Right call, wrong time – when does a requirement become inherent?

10 May 2022

The FWC finds that Baptcare Limited had 'prematurely' dismissed an unvaccinated worker by not taking into account his ability to perform his role from home.

In issue

  • Was it unreasonable to dismiss an unvaccinated employee who, while pursuant to Public Health Orders, was unable to perform work onsite, but at the time was only required to work from home?

The background

Mr Marriott was employed as a part-time Customer Service Support (CSS) worker for Baptcare Limited (Baptcare) from 13 May 2019. Like many workers prior to the pandemic, Mr Marriott was at all times required to work out of the physical Baptcare offices in Bundoora. This all changed upon the outbreak of COVID-19, which saw Mr Marriott (and other CSS workers) being directed to work from home from 17 March 2020. This arrangement stayed in place until 24 February 2022.

In September 2021 the Victorian Government put in place the COVID-19 Mandatory Vaccinations (Workers) Directions (No 5) (Public Health Order), which, among other things, required Baptcare to ensure that all relevant workers were vaccinated if they were “scheduled to work outside (their) ordinary place of residence…”

On 1 October 2021, Baptcare advised all its staff that it was a requirement of their employment that they receive a first dose of a COVID-19 vaccine by no later than 15 October 2021 and a second by 26 November 2021. Mr Marriott elected to not be vaccinated, which resulted in a disciplinary process. Subsequently, Mr Marriott was dismissed with effect on 10 November 2021 on the basis that he remained unvaccinated and did not hold a valid exemption. However, the dismissal occurred before Baptcare required CSS workers to return to the office. That is, at the time of dismissal, Baptcare did not require CSS workers (including the Applicant) to work “outside their ordinary place of residence”.

Mr Marriott made an unfair dismissal application to the Fair Work Commission.

At the hearing, Baptcare argued that there were two distinct reasons for dismissal; being misconduct stemming from the refusal to obey the Public Health Order and Mr Marriott being unable to perform the inherent requirements of his role.

Mr Marriott asserted that the dismissal was unfair as he had minimal face to face interaction as a part of his normal duties, as was evidenced by him working from home almost exclusively from March 2020 until his dismissal.

The decision at hearing

It was held by Commissioner Johns that the “termination of the Applicant’s employment on 10 November 2021 was premature”, and accordingly the dismissal was rendered unfair.

Commissioner Johns acknowledged the array of decisions within the FWC which have seen the confirmation that an employee’s failure to comply with the requirements of a public health order formed a valid reason for a dismissal. The Commissioner found, however, that what distinguished this case from others before it, was the absence of a requirement for staff of Baptcare to attend in person (at the time of the dismissal), together with the specific wording of the Public Health Order. The evidence adduced at the hearing confirmed that Baptcare did not require or schedule any north/west CSS employee (including Mr Marriott) to attend in person for work until 24 February 2022.

As the relevant provision of the Public Health Order only related to workers who “may be, scheduled to work outside the worker’s ordinary place of residence”, the Commissioner concluded that because, at the time of the dismissal, Mr Marriott was not scheduled to work outside his ordinary place of residence by Baptcare and because his work could be performed entirely from home, there was no reason why he could not meet the inherent requirements of the role. Due to this, the Commissioner found there to be no valid reason for the dismissal.

In articulating this, the Commissioner emphasised that timing was key, finding that had the dismissal occurred on 24 February 2022 or at some earlier if Baptcare had required CSS workers to return to the office in person, he would have dismissed the unfair dismissal application.

Notably, despite the dismissal being held to be unfair, no compensation was awarded for Mr Marriott given that he had mitigated his full loss to the point where he was in fact $1,351.25 better off.

Implications for you

This matter highlights the importance of timing, precision and context when seeking to rely on either Government mandated directions or internal vaccination policies to dismiss an employee. As demonstrated in this matter, employers need to properly examine an employee’s role and the organisation’s associated requirements for the role in view of the specific wording of the mandate or policy being relied on.

Furthermore, as government vaccination mandates continue to be scaled back, it will be critical for employers seeking to maintain a vaccinated workforce, to have clear policies that consider the various nuances of their particular workforce. Considering this, there is no “one size fits all” and a policy may have different requirements for different parts of a single organisation’s workforce considering the inherent requirements of various roles.

Mr Alexander James Marriott v Baptcare Limited [2022] FWC 300 (28 April 2022)

Looking for more information about mandatory COVID vaccinations in Australia? Check out our JabWatch page here.

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