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Employ­ee Rights when a Busi­ness Man­dates COVID-19 Vac­ci­na­tions

While 95% of Aus­tralians aged over 16 years have opt­ed to be ful­ly vac­ci­nat­ed against COVID-19, there are a minor­i­ty of peo­ple who have exer­cised their choice not to. It is report­ed that in some cir­cum­stances, this group have faced employ­ment hard­ships as a result of this deci­sion.

A con­cern­ing issue fac­ing those peo­ple who have cho­sen not to be vac­ci­nat­ed against COVID-19 is the ter­mi­na­tion of their employ­ment. 

While some indus­tries have had a gov­ern­ment issued COVID-19 vac­ci­na­tion man­date, there are many busi­ness­es that have intro­duced their own COVID-19 man­date or con­tin­ued a now defunct gov­ern­ment man­date. A fail­ure to be vac­ci­nat­ed in these busi­ness­es often results in a ter­mi­na­tion of employ­ment.

If your employ­ment has been ter­mi­nat­ed due to a COVID-19 vac­ci­na­tion man­date in an indus­try that is not sub­ject to a gov­ern­ment vac­ci­na­tion man­date, you may be eli­gi­ble to file a claim for unfair dis­missal or wrong­ful ter­mi­na­tion, if you file with­in 21 days of ter­mi­na­tion.

If you are an employ­er con­sid­er­ing impos­ing a COVID-19 vac­ci­na­tion man­date or ter­mi­nat­ing a staff member’s employ­ment for their choice not to be vac­ci­nat­ed, you may risk an unfair dis­missal or wrong­ful ter­mi­na­tion claim against you.

What types of employ­ment have been man­dat­ed by the gov­ern­ment to require COVID-19 vac­ci­na­tions?

There are some indus­tries where a gov­ern­ment issued COVID-19 man­date does require employ­ees to be vac­ci­nat­ed.

As at the date of this arti­cle, the NSW gov­ern­ment still requires the fol­low­ing employ­ees to be vac­ci­nat­ed against COVID-19:

  1. Health care work­ers.
  2. Res­i­den­tial aged care work­ers and any work­ers who are required to enter such a facil­i­ty;
  3. In-home and com­mu­ni­ty aged care work­ers; and
  4. Dis­abil­i­ty ser­vices work­ers.

Unfor­tu­nate­ly, if you have been ter­mi­nat­ed from any of these list­ed employ­ments you are unlike­ly to be suc­cess­ful in a claim for unfair dis­missal for refus­ing to be vac­ci­nat­ed.

What hap­pens if an employ­er man­dates COVID-19 vac­ci­na­tions, but its indus­try is not list­ed above?

If your employ­ment has ter­mi­nat­ed due to a non-gov­ern­ment COVID-19 vac­ci­na­tion man­date, you may be eli­gi­ble to lodge a claim with the Fair Work Com­mis­sion (Com­mis­sion) for unfair dis­missal or wrong­ful ter­mi­na­tion.

It is impor­tant to note, the Com­mis­sion will not find a dis­missal or ter­mi­na­tion is unfair or unlaw­ful pure­ly because the indus­try was not direct­ly sub­ject to a gov­ern­ment vac­ci­na­tion man­date.  You will need to prove that the imple­men­ta­tion of your employer’s COVID-19 vac­ci­na­tion man­date was unrea­son­able.  To do so requires an analy­sis of the nature of the employ­ment, the risk of trans­mis­sion of COVID-19 to the vul­ner­a­ble, and whether any alter­na­tive risk min­imi­sa­tion mea­sures could have been imple­ment­ed. 

Employ­ers should note that, recent­ly, a work­place in Queens­land that intro­duced a vac­ci­na­tion man­date where the gov­ern­ment did not require one, faced back­lash from staff.  Four hun­dred employ­ees were involved in the dis­pute, claim­ing that the man­date was unnec­es­sary due to the type of busi­ness and employ­ment.  It was argued the man­date removed employ­ees’ rights to decide if they want­ed to be vac­ci­nat­ed. Fur­ther, the man­date did not con­sid­er oth­er pro­tec­tive mea­sures that could be imple­ment­ed to ensure the safe­ty of staff. The dis­pute came to a stand­still the day before it was due to appear in the Queens­land Com­mis­sion, as the com­pa­ny with­drew the man­date.

The take-out for employ­ers:

By man­dat­ing or con­tin­u­ing to man­date COVID-19 vac­ci­na­tion beyond the government’s require­ments, busi­ness­es open them­selves up to a risk of legal action by its employ­ees. Such legal action includes unfair dis­missal claims, unlaw­ful dis­crim­i­na­tion claims, and work­ers com­pen­sa­tion claims for adverse side-effects of the vac­cine. Employ­ers should care­ful­ly con­sid­er the cost of this risk to their busi­ness.

When can an employ­ee start an unfair dis­missal or wrong­ful ter­mi­na­tion action?

The Com­mis­sion has strict time lim­its for com­menc­ing an action against an employ­er.  Employ­ees must file an unfair dis­missal or wrong­ful ter­mi­na­tion claim with­in 21 days of ter­mi­na­tion.  Where there have been extra­or­di­nary cir­cum­stances, the Com­mis­sion may make an excep­tion to the time lim­it.  How­ev­er, such exten­sions of time are rare, so it is imper­a­tive to seek legal advice with­in the time lim­it if you are con­sid­er­ing mak­ing a claim.

Manda­to­ry vac­ci­na­tion was a tem­po­rary part of the roadmap to re-open­ing the econ­o­my and was nev­er intend­ed to be includ­ed as a per­ma­nent require­ment in the work­place.  If you feel your employ­er has unfair­ly ter­mi­nat­ed your employ­ment on the basis of a COVID-19 vac­ci­na­tion man­date, or if you are con­sid­er­ing an appro­pri­ate man­date for your busi­ness, please con­tact the team at Dono­van Oates Han­naford for advice.

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