Fair Work Commission upholds sacking of unvaccinated retirement village worker

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The Fair Work Commission (FWC) has ruled in favour of the Association for Christian Senior Citizens Homes in its dismissal of a worker who defied the Victorian Government’s vaccine mandate last year.

The employee, a maintenance manager who had worked for the operator since 2016, notified his employer in October 2021 that he would not be getting vaccinated, after which he was dismissed on the grounds that he could not “lawfully perform” his role.

In its findings, Fair Work upheld the dismissal for reasons of incapacity, saying that the worker did not have a valid exemption to the vaccine mandate and would have been legally barred from continuing to work at the village without getting the jab; the Commissioner also found that he had been given sufficient information about the reason for his dismissal and ample opportunity to respond.

Analysing the decision, Damon King and Adele Garnett of Hopgood Gamin Lawyers said dismissals due to noncompliance with employer vaccine mandates would be evaluated by Fair Work on the basis of whether they are “reasonable and lawful directions”.

“In our view, where an appropriate consultation process has been undertaken, in circumstances where employees are required to interact closely with each other and members of the public on a regular basis, it is likely that a vaccine mandate will be held to be a reasonable and lawful direction due to the employer’s health and safety obligations and the high risk of catching and spreading COVID-19,” they wrote.