The beginning of 2022 has given rise to a number of developments in employment law, particularly in the mandatory vaccination space. In this update, we deal with recent changes to the Victorian pandemic orders and the outcome of recent Fair Work Commission decisions relating to the dismissal of unvaccinated employees. The update also covers the new Victorian Sick Pay Guarantee Program, and some recent amendments to Victorian OHS legislation.
In Victoria, there have been a range of mandatory vaccination orders applying to general workers, specified facilities and specified workers. However those orders, and a number of other orders, have now been revoked, and there are now three pandemic orders in effect from 11.59pm on 22 April 2022 until 11.59pm on 12 July 2022, being:
The Pandemic (Workplace) Order 2022 (No.8) includes the mandatory vaccination requirements, incorporating what was previously in the specified facilities, specified workers and general workers orders.
The obligations in relation to collecting vaccination information and excluding unvaccinated persons from workplaces (unless they meet the definition of an “excepted person”) have not changed. However, there have been some changes to definitions, in particular:
The Workplace Order also includes other obligations (in part 2) such as:
The Quarantine, Isolation and Testing Order sets out the self-isolation and/or testing requirements for people who are confirmed or probable cases, close contacts and “risk individuals” (being social contacts, symptomatic persons in the community and international arrivals).
Under clause 22 of the Order, a person who is a close contact is not required to self-quarantine (and can therefore be permitted to attend the workplace) if they comply with particular requirements. The requirements are as follows:
The Public Safety Order requires people to wear face coverings in certain settings, and restricts access to “care facilities”. A “care facility” includes alcohol and drug residential services, disability residential services, residential aged care facilities, homelessness residential services and supported and short term accommodation. The Public Safety Order includes a number of entry requirements for care facilities.
The Fair Work Commission has now determined numerous unfair dismissal applications made by unvaccinated employees. In most cases, the employee was covered by a State public health order mandating vaccination.
Unsurprisingly, these applications have been largely unsuccessful, and the Commission has overwhelmingly found that an employee’s failure to become vaccinated against COVID-19 (or failure to provide evidence to their employer of their vaccination status) is a valid reason for their dismissal in circumstances where, as a consequence of a mandatory vaccination direction, the person cannot perform their role if they are not vaccinated.
One consideration, which is particularly relevant for employees who performed their role predominately or exclusively from home during the pandemic, is whether their dismissal was unfair on the basis that they could have continued to work from home. In McHale v Anglicare Victoria [2022] FWC 413 (an application for an extension of time to file an unfair dismissal application) the Fair Work Commission, in considering the merits of the case, stated that if the applicant could establish that her role could “fully, efficiently and productively” be performed from home, her application may have “substantial prospects”.
However, the Commission has recognised that just because a person working from home during the pandemic as a consequence of measures outside the control of employers, this does not necessarily mean the person can demand to continue to perform their role from home.
In Catherine Pope v Bacchus Marsh Realty Pty Ltd [2022] FWC 619, a real estate sales consultant who had refused to provide her employer evidence of her vaccination status contended that her dismissal was harsh, unjust or unreasonable including because her employer could have allowed her to work from home. The applicant had worked from home during lockdown and had performed sales work, including property appraisals, during this time. The Commission rejected the contention that, because the applicant had worked from home during lockdown, she could and should have been allowed to work from home again, noting that the lockdown was an “exceptional situation” and had been lifted.
In Karen O’Toole v Australian Community Support Organisation Ltd [2022] FWC 477, the applicant had performed some of her role from home during the pandemic, and argued that she should have been allowed to continue to do so, at least for a temporary period while she resolved her vaccination concerns. The Commission disagreed, finding that with the relaxation of pandemic restrictions, the employer was entitled to require the applicant to carry out the full requirements of her role which included attending the employer’s premises and delivering outreach services.
In Alexander James Marriott v Baptcare Limited [2022] FWC 300, the Fair Work Commission found that there was no valid reason for the dismissal of an unvaccinated employee who had been performing his role from home because, at the time he was dismissed, he and the rest of his team were still working from home, and the employer did not require any of them to return to the office until around three months later. The Commission therefore considered that the termination of the employee’s employment was premature, noting that there was no reason why the employer could not have allowed him to continue in his employment until such time as it actually required him to return to the office. However, it stated that there was no criticism that the employer ultimately required its employees to return to the office, which was its “managerial prerogative”.
