, 2022.

The letter – which came after the school unsuccessfully tried to meet with Mr O’Keefe via zoom to discuss his vaccination status – stated: “While (the school) completely respects the personal decision regarding vaccination” it is “unlawful for unvaccinated staff to work in our schools”.

Mr O’Keefe claimed the decision to terminate his employment was “unreasonable, harsh and unjustified”, and claimed he was not properly consulted about the mandate or provided alternative employment such as online teaching.

He denied he was “anti-vaccination” and preferred to describe himself as “anti-mandates” or “pro-choice”, the commission heard.

The Fair Work Commission determined the case.

The Fair Work Commission, in its decision, rejected Mr O’Keefe’s application – finding the school – which is operated by the Sydney Catholic Schools – had a valid reason to dismiss him from his employment

“Mr O’Keefe thinks that he is at greater risk of a dangerous reaction to the vaccine than he is to a dangerous illness from Covid itself, despite there being no medical evidence to support his belief and in fact despite the contrary advice given by Mr O’Keefe’s own doctor,” the commission said.

“At the time that Sydney Catholic Schools made the decision to terminate Mr O’Keefe it was taking proper and reasonable steps to ensure that it complied with the education specific Public Health Orders in force at the time which, in no uncertain terms, required all teachers to be vaccinated.

“At this time there was no basis for Sydney Catholic Schools to think that Mr O’Keefe met the requirements of the Public Health Order, nor was there any basis for Sydney Catholic Schools to think that Mr O’Keefe would meet the requirements of the Public Health Order at the start of the next school year.”

The judgement comes after the state government lifted its requirement for school-based staff to be vaccinated against Covid-19 as a condition of employment.

Independent and catholic schools were able to set their own rules on a school-by-school basis.

Sydney Catholic Schools in a statement said it no longer required all staff to be vaccinated, except in specialist settings.

The health order relating to vaccination in schools was made in November last year.

The spokeswoman declined to say whether the organisation would consider reinstating Mr O’Keefe should he reapply for his position.

“Sydney Catholic Schools will not comment on an individual employee or former employee’s circumstances,” she said.

“Sydney Catholic Schools has amended its vaccination policy so that the mandatory provision of evidence of vaccination is no longer required except in specialist settings. This position is consistent with the Department of Education and broader government mandates.

“Those staff members who resigned or were terminated in line with the Public Health Order and our organisation’s vaccination policy are welcome to apply for vacancies and may be reappointed in line with a merit based selection process.

“All our schools apply a risk based approach to their current activities to ensure the health and safety of our students, staff and their families is our highest priority.”