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Reasonable to rely on ATAGI: Fair Work Commission considers reasonableness of workplace vaccination policy in an unsuccessful unfair dismissal application – Employee Rights/ Labour Relations



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The recent decision in Jovcic and Markovic v Coopers
Brewery Limitedi has once again highlighted that
employees can be dismissed for failure to comply with a COVID-19
vaccination policy. However, this application appears to be the
first to challenge the correctness of official Australian Technical
Advisory Group on Immunisation (ATAGI) advice
concerning COVID-19 vaccine efficacy. The Commission found this
argument uncompelling, and also emphasised an important point that
employers may be in breach of workplace health and safety
(WH&S) duties to immunocompromised employees
by failing to require vaccination as a condition of entry to the
workplace. This decision is also unique in that the requirement to
be vaccinated to attend for work was exclusively required by an
employer policy, rather than a public health
directive.

On 21 January 2022, two employees were dismissed from their
employment with the employer for a failure to comply with the
employer’s COVID-19 vaccination policy
(policy), which made vaccination against COVID-19
a condition of entry to the workplace. The employees commenced
unfair dismissal proceedings in the Fair Work Commission.

The applicants argued that the dismissal was unfair and lacked a
valid reason, because the direction to comply with the policy was
not reasonable. They claimed that the policy was not suitable on
the basis that the employer had relied on ATAGI’s advice,
including that vaccination helps prevent the transmission
of COVID-19, when formulating the policy. The applicants relied on
the expert evidence of Dr Petrovsky, who attested to an extensive
background and expertise in vaccine research. Dr Petrovsky argued
that ATAGI’s advice was, at least in some respects, incorrect.
The applicants further suggested that direction for them to comply
was unreasonable due to their objections to becoming vaccinated on
the grounds of their Serbian Orthodox religious beliefs.

An employee’s failure to follow a lawful and reasonable
direction would provide an employer with a valid reason for
dismissal. Consequently, the most contentious point in this case
was whether the direction to comply with the policy was lawful and
reasonable.

Lawfulness

A lawful direction is one that involves no illegality, and falls
within the scope of the employment contract. The direction was held
by the Commission to be within the scope of the applicant’s
employment contracts because it was directed at protecting
workplace health and safety, and the continuity of business
operations. Further, the direction involved no illegality. The
Commission also considered that the employer had complied with its
legal obligations to consult with the applicants and other
employees about the policy. The evidence showed that the employer
consulted with employees about the proposed policy as far as
reasonably practicable. This included a fulsome risk assessment,
and a number of opportunities for employees to provide their views
on the proposed policy.

Reasonableness

The applicants raised two main arguments when contending that
the direction was unreasonable: science and religion.

Effectiveness of the COVID-19 vaccines

It was claimed by the applicants that the primary purpose of the
policy, to reduce the effect of COVID-19 transmission and make the
workplace safer, could not be achieved through the policy. They
relied on Dr Petrovsky’s evidence which stated that current
COVID-19 vaccines do not prevent infection, and consequently
suggested that the policy was based on an incorrect factual
premise. The Commission expressly rejected this contention,
affirming that ATAGI is an expert body comprised of expert members
from around the country, which provides evidence-based advice on
the administration of vaccines. The evidence of a panel of numerous
experts operating with government endorsement was found by the
Commission to be far more compelling than a single expert witness.
The Commission concluded that it was plainly reasonable for the
employer to rely on ATAGI’s advice when developing and
implementing the policy.

The Commission also rejected the argument that the employer,
being a large corporation, should have undertaken or commissioned
its own scientific research before deciding to implement the
policy. Expecting the employer to have navigated the scientific
literature was “unrealistic.”

Another important consideration in finding the direction
reasonable, was that the employer knew of six employees who had
identified themselves as being immunocompromised. These employees
were particularly susceptible to serious illness or death from
COVID-19. While acknowledging that it was unlikely that the
employer would have failed to meet its WH&S obligations by not
mandating vaccination in regard to the general workforce, the
position was found to be different in relation to immunocompromised
employees.