Whilst, with the exception of the Baptcare decision, the Fair Work Commission is yet to find the dismissal of an unvaccinated employee, who was subject to a mandatory COVID-19 vaccination direction, to be unfair, a recent decision has indicated that even if such a finding is made, compensation may not necessarily be awarded.
In Barbara Roman v Mercy Hospitals Victoria Ltd [2022] FWC 711, the Commission found that Mercy Hospitals had a valid reason to dismiss the applicant relating to her incapacity to perform her role in circumstances where she had not provided evidence that she was vaccinated, and also on the basis of her refusal to follow a lawful and reasonable direction (i.e. a direction for her to provide evidence of her vaccination status), and dismissed the application. Deputy President Colman stated that even if he had found that the dismissal was unfair (on the basis that it was harsh), the outer limit of compensation would have been the five weeks wages that Ms Roman might have been paid in lieu of notice. However, given Ms Roman would not have been able to work during any notice period, DP Colman said that an order for compensation would have been inappropriate, and he would not have made one.
Similarly, no compensation was awarded in the Baptcare case. This was because the Commission considered the employee would only have remained employed for a further period of three months (until his team was required to return to the office), and the remuneration the employee had earned since his dismissal meant that he had incurred no economic loss.
The cases referred to above arose in circumstances where mandatory vaccination directions were in place and imposed requirements on the employer not to permit an unvaccinated worker to attend the workplace. Where the dismissal is due to non-compliance with an employer’s own mandatory vaccination policy, the Commission will also need to consider whether the direction given under the policy was a lawful and reasonable direction. This will depend on the particular circumstances of the case, including whether the employer met its consultation obligations in respect of the introduction of the policy.
Regardless of whether the basis for the dismissal is a mandatory vaccination direction or employer policy, in order to avoid a finding that the dismissal was unfair, it is essential that a procedurally fair process is adopted.
On 14 March 2022 the Victorian Government launched the Victorian Sick Pay Guarantee Program. This pilot program will run for two years and provide up to 38 hours of paid personal/carer’s leave per year to casual employees and self-employed workers in select industries to enable them to take time off from work when sick or injured, or to care for or support immediate family or household members. The pilot program is funded by the Victorian Government.
The program has been developed to assist workers who do not have access to personal/carer’s leave and relieve the pressure for them to return to work while unwell or when they otherwise need to care for family members. The program is also designed to help businesses, with expectations that the program will reduce workplace injuries and illness, assist with general productivity improvements from healthier workers attending the workplace and lower staff turnover rates.
To be eligible to access the Sick Pay Guarantee payments, applicants must:
Eligible occupations in the first phase of the pilot program include hospitality workers, food preparation assistants, food trades workers, sales support workers, sales assistants, labourers who work in supermarket supply chains, aged and disability care workers, cleaning and laundry workers and security officers and guards.
The Sick Pay Guarantee will provide workers with up to 38 hours per year of paid personal/carer’s leave. Payments will be made at the national minimum wage rate (currently $20.33 per hour), regardless of whether the claim is made for a weekday, weekend or public holiday.
Eligible applicants can claim a minimum of 3 hours and a maximum of 12 hours per day and claims must be made within 60 days of an applicant being absent from work and through the Sick Pay Guarantee website with supporting evidence.
As the program is administered by the Victorian Government, the impact on employers will be minimal as there is no need for an employer to be directly involved with the preparation of applications made by eligible employees. However, employers may be required to:
Employers should therefore be aware of the existence of this program, confirm whether their employees fall within one of the eligible occupations and be prepared for the possibility that they may be approached to supply evidence in support of an application.
Amendments to the Victoria OHS Act also came into effect in late March with one key amendment being a new requirement for host employers to treat employees of labour hire companies as employees. This means that OHS obligations owed by employers to their employees, including in respect of consultation must include labour hire employees.
This obligation is reinforced by a new section 35A which requires each of the host employer and the labour hire employer to “consult, co-operate and co-ordinate” in respect of the OHS obligations.
Other amendments to the OHS Act are:
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