Summary
A Risk and Compliance manager at an all-girls grammar school was dismissed for her failure and refusal to meet the vaccination deadline which the school required of all employees prior to conducting face-to-face classes. When the grammar school sent her an allegations letter, instead of responding, the risk and compliance manager asked for a risk assessment. The manager was sacked in light of the approved Covid-19 vaccines and the public health orders.
Refusing to be vaccinated results in an employee being unable to perform duties and makes her termination valid
A compliance manager began working for an all-girls grammar school on 20 January 2021. Her duties included performing risk management, compliance and policy and workplace health and safety assessments in addition to organisational responsibilities. She was part of the school’s Covid-19 Management Committee.
Vaccination mandate for all education workers
The state’s Chief Health Officer issued a mandatory vaccination order for all education workers who are employed by an education operator to work in an education facility within the state. The deadline for compliance with the vaccination directive was 18 October 2021. On this date, all education workers must have obtained the first dose of a Covid-19 vaccine and be fully vaccinated by 29 November 2021. After that date, any education worker who remained unvaccinated, and who did not have a medical exemption, would not be allowed to enter or remain on the school premises for the purpose of working at the school.
Notified of the requirement to be vaccinated
On 22 September 2021, the principal of the grammar school sent the compliance manager an email setting out the requirement of the state Health Department that all education workers be vaccinated. It notified all its employees that they will be required to provide proof of vaccination (at least with the first dose) or proof of having been booked to receive the first dose by 25 October 2021. And by 28 November 2021, all workers will be required to submit proof of having received their second vaccine dose.
Consequences of failing to comply with vaccination directive
Any education worker who was not exempt but chose not to be vaccinated must immediately notify the Human Resources manager by 15 October 2021. If the education worker was neither exempt nor compliant with the vaccine mandate, they would not be allowed to attend the school to perform their work duties.
The education worker might apply for alternative arrangements at the discretion of the school: either the education worker would be provided with additional time to obtain the required vaccine doses, or the worker might be allowed to take accrued annual or long service leave. These arrangements were at the sole discretion of the school. Non-compliance with the vaccine directive may be subject to disciplinary action including dismissal because the school would not support work from home arrangement when on-site face-to-face classes were taking place.
Refusing to be vaccinated with available vaccines, waiting for “safer” vaccine
The compliance manager communicated with the Human Resources manager and expressed her concerns with the safety of the vaccines currently available. She expressed her desire to wait for the Novavax vaccine to be available as she considered the Novavax vaccine to be safer than the Pfizer, Moderna or other vaccines.
Seeking permission to work from home
She reasoned that her role did not require her to interact with students and she would be able to perform her duties from home. She asked the school for permission to work from home or take leave without pay until she received the Novavax vaccine.
Impossible to fulfil role when working solely from home
On 11 October 2021, the school replied that they cannot give the compliance manager an exemption and if she had concerns about vaccine safety, she needed to speak with her doctor. The school warned her that it could not allow her to wait for the Novavax vaccine as it would render the school non-compliant with the health directive. If she had neither a valid medical contraindication or proof of vaccination, she would not be allowed to enter the school premises on 18 October and she would be placed on unpaid leave or accrued annual leave in lieu of unpaid leave.
Unable to attend workplace, placed on unpaid leave
In a meeting on 12 October 2021, the compliance manager was given until 15 November 2021 to get a vaccine and if she’d obtained two doses by that time, she would be allowed to return to work. In the meantime, the compliance manager was allowed to work from home until 25 October 2021 and then, on 26 October 2021, when face-to-face classes at the school began, the compliance manager would be placed on unpaid leave until 15 November 2021.
Warned of possible termination if employee persisted in non-compliance
On 8 November 2021, the principal met with the compliance manager to inform her that working from home while she waited for the Novavax vaccine was no longer an option. The principal then informed her that if she had not complied with the policy by 15 November 2021, she would receive a letter of dismissal.
On 12 November 2021, the compliance manager emailed the school asking for a copy of the school’s Covid-19 vaccination risk assessment. The school never conducted a risk assessment for Covid-19 vaccinations.
Terminated from employment
The compliance manager was terminated on 15 November 2021 for having failed to comply with the public health vaccine mandate that resulted in her being unable to perform her duties. The school was left with no other option other than to terminate her employment.
Application for unfair dismissal
The compliance manager filed an application for unfair dismissal arguing that she should not have been dismissed because the public health direction did not prohibit unvaccinated education workers from performing their roles by working from home. In fact, she had spent 16 weeks working from home during the lockdowns. She was able to interact with staff through zoom meetings and telephone calls. During the lockdowns, she only attended the school site occasionally to inspect buildings and facilities.
Role of compliance manager required attending school premises
The Fair Work Commission found that the compliance manager was not vaccinated at any time prior to her dismissal at work or until she lodged her application for unfair dismissal. The job description in her employment contract did not expressly state that her role was required to be performed on school premises. However, one of the duties of the compliance manager involved checking the children which she would not be able to do without attending the school premises. Thus, some aspects of her role needed to be performed onsite and could not be performed from home.
Work from home arrangement was an emergency arrangement only
While it was true that she had worked from home during the lockdowns, this was due to the fact that the students and staff were not in the school. And as soon as the lockdowns ended, she was required to return to working on site to perform her duties. The lockdowns were emergency arrangements and exceptional circumstances. Even during the lockdowns, maintenance staff performed some of the duties of the compliance manager as she could not attend the school.
Public Health Orders are lawful, compliance is mandatory
The public health directive mandating vaccination was a lawful order that must be complied with. Even if her employment contract did not contain provisions requiring her to be vaccinated in order to perform her duties, the public health directive supersedes her employment contract as its issuance was an exercise of the state’s emergency powers.
Reason for her termination was valid
The FWC inferred that the compliance manager was neither ready, willing or able to perform the requirements of her role as compliance manager by refusing to be vaccinated and this is a valid reason for her termination.
Compliance manager provided with procedural fairness
She had been sufficiently notified that her employment was in danger of being terminated if she failed to comply with the public health directive just as she had been notified of the valid reason for her dismissal. The many emails between the school principal and the compliance manager showed that she was given ample opportunity to respond to the reason for her dismissal. The dismissal was neither harsh, unfair nor unreasonable. The application was dismissed.
Source:
Kathryn Roy-Chowdhury v The Ivanhoe Girls’ Grammar School [2022] FWC 849 (12 April 2022) http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FWC/2022/849.html
