Woman unfairly sacked while waiting for Novavax approval in Australia

A woman was unfairly dismissed from her role at a food wholesaler and distributor because she wanted to wait for a specific vaccine.

An Adelaide woman has successfully sued her employer for unfair dismissal, with the Fair Work Commission finding she should have been given options to work from home or take leave until the approval of the Novavax vaccine.

Robyn Pskiet worked at food wholesaler and distributor Nocelle Foods for more than 16 years until her dismissal in January for refusing to comply with the company’s vaccination policy.

She had previously advised her manager that she wanted to receive the Novavax vaccine.

Nocelle Foods terminated Ms Pskiet’s employment on January 12, telling her she had not provided a medical exemption for being vaccinated.

Ironically, on January 20, the Therapeutic Goods Administration (TGA) provisionally approved the use of Novavax in Australia and doses were being administered a month later.

Ms Pskiet worked as Nocelle Foods’ quality assurance manager, working at a warehouse in Pooraka with about 60 other employees.

She claimed the company’s vaccination policy was not “reasonable or lawful”, as the process of seeking compliance with the policy did not allow her to work from home or await access to Novavax, and her dismissal was therefore unfair.

Fair Work Commissioner Peter Hampton found her dismissal was unfair, largely due to the timing and the manner in which the company’s vaccination policy was applied to her.

In his reasons, published in July, Mr Hampton said Nocelle Foods’ policy was lawful and reasonable but Ms Pskiet could not have worked from home in her role.

“Although some elements of her work could be performed from home, this was not a viable or productive medium or longer-term option,” Mr Hampton said.

Ms Pskiet had given evidence that she was not “anti-vax” but “pro-choice” and wanted to wait for Novavax to be administered.

Mr Hampton said she had not complied with the company’s policy or provided a relevant exception.

But he said Ms Pskiet should have been afforded “proper consideration” of her circumstances that could have avoided the need for dismissal.

This could have included an option to take leave until Novavax’s arrival in Australia.

“I also accept that it would not have been reasonable for Ms Pskiet to have been granted extended indefinite leave, including because of the nature of her position,” Mr Hampton said.

“However, the prospect of the Novavax vaccine was real at the point of the dismissal and the fact of dismissing the applicant had the effect of completely removing Ms Pskiet as a resource for the business.

“The timing and related application of the policy to Ms Pskiet means that I cannot be satisfied that, at the point of termination, a valid reason existed.”

Ms Pskiet was ultimately awarded $3462 in compensation plus superannuation.