The recent decision Jovcic and Markovic v Coopers Brewery LimitedI once again pointed out that employees can be terminated for failing to comply with a COVID-19 vaccination policy. However, this app appears to be the first to challenge the accuracy of the official Australian Immunization Technical Advisory Group (ATAGI) advice regarding the effectiveness of the COVID-19 vaccine. The Commission found this argument unconvincing and also made an important point, namely that employers can contravene occupational health and safety (W&S) against immunocompromised employees by failing to require vaccination as a condition of entry to the workplace. This decision is also unique in that the requirement to be vaccinated to report to work was exclusively imposed by an employer policy, rather than a public health directive.
On January 21, 2022, two employees were terminated from their jobs with the employer for non-compliance with the employer’s COVID-19 vaccination policy (Politics), which made vaccination against COVID-19 a condition of entering the workplace. The employees initiated unfair dismissal proceedings with the Fair Work Commission.
The plaintiffs argued that the dismissal was unfair and lacking just cause because the order to comply with the policy was unreasonable. They claimed that the policy was not appropriate on the grounds that the employer had relied on the advice of ATAGI, in particular that vaccination helps to prevent transmissionof COVID-19, when formulating the policy. The plaintiffs relied on the expert testimony of Dr. Petrovsky, who testified to extensive experience and expertise in vaccine research. Dr. Petrovsky argued that ATAGI’s advice was, at least in some respects, incorrect. The petitioners further suggested that the order to comply was unreasonable because of their objections to being vaccinated due to their Serbian Orthodox religious beliefs.
An employee’s failure to follow a lawful and reasonable direction would provide the employer with just cause for dismissal. Therefore, the most contentious point in this case was whether the order to comply with the policy was legal and reasonable.
The legal instruction is one that does not involve any illegality and falls within the scope of the employment contract. The Board found that the direction fell within the scope of the plaintiff’s employment contracts because it was intended to protect occupational health and safety and the continuity of business operations. Moreover, the instruction did not involve any illegality. The Board also found that the employer had complied with its legal obligations to consult with the applicants and other employees about the policy. The evidence showed that the employer consulted employees about the proposed policy to the extent possible. This included a full risk assessment and a number of opportunities for employees to provide feedback on the proposed policy.
The applicants raised two main arguments when they argued that the direction was unreasonable: science and religion.
Effectiveness of COVID-19 vaccines
The plaintiffs claimed that the policy’s main objective of reducing the effect of COVID-19 transmission and making the workplace safer could not be achieved through the policy. They relied on Dr. Petrovsky’s evidence which indicated that current COVID-19 vaccines do not prevent infection and therefore suggested that the policy was based on an incorrect factual premise. The Commission expressly rejected this claim, saying that ATAGI is an expert body with expert members from across the country, which provides evidence-based advice on the administration of vaccines. Testimony from a panel of many experts operating with government endorsement was found by the Commission to be far more persuasive than a single expert witness. The Commission concluded that it was entirely reasonable for the employer to rely on the advice of ATAGI when developing and implementing the policy.
The Board also rejected the argument that the employer, being a large business, should have undertaken or commissioned its own scientific research before deciding to implement the policy. Expecting the employer to have navigated the scientific literature was “unrealistic.”
Another important consideration in concluding that the direction was reasonable was that the employer knew of six employees who had identified themselves as immunocompromised. These employees were particularly susceptible to contracting serious illness or dying from COVID-19. While acknowledging that the employer was unlikely to have breached its WH&S obligations by not imposing vaccination on the entire workforce, the position turned out to be different in regarding immunocompromised employees.
The Commission pointed out that even Dr Petrovsky’s report suggested that COVID-19 vaccines, even if they did not have a significant impact, could have some impact on the transmissibility of COVID-19. The Commissioner said that “even a modest reduction in the risk posed to the lives of the six immunocompromised workers … would weigh reasonably in favor of a decision to implement the policy.’ If the employer had decided not to implement the policy and a vulnerable employee has become seriously ill or has died, they may have been labile for failing to fulfill their WH&S obligations to protect those employees from a clearly identifiable risk.
This is an important consideration for other employers who may consider requiring vaccination as an entry requirement as part of workplace safety management. If an employer knows that certain employees or others are more likely to experience significant and severe consequences from COVID-19, they should consider measures to manage that particular risk.
The business continuity reason for introducing the policy was also considered, as in South Australia, at the time the policy was being considered, unvaccinated people were subject to more restrictive isolation requirements.
The religious beliefs of the applicants
The Plaintiffs’ second ground for arguing that the direction was unreasonable was that they told their employer that getting the COVID-19 vaccine was against their religious beliefs, claiming it was unfair to the employer to deny them an exemption on religious grounds. However, the Board once again disagreed, stating that the employer took the candidates’ concerns seriously. Recognizing that there are circumstances where it will be unreasonable to require workers to choose between their beliefs and their work, it was concluded that there is good reason to do so here.
Other Reasonableness Factors
Some other factors considered by the Commission were that candidate roles could not be filled from home and that there were no alternative roles available that could be filled in isolation from other employees.
The first applicant stated that he was not given the opportunity to use his seniority, annual or sick leave, although he did not ask the employer to take such leave. The Board found that the employer was under no obligation to provide such alternatives to compliance with the policy in the absence of any request.
The second claimant said he offered to wear a mask and pay RTW three times a week, but the Board found that the employer reasonably came to the conclusion that these measures were not sufficient.
The general context supported the conclusion that the instruction to comply with the policy was reasonable. The policy was deemed reasonable because:
- it aligned with ATAGI and government advice;
- it was aimed at the welfare of all workers on the site (especially those known to be immunocompromised);
- it served the legitimate business interests of business continuity;
- it was only implemented after appropriate consultation (including, relevantly, an externally reviewed risk assessment and multiple and different opportunities for employees to be heard on the proposed policy); and
- it was developed in the circumstances existing at the end of November 2021, in particular the opening of the South African borders which would inevitably lead to an increase in cases.
The Commission found that there were two valid grounds for dismissal: failure to comply with a lawful and reasonable instruction; and that the claimants were unable to fulfill the demands of their role by not being able to enter the workplace.
The fact that the applicants had worked for the employer for 15 and 16 years respectively, that they had genuine religious reasons for not wanting to be vaccinated, and the potential economic pressures they may have felt when deciding between getting vaccinated or losing their jobs, were not enough to cause the Commission to conclude that the dismissals were unfair.
Key points to remember
The Commission’s decision in this case provides useful guidance for employers in implementing and enforcing COVID-19 vaccination policies, including that:
- WH&S obligations may require an employer to take more extensive measures to protect the health and safety of its workers from clearly identifiable risks when the employer knows there are immunocompromised employees.
- The fact that there are opposing views regarding the effectiveness of COVID-19 vaccines is not reason enough to doubt the reliability of ATAGI’s public health advice. ATAGI is an expert advisory body and it is reasonable to rely on its advice when developing and implementing vaccination policy.
- Employers, including large corporations, cannot reasonably be expected to undertake or commission their own scientific research, or obtain their own expert advice, before deciding to implement a mandatory vaccination policy. It is reasonable to rely on government advice to manage the risks associated with the pandemic.
- Employers do not need to offer employees the option of taking long-term, sick, or unpaid leave in lieu of complying with a COVID-19 vaccination policy, at least in the absence of one. employee’s request as an alternative to dismissal.
Each case will be different, and the Commission has been careful to emphasize that its findings in this case relate to the particular circumstances in place for that particular employer (operating in a manufacturing environment), at any given time (the opening of the borders of the status in November 2021), and the particular stage of the pandemic.
I CM 1931
The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.