An employee of a church wellness clinic was dismissed after receiving the COVID-19 vaccination in October 2021. The employee has lodged an ‘unfair dismissal’ claim with the Fair Work Commission and is awaiting a ruling in consideration of compensation for the loss of three months wages, superannuation, and other entitlements.
After receiving the COVID-19 vaccination the employee received a termination letter from the employer, stating that the employees conscious and deliberate act to receive the vaccination contradicted the principles of the company. It further stated that no committee member or employee of the church could be accepted if they chose to receive the initial or ongoing booster vaccination.
The area of interest here is the employer’s ability to potentially sack employees for breaching company code of conduct and the extended freedoms around this in consideration of religious constitutions. It is uncommon for an employee to be instantly dismissed for violating company code of conduct, with a warning or a ‘three strike rule’ usually applicable prior to such extreme repercussions. In this instance, not only was the dismissal immediate, but no prior efforts were made to notify the employee that such actions were deemed unacceptable or in breach of company policy.
The results of the mentioned claim depend upon the employee being classified as an employee or an independent contractor, as an employee is eligible to claim an ‘unfair dismissal’ whilst an independent contractor is not. In accordance with Fair Work, the classification will be determined by the nature of the work relationship, not by the referred titles. In effect, this will see an investigation into the evaluation of interactions between the employee and employer defining; who delegates the tasks and performance of such, if the individual works for one or multiple companies, if services are advertised, use and or provision of a uniform, and the method of payment amongst other criteria.
The employer’s decision challenges all current government and business directives mandating vaccination across the country. It entices the question; can employers dismiss employees based upon vaccination status or more broadly, company policy?
If you have any HR or WHS queries surrounding COVID-19, Workplace Policy, Employee Management, and Employment Relation Support, simply call Assurance HR today on 1800 577 515 and one of our senior consultants will assist with your business specific needs.