All Things Newz
Law \ Legal

Using his own words against him: How a complete refusal to comply with an employers vaccination policy regardless of its contents can justify termination without notice – Health & Safety



To print this article, all you need is to be registered or login on Mondaq.com.

A recent decision1 has demonstrated that
a dismissal for refusal to be vaccinated against COVID-19, in the
absence of a Government direction can be found to be fair. In this
case, the worker’s absolute refusal, coupled with his demand
that his employer make a final decision regarding his employment
immediately, was grounds for termination without notice, and
constituted wilful misconduct.

Background

Mr Matthew Colwell was employed by Wellways Australia, until his
employment was terminated on 18 December 2021. His employment was
terminated on the grounds that he failed to comply with a policy
requirement that he be vaccinated against COVID-19. Mr Colwell made
an application under s 394 of the Fair Work Act 2009 (Cth)
seeking a remedy for unfair dismissal. In his application, Mr
Colwell claimed that the policy was not subject to proper
consultation, such that a decision to dismiss him for
non-compliance could not be a valid reason for dismissal.

Mr Colwell’s contract of employment specified his place of
work being “Geelong,” and that “while
working for the Company you will be required to comply with company
policies and procedures
.”

On 22 October 2021, Mr Colwell received advice that Wellways
introduced a COVID-19 Vaccination Policy (Policy),
requiring that employees not subject to a Government direction
receive their first dose of a COVID-19 vaccine by 31 December 2021,
and a second dose by 11 February 2022. Refusal to provide evidence
of vaccination status would be deemed to be a breach of the Policy.
The Policy advised that staff members may be subject to
disciplinary action for non-compliance. The Policy also stated that
managers would work with staff who were not compliant to understand
their rationale, and to ensure the employee was aware of the
implications of non-compliance.

On 4 November 2021 Mr Colwell received an email enquiring as to
his vaccination status. He replied that his “role is not
impacted by the current Victorian mandate directive
” and
that he had “no intention of sharing his personal medical
information
.” Mr Colwell was informed that he had only
been working from home due to the pandemic, that he would be
directed to return to the office, and that he could not
unilaterally vary his work location.

On 15 December, Mr Colwell sent an email stating that:

I have no intention of receiving a covid vaccine
before 31 December regardless of what policies Wellways feels they
have the right to impose on people.”

“You don’t have to wait till after that date start
whatever procedure you need to, as this decision is
final
.”

On 11 January 2022, Mr Colwell received a “show cause”
letter indicating that he had failed to provide evidence of
compliance with the Policy, and that Wellways had formed a
preliminary view that his employment should be terminated for
inability to fulfil the inherent requirements of his job. He was
provided an opportunity to respond at the subsequent meeting
arranged on 13 January 2022. Mr Colwell received a termination
letter on 18 January 2022.

Was the Policy subject to consultation?

Commissioner Bissett found that there was an opportunity for
employees to comment on the Policy, although it was evident that
Wellways had developed the Policy in a short period of time. She
found that the views of managers, staff and WHS representatives
were considered by management and the Policy was adjusted
accordingly. She noted that there was no evidence that the views of
employees were not considered. Commissioner Bissett was satisfied
that it was reasonable for such a policy to be implemented in a
workforce that was expected to return to the office, and
considering Wellways’ legal obligations in relation to the
health and safety of staff and clients, including the provision of
disability support services. She was specifically satisfied that Mr
Colwell had the opportunity to express is views and they were
considered, and he was provided with a considered position on the
issues he had raised.

Was the reason for the dismissal valid?

Mr Colwell submitted that the reason for dismissal was not valid
while he was not vaccinated, no specific return date to the office
had been set, and his work did not require interaction with others.
Wellways submitted that the direction for employees to be
vaccinated was lawful and reasonable. They further submitted that
Mr Colwell made it abundantly clear that regardless of any
policy prescription he had no intention of having a
vaccine prior to 31 December 2021. Given that he had agreed to
comply with company policies in his employment contract, they
argued that a valid reason for dismissal was provided. The
Commission agreed with the employer’s position.

Other considerations

A meeting was arranged on 13 January 2022 to enable Mr Colwell
to respond to the “show cause” letter. The meeting lasted
only 10 minutes, with Mr Colwell expressing that he had already
said everything he needed to say in his previous emails. He then
contacted his coordinator the following day, asking for the
decision on his termination, requesting that this “not run
into the weekend
.”

Mr Colwell was advised of his termination on 18 January 2022.
There was evidence that, during the video call, he yelled at his
coordinator for not standing up for him.

Commissioner Bissett considered that Mr Colwell’s suggestion
that he could simply work from home, contrary to his employment
contract, was not reasonable, because it was for the employer to
determine appropriate working locations. She found that he
expressed on a number of occasions that he would not at any stage
receive a COVID-19 vaccine. She concluded that, his email of 15
December 2021, which said of the 31 December deadline,
You don’t have to wait till after that date, start
whatever procedure you need to as this decision is
final
,” went against any suggestion of the dismissal
being premature.

The Commission was satisfied that the refusal to comply with the
Policy regardless of its terms amounted to wilful misconduct. She
considered his push for a quick decision despite being told it may
take 5-7 days for a decision, his attempts to unilaterally decide
where he would work, and Wellways obligations to minimise its risk
to its clients, made the dismissal for valid reason-:

She noted in particular:

I accept that it is the Applicant’s choice as to
whether or not he is vaccinated but that choice comes with
consequences, as does every choice we make. The Applicant, in
making the choice he did, was aware of the consequences of the
choice on his employment
.”

Each decision to dismiss an employee is different, but employers
should take note, when going through a similar process, that:

  • Consultation is a key aspect of whether a vaccination policy
    will be found to be reasonable and lawful. This case displays that
    much of this can be done through unions and key WH&S
    stakeholders;

  • The feedback received from employees through consultation does
    not need to be implemented, but merely considered;

  • The employee clearly expressed the view that he would never
    agree to be vaccinated regardless of what the policy stated. This
    justified his dismissal prior to directing a return of staff to the
    office; and

  • The fact that the employee had awareness of the ramifications
    of continued failure to comply with the Policy amounted to wilful
    misconduct. The Commission placed importance on his knowledge of
    consequences, and intention to disregard the Policy.

There can be a number of areas where employers may be tripped
up. If your organisation is in the process of consulting or
implementing a COVID-19 vaccination policy, the Piper Alderman
Employment Relations team can assist.

Footnotes

iMatthew Colwell v Wellways Australia
[2022] FWC 1086

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.

Related posts

Time for a health check: Contracting life skills for life sciences – Employee Rights/ Labour Relations

Resignation Or Constructive Dismissal For Failing To Comply With Mask Policy? The Alberta Court Of Queen’s Bench Has Officially Weighed In On The Debate – Employee Rights/ Labour Relations

ATAD 3, QAHC And Why Jersey Structures Work For Both – Sales Taxes: VAT, GST