The effect of these directions upon the employment relationship was considered in two recent decisions, which we discuss below.
1/ Floors Aucamp v Association for Christian Senior Citizens Homes Inc
In October 2021, the Victorian Acting Chief Health Officer issued the COVID-19 Mandatory Vaccination (Workers) Directions (Vaccination Directions) which required certain employers to take all reasonable steps to ensure that their unvaccinated workers (being workers who had not received a dose of the COVID-19 vaccination, and was not otherwise an “excepted person”) did not work outside the worker’s ordinary place of residence on or after 15 October 2021.
Mr Floors Aucamp (the Applicant), in his capacity as a Maintenance Manager at the Respondent’s retirement village, undisputedly came within the definition of a ‘repair and maintenance worker’ under a definition provided in the Vaccination Directions.
On 24 October 2021, the Applicant made an application to the Fair Work Commission (FWC) for an unfair dismissal remedy pursuant to s394 of the Fair Work Act 2009 (the Act).
The relevant facts and circumstances
For the reasons, set out below, the FWC found that the dismissal was not harsh, unjust or unreasonable, taking into account the following.
The dismissal related to the Applicant’s conduct
The Applicant’s termination related to his capacity, rather than his conduct. The Applicant could not lawfully perform his role as the Vaccination Directions prohibited the Respondent from permitting him to work as a Maintenance Manager at the retirement village.
There was a valid reason for the dismissal
The FWC found that there was a valid reason for the dismissal. The Applicant had stated unequivocally that he would not be getting vaccinated. Therefore the Respondent was entitled to conclude that he would remain unvaccinated and would have been liable for a substantial financial penalty if it permitted him to work outside of his ordinary residence contrary to the Vaccination Directions.
Procedural fairness afforded to the Applicant
A meeting discussing the foreshadowed Vaccination Directions before their commencement, and an email enclosing a copy of the Vaccination Directions, satisfied the FWC of the Respondent’s requirement to notify the Applicant. A later email to the Applicant provided him with the opportunity to respond, which he did so by return email, stating he would unequivocally not be getting vaccinated.
Furthermore, the Applicant was clearly aware that termination of his employment was a possibility if he did not comply with the Vaccination Directions.
Other Considerations
An individual’s doubts over legality of government directions and mandatory vaccinations
The Applicant submitted that the Vaccination Directions were a violation of a number of codes, covenants and declarations, and questioned its validity, legality and discriminatory nature. The FWC was not persuaded by these matters and found that they were not sufficient to render the dismissal unfair.
2/ Falconer v Commissioner of Police
On 12 November 2021, the Western Australian Chief Health Officer, Dr Andrew Robertson, issued the WA Police Force Worker (Restrictions on Access) Directions (the CHO Directions) which required all WA Police to be partially vaccinated against COVID-19 by 1 December 2021 and fully vaccinated by 31 December 2021.
On 24 November 2021, the Commissioner of Police issued a direction which contained the same requirements (i.e. to be vaccinated), whilst also providing that non-compliance would result in disciplinary action, with outcomes varying from reprimand to dismissal (Employer Direction).
Mr Ben Falconer, a senior constable in the WA Police Force (the Applicant), filed for proceedings on 6 December 2021, bringing an application for judicial review in which he challenged the validity of the Employer Direction.
The grounds of review
The Applicant challenged the Employer Directions on five grounds:
Employer Direction not authorised by the Public Health Act and/or Police Act
Section 157(I)(j) of the Public Health Act empowers authorised officers, while a serious public health risk continues, to direct any person to undergo medical observation, medical examination, or medical treatment, or to be vaccinated, as specified by the officer. The Applicant submitted that these powers ‘cover the field’ with respect to who may make an order that a person be vaccinated and the circumstances in which that may occur, such that the Employer Direction could not be made.
Findings
It was held that this ground was not reasonably arguable and was dismissed. In other words, the Employer Direction was authorised by the relevant legislation.
Not a “lawful and reasonable” direction
The relationship between the Commissioner of Police and a member of the Police Force is not strictly an employment relationship and is not governed by contract. As such, rather than focusing on the lawfulness of termination of employment where, by reason of an employee being unvaccinated and unable to carry out the duties of their employment, here, the Supreme Court of WA was concerned with the Commissioner’s exercise of authority and whether there were any limits to his power.
The Commissioner of Police relied entirely on s5 of the Police Act by which he has ‘general control and management of the Police Force’.
Findings
It was held that there was a limited but arguable question whether, and to what extent, that general control and management of employees is limited by the right to bodily integrity. As an extreme example, Allanson J doubted that a power of control and management could be said to permit corporal punishment.
Commissioner of Police cannot terminate employment of a Member of the Police Force
On 24 November 2021, Deputy Commissioner Colin Blanch was interviewed on radio and made the comment: ‘the remaining ones [referring to police officers who refused to get vaccinated] will probably find themselves out of a job in due course … so I think that’s the inevitable outcome, as sad as that is.’
The Applicant submitted that this comment inferred that the Commissioner of Police had already formed the view that officers who failed to be vaccinated would be dismissed, rather than subject to some other disciplinary outcome.
Findings
Allanson J held that even if Deputy Commissioner Colin Blanch’s comments could be construed as an apprehended bias arising from public statements, this would not affect the independent exercise of discretion by another officer or the Commissioner of Police himself.
Employer Direction is ultra vires
The Applicant submitted that the Employer Direction was not reasonably appropriate and adapted or proportionate to the implementation of the CHO Directions.
Findings
Although the Employer Directions were at least factually, if not legally, based on the Chief Health Officer’s Directions, Allanson J articulated that it is not a sound exercise of the court’s discretion to summarily dismiss the Applicant’s claims on this ground.
Importantly, Allanson J noted that that conclusion does not say anything about the lawfulness of the direction of the Chief Health Officer and the effect remains that, unless set aside, the Applicant and others in his position would not be able to attend or remain at police premises.
Legal irrationality
The Applicant submitted that the Employer Directions were not rationally connected to the statutory purpose of the Commissioner of Police’s power and that it was a ‘disproportionate’ response.
Findings
Without relevance to the present application, Allanson J did not consider the reasonable prospects of success for this ground of review.
What do these decisions mean?
These decisions are two examples of the effect of mandatory vaccination requirements upon the employment relationship.
In particular:
Where employers are required to terminate an employee’s employment due to their refusal to comply with a government mandated COVID-19 vaccination, it is likely that there will be a valid reason for the dismissal.
However, employers should be careful not to rush to terminate the employment of employees on this basis and ensure that employees are still afforded a proper opportunity to:
- reconsider the mandatory vaccination requirements and their intentions to be vaccinated or no;
- consider and respond to the foreshadowed termination of their employment if they do not comply with the mandate; and
- bring forward all relevant information for consideration by their employer, prior to being dismissed.
The Falconer decision is a decision highly dependent upon the particular facts of the case, including the legislated powers of the Police Commissioner of WA. It should not be understood as authority for the position that a requirement to comply with the mandate is unlawful and/or unreasonable.
To the extent that a government direction applies to an employer and its employees, they should continue to comply with the relevant direction.
