Unvaccinated employee wins unfair dismissal case

Many unvaccinated employees have been losing case after case in the Fair Work Commission (FWC) and Australian courts after losing their jobs when they refused to be vaccinated, however, on 28 April 2022 at the FWC, an unvaccinated employee won his case for unfair dismissal!

The employer introduced a new policy on 1 October 2021 requiring all employees to have their first dose of the COVID-19 vaccination by 15 October 2021.

The employee refused to be vaccinated and the employer terminated the employee’s employment on 10 November 2021 at a time when the employer did not require the employee to work from the office.  The employer subsequently advised its workforce that it would require employees to return to the office on 24 February 2022.

The FWC stated that if the employer had waited until it required employees to attend the office (and that may have been 11 November 2021) then the dismissal would have been justified.

While the employer had been procedurally reasonable and had given the employee opportunities to respond to the potential loss of employment, the employer was applying a policy that did not need to be enforced at the time of making the decision to end the employment of the unvaccinated worker.

The FWC determined the employer did not have a valid reason at the time of termination on 10 November 2021 to end the employment of the unvaccinated employee and for this reason the termination was unfair.

The employee did seek reinstatement but because he remained unvaccinated the FWC decided it was not appropriate to order reinstatement.

The FWC also noted the employee started new employment on 15 November 2021 and was financially better off than if he had stayed with his first employer. So, despite finding the dismissal was unfair, the FWC did not order the first employer to pay any money in compensation.

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