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:
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.
