Mandatory Vaccination & Employment: lessons from managing anti-vaxxers in schools
Last year, we saw many State and Territory governments issue Public Health Orders that required employees in schools and other sectors to be vaccinated against COVID-19.
While the precise wording differs, these vaccination orders placed certain workers under a legal obligation not to work unless they were fully vaccinated (or had a medical contraindication which did not allow them to be vaccinated). Employers, including schools, were generally obliged to use reasonable efforts to prevent unvaccinated workers from attending work and, in some cases, to keep vaccination records.
During 2021, vaccination orders that affected schools and teachers were put in place in New South Wales, Victoria, South Australia, the Northern Territory and the Australian Capital Territory.
Queensland, Tasmania and Western Australia initially delayed issuing vaccination orders.
However, in November 2021, Queensland and Western Australia mandated vaccination for teachers who were returning to work in 2022, providing a deadline for teachers to be fully vaccinated by 23 January 2022 and 31 January 2022, respectively.
Tasmania introduced a vaccination mandate for early childhood facilities that took effect in January 2022. There are also vaccination orders already in place in Tasmania for those who work with children with disabilities (teacher assistants and education support specialists). All Tasmanian Department of Education Staff (including its teachers) must also have been vaccinated by the time classes returned on 9 February 2022. However, there is still no vaccination order in place that applies to teachers and other staff at independent schools in Tasmania.
Termination of employees where there is a vaccination order in place
Following the vaccination orders, many unvaccinated teachers were told by their employers that their employment had been ‘frustrated’, meaning that their employment contract ended as a matter of law. The argument is that, where teachers are not lawfully able to work at a school (and this situation is expected to continue for some time), it is essentially ‘impossible’ for them to work.
Where the employment contract is frustrated, the employer does not (and should not) take action to terminate the employment. Instead, the employer should write to employees to advise them that the employment contract has come to an end as a matter of law. No notice is required as this is not a termination at the employer’s initiative.
Teachers who claim they have been unfairly dismissed, or bring an adverse action claim relating to dismissal, who were not ‘dismissed’ (as their employment was frustrated) will face a jurisdictional objection in the Fair Work Commission before the Commission will hear their complaint.
Unfortunately, whether the vaccination orders did have the effect of frustrating the employment contracts of unvaccinated workers is not settled, as it has not yet been tested in a hearing at the Commission or in the Federal Court.
Other employees were advised that their employment had been terminated as they were unable to meet the inherent requirements of their role. In this case, the employer must give notice to the teacher, or pay salary instead of notice, as it is taking positive action to terminate the teacher.
The Fair Work Commission has been clear that, where there is a vaccination order in place and a worker (without a medical contraindication) refuses to be vaccinated, the teacher is unable to fulfill the inherent requirements of their position.
In one case in 2021, the Fair Work Commission found that a worker’s unwillingness to comply with a Victorian Government COVID-19 vaccination mandate left him with no capacity to perform his role. The worker’s refusal to be vaccinated was a valid reason for dismissing him, although the employer was still required to treat him fairly and engage with him during the process.
Termination of employees where there is no vaccination order in place
Lawful and reasonable direction
The Fair Work Commission has also recently determined (in decisions relating to the influenza vaccine) that, where a vaccination order is in place and an employer has a policy requiring workers to be vaccinated, this requirement will be a lawful and reasonable direction. Workers who refuse vaccination (without a medical contraindication justifying the refusal) may be dismissed for failure to comply with the direction.
However, where there is no vaccination order in place (such as in Tasmanian independent schools), an employer may still be able to issue a direction to employees to be vaccinated, provided the employer can demonstrate that the direction is lawful and reasonable. This is assessed on a case-by-case basis and depends on the specific circumstances at the time, including the individual worker’s circumstances.
Employers must also consider their obligations under the employment contract, legislation and any enterprise agreement or Modern Award that applies. In particular, employers must consult with employees (under Work Health and Safety legislation, as well as applicable industrial instruments) or it is likely that the mandatory vaccination direction will not be reasonable.
In the 2021 Mt Arthur Coal case, the Fair Work Commission dealt with a dispute raised by mining workers and their union regarding a mandatory vaccination policy. Ultimately, the Commission determined that the vaccination policy was likely to have been considered reasonable, but for the failure of the employer to engage and consult with workers before implementing the policy.
Schools should get legal advice if they are considering requiring COVID-19 vaccinations in their workplace, where there is no vaccination order in place.
Dealing with disgruntled employees
The vaccination orders raised many challenges for schools when dealing with employees who refused vaccination and were frustrated and upset to lose their jobs.
Some staff who were terminated, or told that their employment was frustrated, brought claims in the Fair Work Commission. Sadly, many appear to have received poor advice about their prospects. Many have since withdrawn their claims, having earlier rejected generous offers of ex gratia payments from their employers. So far, matters that have been brought in court (on the basis that the vaccination orders are unlawful) have also all been unsuccessful.
It seems likely that vaccination orders will be in place for some time to come in education. If there are teachers who continue to refuse vaccination, the situation can be managed appropriately, and schools can take action to terminate such staff.