An unvaccinated aged care sector worker in Victoria, who was dismissed for incapacity to perform his job, has failed in an unfair dismissal application. In Aucamp v Association for Christian Senior Citizens Homes Inc. [2021] FWC 6669, the Fair Work Commission found that the man’s unwillingness to comply with a Victorian Government vaccination mandate left him with no capacity to perform his job and, as such, his employer had a valid reason to dismiss him.

The facts

Mr Aucamp was employed as a maintenance manager in a retirement village in Victoria.

On 4 October 2021, Mr Aucamp met with his employer (Association for Christian Senior Citizens Homes Inc.) and was told that the Victorian Government would soon be mandating COVID-19 vaccination for specific workers and that the mandate would likely apply to him.

On 7 October 2021, the Victorian Acting Chief Health Officer issued the COVID-19 Mandatory Vaccination (Workers) Directions which obliged the employer not to permit Mr Aucamp to leave home for work on or after 15 October 2021 unless he had received at least one dose of a COVID-19 vaccine, had evidence of a medical contraindication, or had a booking to receive the first dose before 22 October 2021.

The employer promptly sent the public health direction to Mr Aucamp and on 11 October 2021, Mr Aucamp responded by confirming that he would not be vaccinated against COVID-19. Mr Aucamp did not identify any medical contraindication preventing him from being vaccinated.

The employer terminated Mr Aucamp’s employment on 14 October 2021 on the basis that he could no longer lawfully perform his role because of the Acting Chief Health Officer’s direction.

The decision

Deputy President Clancy noted in his decision that Mr Aucamp was dismissed because of his “capacity” and not because of his “conduct”. The Deputy President was satisfied that the termination was not because Mr Aucamp had failed to comply with a direction of his employer as the employer had not issued any direction. Rather, the employer was entitled to conclude that Mr Aucamp would remain unvaccinated beyond 15 October 2021 and, as it would be liable for an offence if it allowed him to attend the premises for work, there was a valid reason to terminate his employment.

Mr Aucamp complained that the termination decision was “too quick”. However, the Deputy President found that Mr Aucamp had sufficient opportunity to consider his position before the termination of his employment. In any event, by the time of the unfair dismissal hearing two months later, Mr Aucamp’s position on vaccination had not changed. The inference is that had Mr Aucamp been given more time to reflect upon the change in public health directions, it would not have made any difference to the outcome.

Implications

This decision confirms that there is likely to be a valid reason for dismissal if a worker:

  • is not vaccinated against COVID-19
  • does not have a valid medical exemption, and
  • cannot perform their role as a result of a public health direction related to their vaccination status.

The outcome of this decision was unsurprising, however, we anticipate that further decisions will be handed down in the coming months concerning COVID-19 vaccine directions issued by governments, and by employers alone, which will involve more complex considerations than in this case. Such cases will provide greater clarity on the limits of government and employer directions to receive COVID-19 vaccinations in order to maintain employment.

Where there is no public health direction mandating vaccination, which is the case in many industries, particularly outside Victoria, an employer will still be able to issue its own direction to employees provided that the direction is “reasonable and lawful”. Whether the direction is lawful and reasonable will depend on the specific circumstances and will require analysis of the parties’ rights and obligations under any employment contract, policy, industrial instrument or statute.

Last month, the Full Bench of the Fair Work Commission held that an employer’s policy that workers must be vaccinated before entering the Mt Arthur coal mine was unreasonable because the employer had not complied with its consultation obligations under relevant occupational health and safety legislation before making the decision. However, the Full Bench also stated that if those consultation obligations had been met, there was a strong case in favour of a conclusion that the direction was reasonable. You can read our summary of the Mt Arthur Coal decision here.

In three separate decisions last year, workers that were not vaccinated against influenza failed to establish that their dismissal was unfair. Those workers worked in the aged care, disability and child care sectors. The Commission relevantly decided:

  • in the cases of Glover v Ozcare [2021] FWC 2989 and Barber v Goodstart Early Learning [2021] FWC 2156, the employee’s non-compliance with the employer’s reasonable and lawful direction was a valid reason for dismissal
  • in the case of Kimber v Sapphire Coast Community Aged Care [2021] FWC 1818 (and upheld on appeal [2021] FWCFB 6015), the employee was unable to perform the inherent requirements of her job as she could not enter the workplace while unvaccinated.

With public health directions regarding vaccinations still in place, and the Omicron variant growing in the community, mandatory vaccinations will remain a part of the industrial landscape for some time to come. However, this case has provided greater clarity on this issue for both employees and their employers.