COVID Update Fair Work Commission: Employers Cannot Fire an Unvaccinated COVID Employee By Warren Strybosch
There has been a lot of talk about whether an employer has the right to fire anyone who does not get vaccinated or has not been vaccinated by a certain date. Basically, you cannot, and all employers should read the Fair Work Commissioners decision regarding this matter. As of the 1st of October, many health employees will have been required to take their first vaccination otherwise they will either lose their jobs or be placed on leave with or without pay. By the 15th of October many other employees across Victoria will have to have their first jab to retain their jobs. Already, we have heard of many employees quitting their jobs rather than having to take the jab whilst some employers are stating their employees cannot work if they do not. One school has seen seven teachers resign just prior to VCE Exams starting. The principal of the private school is finding it very difficult to replace those teachers at such short notice. The issue employers face, over the COVID jab, is a dire one. Do they fire their employees and face potential legal action for unfair dismissal or retain their employees and hope they do not receive a fine from the government? The ruling by the Fair Work Commission [2021] FWCFB 6015 dated the 27th of September, 2021, has stated that it is unlawful for employers to fire any employee on the grounds of that employee not being vaccinated in relation to COVID. The commissioner has, in their ruling, stated that the COVID vaccine is different to other types of vaccines in that those who have been vaccinated can still get COVID and pass COVID on to others. The COVID was never designed to stop people getting COVID or stop the transmission of COVID to others. As such, the commissioner has stated that a better way to manage the health and wellbeing of employees and customers, is to continue to test staff and customers as they enter the business premises. In testing staff, you will be able to determine very quickly who does and does not have COVID. Whereas no testing could still result in vaccinated staff having COVID and passing it on to others.
The Fair Work Ombudsman has publicly stated that employers will need to have a “compelling reason” before requiring vaccinations, and that “the overwhelming majority of employers should assume that they can’t require their employees to be vaccinated against coronavirus”. (emphasis added) Safe Work Australia has publicly stated that “most employers will not need to make vaccinations mandatory to meet their [health and safety] obligations”. (emphasis added) The commissioner has made it very clear that, for most employers, it will be unlawful to fire staff if they choose not to take the COVID vaccine and she made it clear that employers who mandate vaccinations will be liable for any adverse reactions their workers may experience, given this is a foreseeable outcome for some people. For employers, you are damned if you do and damned if you don’t. To read the full decision and comments by the Commissioners go here: www.fwc.gov.au/documents/decisionssigned/html
Support Local, Buy Local, Discover Geelong Do you have photos from a local event or a great story you would like to share?
SEND US YOUR NEWS!
editor@findgeelong.com.au
