Scotch College groundskeeper loses legal fight over jab rule

A Scotch College worker who was sacked for refusing the jab has lost a legal battle over his job, as private schools face an influx of unfair dismissal claims.

Former Scotch maintenance worker Brendan Johnstone was sacked for refusing to get vaccinated. Picture: Tony Gough

Private schools are facing a slew of unfair dismissal claims from staff who allege they were sacked unjustly because they were unvaccinated.

Ahead of term three commencing after the removal of mandatory Covid vaccinations for school staff, a maintenance worker at exclusive Scotch College in Hawthorn this week had his dismissal appeal thrown out by the Fair Work Commission.

The Full Bench on Thursday reaffirmed the college’s move to fire groundsman Brendan Johnstone due to his refusal to be vaccinated against Covid, finding that he had been formally told about his termination in “unambiguous terms” in a letter.

Representing himself, the Mill Park man learned his fate by dialling into the hearing over the phone, during which Commissioner Tanya Cirkovic said his claims of witnessing adverse jab reactions in relatives and unsubstantiated mental health claims were not grounds for exemption from the school’s jab policy.

“As a consequence of your decision not to become vaccinated against Covid-19, you’re unable to meet the requirements of your employment contract with the school by telling on site to undertake the duties of your role,” Ms Cirkovic said.

An employment lawyer says unvaccinated school staff are unlikely to be successful in unfair dismissal cases.

Similar claims have been brought by other unvaccinated private school staff members, including Anthony Webster, a groundskeeper at Xavier College.

Last month Mr Webster failed in his bid to claim unfair dismissal because his application was received out of time due to postal delays.

Mr Webster was terminated on 14 April 2022 after he was told by the school he could no longer perform his job given that he was no longer permitted on school grounds because he was unvaccinated.

The groundskeeper argued that his dismissal was unfair because he had already had Covid and thus did not need to be vaccinated against the virus.

He said Commonwealth documents were in place to protect his rights with respect to “civil conscription and discrimination”.

A groundskeeper at Xavier argued his dismissal was unfair because he’d already had Covid and therefore didn’t need to be vaccinated. Picture: Mark Stewart

Fair Work Commission deputy president Colman ruled that Mr Webster’s case was “so weak that his application has no reasonable prospects of success”.

A former teacher at Ivanhoe Girls’ Grammar School in June lost her appeal with the Fair Work Commission after she was fired for being unvaccinated without a valid exemption.

‘No jab, no job’ orders for schools were lifted on June 24, allowing unvaccinated staff to either return to their previous roles or apply for new jobs if their position was filled by a vaccinated worker.

It came as vaccinated staff expressed frustration to the Herald Sun over being forced to follow the rules to keep their jobs to have hundreds of workers “bypass” the mandate.

But employment lawyer Paul O’Halloran, partner at Colin Biggers & Paisley, said school staff were likely to stay unsuccessful in their fights for re-employment or financial compensation for being stood down when the mandates were in effect because laws did not apply retrospectively.

“Schools are likely to have their own local vaccination policies, which some of them may start to develop irrespective of the Victorian directions,” he said.

“I just can’t see what a teacher would do in terms of challenging that and claiming compensation. They will still continue to be unsuccessful.

“It’s all a fluid situation with the pandemic. What was unlawful last month is now going to become lawful.”