Australia: Worker dismissal for protesting against vaccine mandates was lawful, Fair Work Commission finds

The Fair Work tribunal has upheld a company's decision to immediately terminate a construction industry worker after he attended rallies in Melbourne outside the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) office in the CBD. 

The Fair Work Commission (FWC) ruled that although the mobile crane operator's dismissal was “warranted,” a lack of notice to the employee was “harsh.”

The man (whose name has been withheld) was fired after attending rallies in Melbourne in September last year, during which thousands of construction workers took to the streets to protest vaccination mandates and other pandemic-related changes to working conditions cross the construction industry, including restricted operations, a proposal that workers work for six hours straight without a break, but be paid for eight and the closure of tea rooms on work sites. 

Prior to the protests, construction sites had been shut down for a fortnight, after a number were traced to Covid19 (Delta) cases. Shortly after sites re-opened, Premier Daniel Andrews announced vaccination mandates and gave workers a week to get their first dose. 

At the time, the industry union, the CFMEU, said that it was not in support of ‘jab for job' policies being pushed by governments or business, but said that it would encourage workers to be vaccinated. The union was also unsupportive of tea rooms being removed from sites, and a rule that was implemented for construction workers that they couldn't eat or drink inside. 

But after several days of protests, angry clashes between police and protestors and escalating violence on the streets in Melbourne, the CFMEU distanced itself from the protests, calling those who were marching the streets “drunken morons.” The CFMEU actively engaged with police to help to identify as many protesters as possible. Workers say the union also ‘pressured' businesses whose workers had been engaged in the protests.

The man's employer determined that he had engaged in “serious misconduct by attending the rally,” by violating stay-at-home government orders. It also said that his attendance “brought the company into disrepute and put it at risk of significant fines.”

The employee told the FWC that he did not commit ‘misconduct' because he was “within his rights to attend the protest” and he steadfastly maintained that although he attended the rally to support fellow workers, he did not engage in any of the violence that erupted between police and protestors. He also argued that violation of the stay-at-home orders was “not work-related but a matter between him and the authorities.”

However, in its decision, the FWC found that the protest was unlawful because it contravened government ‘stay-at-home directions' which were in place at the time, and that therefore the employee was wrong to believe he was ‘within his rights' because he had no such right. 

It also determined that because the protest related to working conditions within the industry, it was considered to be “work-related.” 

The FWC also ruled that the dismissal was a proportionate response by the man's employer, but that he should have been ‘dismissed on notice' and ordered compensation for the period in which the man would have  remained employed if he had been terminated on notice. 

Governments at a state and Federal level have introduced sweeping vaccination mandates in some industries during the Covid-19 pandemic, including construction and healthcare. Individual businesses too have been given the ‘green light' to introduce their own workplace vaccination policies should they wish to do so. 

Under guidelines set out by the Fair Work Commission last year, for employers to introduce a vaccination direction and for it to be enforceable in the workplace, it must be ‘lawful and reasonable'.

The Fair Work Ombudsman and employment lawyers have made clear that whether a direction is lawful and reasonable is “highly fact-dependent”; on other considerations including, but not limited to: 

• Whether a specific law or industry provision requires an employee to receive a certain vaccination or a vaccination for a certain reason/s,
• What conditions or provisions are specified in an existing enterprise agreement or employment contract may be of relevance to the present situation,
• Whether a vaccination direction is discriminatory,
• The nature of the specific place of employment and role of the employee, including the degree of risk to others of not vaccinating,
• Whether remote work options are an alternative
• The subjective circumstances of the employee, including any general or specific risk of receiving a vaccination, and personal beliefs, and
• Whether the reasons for the direction can reasonably be met by alternative means, such as by physical distancing and/or wearing face coverings, and
• The availability of vaccinations. 

Employers must also strive to uphold their duty of care (including the protection of other workers and the workplace) and balance this with an individual's right to choose what they put into their body.

Employers have also been warned that they must consult with employees. Late last year, the FWC found that a decision by mining company BHP to make Covid-19 vaccinations at the Mt Arthur mine in the Hunter Valley compulsory for workers was not lawful or reasonable.

About 50 workers at the coal mine were stood down, reportedly without pay, when they were unable to provide evidence of their vaccination status. At the time, the mining giant was warned that it needed to consult openly and extensively with staff prior to implementing vaccination policies. 

A significant number of industries are now beginning to suffer from serious staff shortages, creating further economic damage, particularly for small businesses, which can be attributed to a combination of factors, including soaring case numbers and those infected with Covid-19 taking extended sick leave as well as the permanent absence of staff who've left jobs because they didn't want to comply with vaccination mandates. 

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