A FWC presidential member Deputy President Asbury, has issued a 10-point rebuttal of COVID-19-related arguments put by a sacked unvaccinated worker, to help her to consider whether to proceed with positions likely to be “irrelevant” in her unfair dismissal claim and that have been “emphatically rejected in numerous cases” before the tribunal and courts.
After accepting that the radiographer lodged her claim within time and didn’t need an extension of time, Deputy President Ingrid Asbury said she had reached a stage where she could have the merits determined.
I-Med Radiology dismissed her in December last year, after more than 13 years service, for being unable to fulfil the inherent requirements of her role, due to her failure to comply with the company’s COVID-19 vaccination policy and Queensland’s mandatory vaccination public health orders.
The radiographer attended a December 17 meeting with a doctor and the company’s HR business partner, who told her that I-Med could no longer continue her employment.
They said she would get paid five weeks in lieu of notice. On December 21 the doctor sent the radiographer a letter terminating her employment. The termination date was deemed to be December 21 and not December 17 thus overcoming a late filing argument.
However, Deputy President Asbury noted the follow: The stage that this matter has reached is that the Applicant is now able to proceed to have the merits of her unfair dismissal application determined. The Applicant has not yet put on her full case in relation to why she asserts that her dismissal was unfair. However, my provisional view, is that there are arguments in the Applicant’s Form F2 Application that, if pressed by her at hearing, will be unlikely to succeed, and will likely be irrelevant to the question of whether her dismissal was unfair. To assist the Applicant to make an informed decision about the future conduct of her case, I have provided a link to the Commission’s website in relation to COVID – 19 related cases. In particular, the Applicant should note that, in relation to workplaces which are subject to Government directives:
- “The Fair Work Commission is not a Court and has no power to make a binding declaration about the validity of State or federal legislation including health directives or orders made pursuant to State legislation.
- At the time of the Applicant’s dismissal and to date, Australian Courts have upheld the validity of directives/mandates and public health orders issued by State Governments in response to the COVID-19 Pandemic including requirements that workers in particular settings are vaccinated.
- The argument that directives/mandates and public health orders issued by State Governments are inconsistent with federal law and are invalid because of s109 of the Constitution has been rejected by Australian Courts.
- At the point the Applicant was dismissed, she was subject to the requirements of a Public Health Order issued by the Queensland Government and the Respondent was prohibited by law from allowing her to attend the workplace unless she provided evidence of vaccination.
- A requirement that the Applicant comply with the Public Health Order by receiving a vaccine, to continue to work for an employer, does not involve coercion or forcing the Applicant to participate in a medical trial.
- Incentives to encourage employees to be vaccinated are not coercion.
- The Applicant is entitled to her views about vaccination and to refuse to be vaccinated, but that is a choice and to decline to be vaccinated or provide proof of vaccination pursuant to legal requirements for entry to a workplace, will result in the employee being legally excluded from the workplace.
- While the choice may be difficult, it is nevertheless a choice.
- COVID-19 Vaccinations are approved for use in Australia pursuant to Commonwealth legislation and employers are not required to prove their safety or efficacy to employees or to the Fair Work Commission in the event of a dispute with an employee.
- Employers are not required to lobby Governments to have directives revoked or amended before dismissing employees for non-compliance.”
Deputy President Asbury added: “While I do not go so far as to say that the Applicant’s case lacks reasonable prospects of success, arguments canvassed in her application, which I have summarised above, have been emphatically rejected in numerous cases before Courts and the Commission. While the Applicant is entitled to a hearing of her application, any expectation that such arguments will be entertained by the Commission is misconceived and it is improbable that a different decision will be made in respect of those arguments.”
This list of points will be useful to assist other workers impacted by government directives