Fair Work favours the boss in Covid-19 sackings

The spate of unfair dismissal claims to the Fair Work Commission offer some fresh thoughts on ‘reasonable consultation’.

That the decisions favour employers who mandated the jab for workers is not surprising, according to employment lawyers. Picture: Getty Images

Covid-19 “refuseniks” sacked for their stand against vaccinations have been the big losers at the Fair Work Commission over the past three years, with only a handful winning unfair dismissal cases.

That the decisions favour employers who mandated the jab for workers is not surprising, according to employment lawyers and workplace relations academics. That’s because most of the cases taken to the FWC were argued – unsuccessfully – on principle rather than process. Up-to-date figures on the number of unfair dismissal claims from people who declined vaccines, are hard to come by. The FWC initially gathered data during the pandemic but has since stopped. The latest available data shows that between October 2021 and August 2022, some 4250 claims were lodged, almost half of them in the spring and summer of 2021-22. The FWC says the rate of vaccination-related applications fell steadily after December 2021 and observers say that while decisions were still coming through last year, they have thinned in 2023.

However, this week the case of a former Qantas manager, who was sacked for noncompliance with the airline’s vaccination policy, attracted some attention. The employee had argued she complied once she returned from long service leave in 2022 but lost her case at the FWC. A number of her former colleagues who lost their jobs are seeking redress in the Federal Court.

While the FWC decisions have backed employers, their power to enforce vaccination mandates will wane as the risk of Covid-19 reduces.

Michael Byrnes, a partner at Sydney law firm Swaab, who has been a “robust”supporter of vaccination mandates, says that we’re now at the “high-water mark” for employees because the health risk is weaker and the right of employers to issue directives has declined.

Looking back on the past couple of years, Byrnes says applicants may have been doing themselves a disservice in focusing on the “more esoteric arguments” against vaccination rather than on whether the boss’s directive was reasonable and the termination process fair.

The FWC decisions have not changed case law on the issue.

Say Byrnes: “What was always at the core of this is that an employer has a right to give an ­employee a lawful and reasonable direction. It was always fundamentally about that, and in ­almost all cases, (being lawful) was never really a matter of controversy. The matter of controversy was whether it was reasonable for an ­employer to do so.”

While that issue is decided on a case-by-case basis, the “fundamental principle has been upheld in every case. What has been rejected in every case are the bizarre, esoteric arguments presented by the anti-vaccination movement and (their) lawyers and advocates, such as vaccination being an assault or battery on the body, or that it would constitute a breach of the Nuremberg Code or the Constitution or the Magna Carta. These bizarre and esoteric arguments were always doomed to fail.”

Arguments against the principle of vaccination were never going to find favour with the FWC, Byrnes says. There’s really been only one exception, a dissenting judgment from an FWC deputy president in 2021 in a flu vaccination case. She was then excluded from hearing vaccination cases pending further training.

Byrnes says that generally, the successful cases have been where the plaintiff has established a flaw in the termination process, for example, the failure of the employer to pursue other options, such as allowing a person to take leave, or to work from home.

Applications to the FWC are easy and relatively inexpensive. Unions, which traditionally back workers taking unfair dismissal cases, have often been reluctant to back anti-vaxxers so many cases have been taken by individuals representing themselves or by sympathetic lawyers working with groups of people.

The first step at the FWC is conciliation but Byrnes says most Covid cases are not settled largely because “people have very strong convictions, they’re passionate about it” and want to test the principle.

“They’re not always making decisions on a rational, legal basis, but doing so as a matter of principle or conviction,” he says. “There’s a certain missionary zeal about some of the applications which is divorced from the legal merits.”

Dr Giuseppe Carabetta, an associate professor at the University of Technology, Sydney Business School, says that while the case law is now “relatively clear” a few more cases covering unusual facts are probably needed to give clear guidelines.

“Generally speaking, particularly in client-facing roles, you’re not going to have a problem as an employer imposing a vaccination policy,” he said. “Generally speaking it will be seen as lawful and reasonable. But some employers have failed on the reasonableness test because they haven’t consulted properly. That’s potentially the sticking point.”

