As Australia goes from “lock down “ to “let it rip” employers may face difficult decisions in relation to the rights and obligations of unvaccinated employees.
Recent Fair Work Commission decisions have generally upheld the rights of employers to dismiss unvaccinated employees who – under Government directions requiring certain employers to allow only vaccinated employees to attend on-site – are unable to perform their role. The situation may be less certain in relation to employers who wish to apply a mandatory vaccination policy not dictated by Government orders.
In the recent decision Ms Karen Lee Cook v St Vincent De Paul Society Victoria [2022] FWC 1440 the Commission accepted as “plausible” the “novel argument” that anti-vaxxers may be protected from discrimination under the protected attribute of social origin.
While the Commission refused to find that the Applicant in this case was in fact discriminated against, the decision turned principally on the fact that:
- The employer had not mandated vaccination. Vaccination was the employee’s choice.
- Government directions prohibited the employer from allowing unvaccinated employees on site.
- The inherent requirements of the employee’s role required her attendance on site.
- The unvaccinated employee was unable to fulfil the inherent requirements of her job.
- The employer therefore had a valid reason for dismissal.
Facts
In October 2022, the employer St Vincent de Paul (SVDP) notified all employees that, under Directions issued by the Victorian Government, employees must be CO-VID-19 vaccinated, unless they were medically exempt or working from home. The Applicant’s role as Duty Manager at SDVP’s “Vinnies” outlets required that she physically attend at SDVP’s retail site/s. The Applicant’s choice not to be vaccinated meant that she could not be allowed on site to work and so could not perform the inherent requirements of her job.
The Applicant argued that she was being discriminated against on the basis of her social origin status as an anti-vaxxer.
Under the general protections provisions of the Fair Work Act an employer must not discriminate against an employee, or prospective employee on the basis of, amongst other things, that person’s social origin.[1] The Fair Work Commission’s General Protections Benchbook defines Social Origin to include: social class, socio-occupational category and caste.
Commissioner Johns accepted that:
- “access to economic, social and cultural capital can define a person’s class position”
- “being an ‘anti-vaxxer’ is a …form of cultural capital”
- “resulting in a class of people that can be considered to fall within the concept of social origin.”
The Commissioner went on, however, to dismiss the Applicant’s complaint.
“In the present matter the Directions, and compliance with them by the Respondent, had an adverse effect of the Applicant because of her social origin status as an anti-vaxxer. However, the Directions, and compliance with them by the Respondent was not unreasonable. Consequently, the Applicant was not subject to unlawful discrimination. There remained a valid reason for her dismissal.”
Cultural Capital and Social Origin
Cultural capital has been defined as: “The distinctions that develop between individuals and groups due to differences in access to education, family background, occupation, and wealth, giving them advantages and serving as a signifier of an individual’s status within a group or society.”[1] A recent study has suggested that about 22 percent of Americans self-identify as anti-vaxxers, and tend to embrace the label as a form of social identity.[2]
While the argument that the definition of social origin may extend to include those identifying as anti-vaxxers may face future challenge, it is also worth remembering that, in the absence of government orders, an employer’s decision to disallow unvaccinated employees to attend for work will depend on what is reasonable, in the circumstances.
Reasonable direction and consultation
Guidance as to the reasonableness of a vaccination requirement was provided by the full bench of the Commission in the December 2021 decision Construction, Forestry, Maritime, Mining and Energy Union, et al v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal. While the full bench determined that BHP’s push to mandate vaccines at its Mt Arthur coal mine was not reasonable, the decision was narrowly based on the company’s failure to consult in accordance with the requirements of the Queensland Work Health and Safety Act 2011. The decision helpfully listed a range of considerations which otherwise weighed in favour of a finding that the site access vaccination mandate was reasonable, including that:
- It was directed at ensuring the health and safety of workers of the Mine.
- It had a logical and understandable basis.
- It was a reasonably proportionate response to the risk created by COVID-19.
- It was developed having regard to the circumstances at the Mine, including the fact that Mine workers cannot work from home and come into contact with other workers whilst at work.
- The timing for its commencement was determined by reference to circumstances pertaining to NSW and the local area at the relevant time.
- It was only implemented after Mt Arthur spent a considerable amount of time encouraging vaccination and setting up a vaccination hub for workers at the Mine.
Further that:
Had the Respondent consulted the Employees in accordance with its consultation obligations − such that we could have been satisfied that the decision to introduce the Site Access Requirement was the outcome of a meaningful consultation process – the above considerations would have provided a strong case in favour of a conclusion that the Site Access Requirement was a reasonable direction.
[1] Fair Work Act 2009, s351.
[1] Open Education Sociology Dictionary
[2] Psychology, June 6, 2021
