Recently, two new legal cases were rendered that involved job loss due to COVID-19 mandates and/or restrictions. Both employees lost their jobs as a result of COVID-19 actions and neither has any recompense. As a result, it is very important that all Australians are well informed about the consequences of their choices.
First, it is imperative to note that it is not necessarily within the employer’s control when it comes to firing an employee for refusing to get vaccinated. In the first case, In the matter of Floors Aucamp v Association for Christian Senior Citizens Homes Inc, it was determined that the employee could be fired from his position of employment for refusing to be vaccinated. However, it was significantly noted that this was because he worked in the healthcare industry and the directive that required the vaccination of all healthcare employees, was a part of the COVID-19 Mandatory Vaccination (Workers) Directions. As such, the employer was not the originator of the mandate, the government was. Therefore, if the employer were to allow the employee to remain in his position as an unvaccinated employee, the employer would have been in violation of the legal directive. Hence, the court found that the employer had no choice in the matter but to fire the employee. The fired employee had no regress against the employer for enforcing the government-issued mandate.
The second case was factually quite different, yet the outcome was the same. The employee left his place of employment to attend a protest against the mandates. Subsequently, the employee was let go for attending the rally. The court affirmed the firing with one small difference. In this case, the court determined that the employer had the right to fire the employee because the employee had attended the event in direct contradiction to the stay-at-home orders. In addition, the court reviewed the nexus between the employee’s attendance and employment. The following factors were reviewed;
- The employee had attended the rally on company time
- The protest was in direct relationship to the employee’s work
- The employee was being paid by the employer at the time he attended
- The employer may have approved of the employee’s attendance
Despite the last factor, the court upheld the employer’s decision to fire the employee for his attendance at the protest. The court clearly stated that the employee’s involvement put the employer’s reputation at risk and, in addition, the attendance appeared to be work-related. Therefore the employer had the right to fire the employee for attending the rally on the employer’s time and while the employee was being paid by the employer. The main difference in this instance is that the employer had not given the employee proper notice of dismissal and, as such, the court did award the employee a small severance from the employer.
With both of these cases, there remain some unanswered questions that all employees may want to consider before making any rash decisions.
- If an employee’s job does not fall under the mandatory vaccination direction and they refuse to be vaccinated, can their employer fire them under their own mandatory vaccination policies?
- If an employee attends a protest and/or rally that is not on their employer’s time but causes them to engage in activity that could reflect badly on their employer, could that employee be fired for jeopardizing the reputation of a publicly visible company?
As of yet, there may be no answers to these questions and many other questions surrounding mandatory vaccinations. As such, it is very important to have a transparent conversation with your employer regarding their policies, the origin of those policies, the exceptions to the policies available to employees and the exact consequences of choosing not to get vaccinated or choosing to participate in any form of protest against current COVID-19 rules and restrictions.
In the event that you find yourself in need of assistance, please contact the law offices of Owen Hodge Lawyers. At Owen Hodge, we are always happy to assist clients in understanding the full ramifications of any and all of your legal needs. Please feel free to call us at your earliest convenience to schedule a consultation at 1800 780 770.