The Commission pointed out that even Dr Petrovsky’s report
suggested that COVID-19 vaccines, even if it is not a significant
impact, could have some impact on the transmissibility of
COVID-19. The Commissioner stated that ‘even a modest
reduction in the risk posed to the lives of the six
immunocompromised workers … would reasonably weigh in favour of a
decision to implement the policy
.’ Had the employer
decided not to implement the policy and a
vulnerable employee became seriously unwell or died, they may have
been labile for failing to meet their WH&S duties to protect
these employees from a clearly identifiable risk.

This is an important consideration for other employers who may
be considering whether to require vaccination as a condition of
entry as part of managing safety in the workplace. If an employer
is aware that particular employees or others are more susceptible
to significant and serious consequences of COVID-19, an employer
must consider measures to manage that particular risk.

The business continuity reason for introducing the policy was
also considered, because in South Australia at the time the policy
was being contemplated, unvaccinated individuals were subject to
more restrictive isolation requirements.

The applicants’ religious beliefs

The applicants’ second ground for arguing the direction was
not reasonable was that they had told their employer that becoming
vaccinated against COVID-19 was contrary to their religious
beliefs, contending that it was unfair for the employer to deny
them an exemption on religious grounds. However, the Commission yet
again disagreed, stating that the employer took the applicants’
concerns seriously. Acknowledging that there are circumstances
where it will be unreasonable to require workers to choose between
their beliefs and their work, there was found to be a good reason
to do so here.

Other factors informing reasonableness

Some further factors considered by the Commission were the
applicants’ roles could not be performed from home, and there
were no alternative roles available that could be completed in
isolation from other employees.

The first applicant said he was not given an opportunity to use
his long service, annual or sick leave, despite not making a claim
to the employer to take such leave. The Commission found that the
employer was not obligated to offer such alternatives to compliance
with the policy in the absence of any request.

The second applicant said he had offered to wear a mask and pay
for RATs three times a week, but the Commission concluded that the
employer reasonably reached the conclusion that these measures were
not sufficient.

The overall context supported the conclusion that the direction
to comply with the policy was reasonable. The policy was found to
be reasonable because:

  • it aligned with ATAGI and government advice;

  • it was directed at the wellbeing of all workers on site
    (especially those known to be immunocompromised);

  • it served the company’s legitimate interests in business
    continuity;

  • it was only implemented after proper consultation (including
    relevantly, an externally reviewed risk assessment, and multiple
    and different opportunities for employees to be heard on the
    proposed policy); and

  • it was developed in the circumstances existing in late November
    2021, including the opening of SA borders which would inevitably
    lead to an increase in cases.

Conclusion

The Commission found that there were two valid reasons for
dismissal: failure to comply with a lawful and reasonable
direction; and that the applicants were unable to perform the
inherent requirements of their role by not being able to enter the
workplace.

The fact that the applicants had worked at the employer for 15
and 16 years respectively, that they had genuine religious grounds
for not wanting to be vaccinated, and the potential economic
pressures they may have felt when choosing between becoming
vaccinated or losing their jobs, was not enough to sway the
Commission into finding the dismissals unfair.

Key Takeaways

The Commission’s decision in this case provides useful
guidance for employers in implementing and enforcing COVID-19
vaccination policies, including that:

  • WH&S duties may require an employer to take more extensive
    measures to protect the health and safety of its workers from
    clearly identifiably risks when the employer knows there are
    immunocompromised employees.

  • The fact that there are opposing views regarding the
    effectiveness of COVID-19 vaccines is not a sufficient reason to
    doubt the reliability of ATAGI’s public health advice. ATAGI is
    an expert advisory body, and it is reasonable to rely on their
    advice when developing and implementing a vaccination policy.

  • Employers, including large corporations, cannot realistically
    be expected to undertake or commission their own scientific
    research, or obtain their own expert advice, before deciding to
    implement a mandatory vaccination policy. It is reasonable to rely
    on government advice in managing the risks associated with the
    pandemic.

  • Employers do not need to offer employees the option to take
    long service, sick or unpaid leave instead of complying with a
    COVID-19 vaccination policy, at least in the absence of an employee
    request as an alternative to dismissal.

Each case will be different, and the Commission was careful to
highlight that its findings in this matter relate to the particular
circumstances in place for this particular employer (operating in a
manufacturing environment), at the particular time (the opening of
State borders in November 2021), and the particular stage of the
pandemic.

Footnote

i[2022] FWC 1931

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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