Our business is subject to a public health direction that mandates vaccination for our workers unless they have an exemption. Several workers are refusing to be vaccinated. Their refusals aren’t based on medical or religious grounds – they are simply ‘anti-vaxxers’. What are our options in relation to their employment? Can we dismiss them on the basis that they are not able to work?
Employers have obligations under work health and safety laws to provide a safe working environment for their employees. This includes ensuring the workplace is free (as far as reasonably practicable) from health and safety risks such as COVID-19.
Under the common law, an employer can issue a lawful and reasonable direction to an employee. Employees have a duty to comply with employer directions provided those directions are lawful and reasonable. A direction is lawful if it does not contravene a state, territory or Commonwealth law. However, whether it is reasonable is determined on a case-by-case basis. Reasonableness depends upon all the circumstances, including the nature of the employment.
In the context of a health order from the government mandating vaccination, a direction for employees to comply with such an order is likely to be lawful and reasonable.
For an employer to discipline or dismiss an employee because they have disobeyed a direction to be vaccinated, the employer must show that being vaccinated has the requisite connection with the employee’s employment. That connection will be readily established if there is legislation requiring it, as in your case.
An employee’s refusal to obey a lawful and reasonable direction may constitute serious misconduct and will generally be a valid reason for dismissal. However, any disciplinary action should not be taken lightly. Regardless of whether your direction that employees be vaccinated against COVID-19 is lawful and reasonable, dismissing an employee for non-compliance with the policy may be challenged as an unfair dismissal.
We recommend seeking independent legal advice before any decision to take disciplinary action is made.