Unvaccinated teachers will seek receive ‘lost wages’ compensation

Unvaccinated teachers are lining up to claim compensation from the state government for pain and suffering and lost wages for being denied the right to work.

Unvaccinated teachers denied the right to work are lining up to claim compensation from the state government for lost wages, the Herald Sun can reveal.

The Teachers’ Professional Association – a breakaway union popular with staff unimpressed with the Andrews Government’s handling of the pandemic – says teachers will make claims for pain and suffering and lost wages.

“They will look at their options in the Fair Work Commission under a general protections dismissal or human rights claim,” association national co-ordinator Scott Stanford said.

“The research shows they could have gone back to work once schools opened, with masks or daily RATs, and should have been allowed to do so,” he said.

It comes as dozens of unvaccinated teachers have already fought their dismissal in the Commission.

A number of staff from key educational employers including GoodStart Early Learning, Ivanhoe Girls’ Grammar and Caroline Chisholm Catholic College have unsuccessfully sought reinstatement.

Student at Caroline Chisholm Catholic College in Braybrook in Melbourne's west sanitise their hands as they return to school. Picture: Andrew Henshaw

The Commission has upheld the legality of the vaccine mandates in each case.

A NSW case involving a teacher seeking $80,000 in compensation – but not reinstatement – was not accepted as it was out of the time frame. However, Commissioner John Murphy said the claim was not “without merit”.

Lawyers say such claims are not likely to succeed, although Zana Bytheway, executive director of JobWatch, said “there are always exceptions and each case turns on its own individual facts”.

She said the lifting of the mandate didn’t confer any new rights on the unvaccinated teachers.

“Unfair dismissal cases have been very clear that dismissal will be justified where an employee doesn’t comply with a mandate,” Ms Bytheway said.

Employment lawyer Paul O’Halloran, partner at Colin Biggers & Paisley, said dismissals enforced during the pandemic would remain lawful despite the vaccine mandate set to lift for teachers on Friday.

“The new directions are not retrospective, so whatever noncompliance occurred in the recent past that resulted in their dismissal for failing to follow lawful and reasonable directions, still stands,” he said.

A NSW case involving a teacher seeking $80,000 in compensation – but not reinstatement – was not accepted.

“They will still continue to be unsuccessful, in most cases with their unfair dismissal claims.

“There are no causes of action that a teacher could bring, contractually, or under an enterprise agreement, to challenge those dismissals. I’m not seeing any obvious basis for teachers to seek legitimate compensation in these areas.”

Lawyer Nick Duggal, a partner at Moray and Agnew said such claims would only have a “low prospect of success”.

He said the right of the government to only allow vaccinated teachers on site was well established in numerous Fair Work Commission decisions.

There are 280 public school teachers who can return to work who were either terminated or took leave without pay.

Three hundred and fifty one terminated public school staff did not meet vaccine requirements after six months’ leave without pay.