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COVID-19 vaccine: have you been unfairly dismissed? – Health & Safety



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A recent case of Dean v Regional Express Holdings Limited (Rex)
highlights that a one size does not fit all.

Mr Dean succeeded in his claim for unfair dismissal and was
reinstated to his position as a pilot at Rex.

There have been literally hundreds of cases filed by people who
have been dismissed by an employer following a company’s
vaccination policy. Many of these claims have been either
unsuccessful or discontinued.

Most lawyers will tell clients that each case needs to be looked
at on its own facts and Mr Dean’s case is a clear illustration
of that.

There were several unusual subjective factors which helped Mr
Dean in his application. The first was that Mr Dean had continuous
service for approximately 27 years with Rex airlines.

The second was that he held employment as a captain with Rex and
his employment was regarded as unimpeached. He received an
outstanding achievement award, and his service was described by his
employer as dedicated service.

Perhaps the most distinguishing factor is that Mr Dean had
ultimately (although not within the time suggested in Rex’s
policy) became fully vaccinated.

The facts

Mr Dean was employed as a captain by Rex. He had a long period
of services indicated above. Rex introduced a policy requiring
staff members to be fully vaccinated by 1 November 2021. The policy
provided that it was a reasonable and lawful direction and that if
not followed disciplinary action up including termination may
result.

Mr Dean had reservations concerning the then available COVID-19
vaccinations and indicated that he was concerned about possible
side effects as one of his friends had died after receiving a
COVID-19 vaccination.

Mr Dean expressed the hope that he could be given other duties
(amongst other things working on a flight simulator). He asked that
the time for him to be vaccinated be extended and the evidence
disclosed that Rex apparently considered this request but
ultimately dismissed him.

It was concluded that Rex’s policy was a reasonable and
lawful direction and that Rex had a valid reason for termination of
Mr Dean’s employment.

She further held that Rex had not complied entirely with
procedural fairness considerations and that ultimately the
dismissal was unfair.

The Commissioner reinstated Mr Dean to his employment and
further ordered that Mr Dean have continuity of service but did not
order that Mr Dean recover lost pay during the period from
termination until his reinstatement.

Lessons from the case

One of the principal lessons from the case is that each decision
to terminate an employee needs to be looked at individually. Rex
apparently dismissed several other employees. It appears that 17
other claims for unfair dismissal were lodged but ultimately
discontinued. Mr Dean’s case is an exceptional case and the
some of the important factors include his lengthy period of service
and the fact that he subsequently has become vaccinated. It is not
a case of universal application. It also remains to be seen if the
employer will appeal from the decision.

The message for employers is to look at each case individually.
A hard and fast rule can be the subject of criticism. Some leeway,
particularly for long-term employees, is appropriate.

Here is a link to the case [2022] FWC 1448

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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