He says consultation is not difficult for big companies which can standardise the process across their workforce.

“You just need to be genuine about it, there’s no right of veto, so as long as you take the proper steps it’s not such a hurdle for employers,” he said. “Where applicants have won cases it has not been on the validity of the policy, or lack of consultation (about the directive) but on the way the dismissal was handled – something which is assessed on a case-by-case basis by the FWC.”

In short, while it’s relatively easy for big employers to standardise the consultation process, it’s not possible to standardise the termination process because the personal circumstances of the individual require judgment by managers.

Carabetta has analysed the 2021 decision by the Full Bench of the FWC in a case that ­involved workers at Mt Arthur Coal, part of the BHP group. Workers initially won a ruling in their favour in their unfair dismissal case on the grounds the miner had not ­adequately consulted staff on the jab directive. The FWC directed the company to consult correctly and the sackings remained in place. In a journal article, Carabetta wrote that the case confirmed that “reasonableness and proportionality were questions of fact and balance that need to be assessed on a case-by-case basis”.

Professor Joellen Riley Munton, professor of law at the University of Technology, Sydney, says Covid-19 prompted two key types of legal action – unfair dismissal claims to the FWC; and cases arguing the directives breached consultation provisions in enterprise bargaining agreements (the BHP case).

“The enterprise agreement (in that case) did require a level of consultation,” she says.

But in another case involving nurses, the FWC ruled the enterprise agreement did not give employees any entitlement to be consulted on how public health orders were ­implemented.

Riley Munton notes the responsibilities of employers: “I know a lot of people write these things from the point of view of the poor employee who really didn’t want to get vaccinated. I understand that sympathy, but you’ve also got to think about the employer who, if there is some sweeping illness at their workplace, could be subject to (big) compensation claims.

“There was in fact (early in the pandemic) a presumption that if someone had Covid, they got it at work. So there were reasons why the government deliberately imposed gatekeeper-type responsibilities on employers to try to pursue the overall public health agenda of getting high levels of vaccinations.

“If you look at it from that angle, it’s not surprising that when push came to shove the FWC came down with the view that the employers’ directions were reasonable. So long as the employer did things like tell people this was coming, gave them time to adjust, had a policy that allowed anyone with a serious medical condition to work from home or go on leave, the FWC view was that there was nothing harsh, unjust or unreasonable in dismissing someone who was simply asserting a right to personal autonomy.”

Despite the employers’ winning streak at the FWC, Riley Munton says sensible employers will pay attention to the decisions. They would look closely at the cases and say “they took up a lot of our time, and we did get some lessons from the way the FWC managed those cases, and the questions they asked tell us how we should implement these kinds of public health orders”.

She says: “You need to consult with workers, you need to keep people informed, to give people time, you need to be mindful of personal differences, and if there is some genuine reasons (against the vaccine) as an employer you will be expected to have interrogated other solutions.”

Paul Lorraine, a senior lawyer at Harmers Workplace Lawyers in Sydney, says inquiries from employees peaked in 2021 when the office fielded many calls, including from people who “were doing their own research, had their own opinions, sometimes conflicting (on the science) which was a bit challenging.” The firm took a big case to the FWC based on claims of bullying around Covid-19 measures. The case had settled.

Lorraine says the Mt Arthur decision is valuable because it highlights the need for consultation: “In my mind it started a train of thought about, well, what does it mean to have meaningful consultation? It’s not just some administrative, perfunctory tick-the-box thing. It got me thinking about what meaningful consultation actually ­involves and led me to develop some creative ideas about that, therefore giving better quality advice.”

He says the “sleeper” going forward is longCovid and its potential impact on claims.

The website Workplace Express has published dozens of FWC decisions since November 2020 but editor David Vincent says it has reported on few this year because of reduced volume and because cases are not raising new issues.

Decisions are also published on the FWC website at fwc.gov.au.