Employee dismissed for taking the COVID 19 vaccine

You’ve probably heard of cases in which employees were dismissed for refusing to take the COVID 19 vaccine, but have you heard of someone being summarily dismissed because they did take the vaccine?

Although the case is publicly available on the FWC website, I do not use the names of any individuals or organisations. 

The Fair Work Commission (the Commission) recently heard a case in which an employee was summarily dismissed from a religious organisation (the employer) when the employer discovered that the employee had received the COVID 19 vaccination.

This case serves as an interesting examination of the complexities inherent in balancing individual autonomy, religious convictions, and workplace obligations.

The employer was a small, alternative, religious organisation.  The employee’s duties involved the sale of cannabis products for medicinal purposes on behalf of the religious organisation to its members.

The employee stated that they were dismissed, without notice or the ability to respond, when they disclosed that they had received a COVID 19 vaccination.

The employer’s argument:

The employer asserted that receiving a COVID-19 “inoculation” was contrary to its constitution and beliefs and that it would not employ anyone who had received any of the current or future “planned injections purported to protect against the COVID-19 / Sars Cov 2 virus”.

A representative of the employer explained the organisation's opposition to COVID-19 vaccinations, citing concerns about governmental restrictions and perceived health implications. The employer argued that unlike traditional vaccinations, COVID-19 injections are deemed ineffective and foreign to the human body's molecular structure. They expressed their belief that COVID-19 vaccinations are ineffective and even considered them as "poison". They maintained that individuals advocating for vaccination are engaging in criminal activities.

In 2021, when the employer learned that members and volunteers may have received the vaccine, the employer announced that they were prohibiting “inoculated individuals” from certain roles within the organisation. A directive, via a voice message in a group chat, was issued advising that all full members of the organisation refrain from vaccination, and contractors and volunteers were also expected to adhere to this directive.

The employer asserted that despite being aware of the employer's stance on COVID-19 vaccination, the employee chose to receive the vaccine.  The employer stated that they had concerns about potential liabilities associated with vaccinated contractors, as the employer feared that they could jeopardise their clients’ health.

The employer argued that the employee was fully aware of their stance on COVID-19 vaccination and despite this awareness they chose to receive the vaccine, prompting concerns about potential liabilities and adverse health outcomes.

The employee’s argument:

The employee maintained that she was never explicitly informed of any vaccination requirements prior to her dismissal. She highlighted the silence of the employer’s constitution on vaccination matters and emphasised her non-membership status in the religious organisation, refuting any obligation to adhere to organisational beliefs.

The employee acknowledged hearing that “there was an issue” about vaccination within the employer’s hierarchy but insisted that she was never directly approached or instructed regarding the employer’s position on COVID-19 vaccination. She adamantly denied being barred from vaccination or facing termination for exercising her right to receive the vaccine.

The employee argued that their decision to receive a COVID-19 vaccination, particularly in alignment with prevailing public health directives, should not warrant termination of employment.

The employee questioned how their decision to be vaccinated could breach any obligation to their employer, especially considering the absence of explicit mention of vaccination in the employer’s governing documents. The employee also highlighted the discrepancy between the employer’s public stance on being "pro-choice" (in relation to vaccinations) and its subsequent termination of her employment for exercising her choice to be vaccinated.

Responding to the employer’s concerns regarding the potential risks associated with physical contact between vaccinated individuals and clients, the employee emphasised the remote nature of her role which did not involve any face-to-face contact. She also noted the absence of proactive communication from the employer regarding its stance on vaccination, despite the prevalent public discourse on the subject at the time.

The Decision

The Commission made it clear that it was not its role to determine whether a stance taken by a religious organisation, in relation to their religious beliefs was rational but rather whether the decision to terminate the employee’s employment was unfair, unjust or unreasonable.

The Commission found that the decision to dismiss was unfair as the employee was terminated prior to the establishment of any documented policy prohibiting vaccinated individuals from working for the employer.

The employer also failed to provide the employee with procedural fairness in the disciplinary process. Despite their attempts to engage in discussion, the employee was met with resistance and ultimately received a dismissal letter without adequate explanation.

The employee was denied the opportunity to properly respond to the reasons for termination.

The employee was ordered to receive financial compensation for the time they went without work as a result of the employer’s decision to dismiss.

At Insight Investigations & Mediation we have a small team of highly experienced investigators who can remove the burden of complex, time-consuming workplace investigations from your organisation. If you need help with a workplace investigation, please reach out.