The Fair Work Commission (FWC) has recently been called on to determine whether a worker’s offer to undergo polymerase chain reaction (PCR) testing instead of receiving a COVID-19 vaccination was a reasonable alternative to receiving the vaccine.
On 17 March 2022, the FWC delivered judgment in Stevens v Epworth Foundation  FWC 592 (Stevens). This case involved Ms Stevens making an unfair dismissal application against Epworth Foundation, trading as Epworth HealthCare (Epworth), where she had worked as a dietician from July 2011 until 3 December 2021. Ms Stevens was dismissed by Epworth on the basis that she was unable to meet the inherent requirements of her job, by refusing to provide Epworth with proof that she had been vaccinated against COVID-19.
In accordance with Victorian government directions in place at the time, Epworth was required not to allow Ms Stevens to attend the workplace on or after 15 October 2021 unless she had been vaccinated against COVID-19 and provided this proof to Epworth or alternatively provided proof that she had a booking to receive a vaccination by 29 October 2021. In her application, Ms Stevens alleged that the directions were unlawful or unfair, Epworth did not have a valid reason to dismiss her, and that Epworth should have allowed her to take long service leave as opposed to dismissing her.
Following the government directions, in September 2021 Epworth informed its staff that they would be required to receive the COVID-19 vaccination by particular dates. Later that same month, Ms Stevens commenced a period of sick leave which she remained on until 21 October 2021. On 1 October 2021, Ms Stevens wrote to Epworth Richmond’s executive general manager, Mr Simon Benedict, objecting to the requirement that she provide evidence of her vaccination status and sought assurances that the vaccines were safe and effective.
Ms Stevens and Mr Benedict exchanged multiple pieces of correspondence from this time until Ms Stevens’ dismissal on 3 December 2021. On 7 October 2021, Mr Benedict provided a letter to Ms Stevens, stating that the government directions were legally binding and required Epworth’s compliance, with contraventions leading to penalties being imposed against them. The letter went on to state that Epworth was not required to provide the assurances sought but noted the widespread medical support for the vaccination regime. The letter reiterated to Ms Stevens that all healthcare workers were required to be vaccinated by 15 October 2021 and provide evidence of this, or have a booking to receive a vaccination by 29 October 2021, unless the medical contraindication exception applied. It stated that Epworth was required to ensure that a worker who had not provided the required evidence did not enter or remain on Epworth’s premises for the purposes of work, these workers would not be able to perform their duties, would not be paid and therefore would have implications on their ongoing employment.
On 11 October 2021, Ms Stevens wrote a further letter to Mr Benedict, questioning the safety of the vaccines and requesting to take annual leave at the end of her period of sick leave on 21 October 2021.
Ms Stevens did not provide Epworth with the necessary evidence as she was required to under the government directions, nor did she provide a medical exemption in relation to the vaccines. On 18 October 2021, Mr Benedict informed Ms Stevens that she was authorised to take annual leave from 21 October 2021 until 29 October 2021. He restated the requirements of the directions and that the failure to meet these requirements would have implications on her future employment. Ms Stevens sent a further letter to Mr Benedict dated 27 October 2021 again objecting to the requirement that she provide proof of vaccination based on her privacy. This letter stated that she had applied for a period of long service leave and she planned to return to work on 3 November 2021.
On 29 October 2021, Mr Benedict directed Ms Stevens not to attend the workplace on 3 November 2021 due to failing to provide the vaccination information as required. Mr Benedict informed Ms Stevens that she was able to take long service leave until 23 November 2021 and from this date it was not suitable for her to take any further period of long service leave. The letter stated that it was Ms Stevens’ right not to provide the information being sought and that Epworth could not require her to confirm she had been vaccinated, but without this information she would not be allowed onto the premises for work.
Ms Stevens responded to Mr Benedict’s letter on 18 November 2021, disputing the direction’s lawfulness and the requirement that she provide information about her vaccination status.
On 22 November 2021, Mr Benedict informed Ms Stevens that Epworth had requested confirmation of her vaccination status multiple times but she had failed to provide such information. In light of this, Epworth had determined that it was untenable for Ms Stevens to continue in her employment as there was no indication that she would be able to lawfully perform her role in the short to medium term, yet her role was required to be performed on an ongoing basis due to the business’ operational requirements. The letter provided Ms Stevens with the opportunity to show cause prior to a final decision being made as to why her employment should not be terminated by 1 December 2021.
The same day, Ms Stevens wrote to Mr Benedict requesting that her long service leave be extended. Mr Benedict responded on 29 November 2021 denying the extension.
On 1 December 2021, Ms Stevens responded to the show cause letter, stating that the directions were invalid or did not apply as they were contrary to privacy and discrimination laws, she was fit, healthy and content to undergo PCR testing to show she did not have COVID-19. She indicated that she would not be providing her health information to Epworth and it was unlawful for it to request her to do so, with Epworth acting unlawfully by preventing her to continue in her employment.
In a letter dated 3 December 2021, Mr Benedict advised Ms Stevens that her proposal to undergo PCR testing did not satisfy the requirements of the directions that applied to Epworth. It stated that the directions were likely to remain in force for an extended period, but irrespective of this Epworth had its own internal policy that workers must be vaccinated. The letter stated that it was not possible for Ms Stevens to perform the key requirements of her role from home and it was not reasonably possible to deploy her to a role not requiring attendance at the workplace. Ms Stevens’ employment was to end that day and she was to be paid 5 weeks’ pay in lieu of notice.
Decision of the FWC
In determining the unfair dismissal application, the FWC found that Ms Stevens’ alternative to getting the vaccinations, namely undergoing PCR testing, was not a reasonable alternative to being vaccinated, and Epworth were not obliged to prove that vaccines are safe.
In upholding her dismissal, the FWC considered the evidence led by Ms Stevens and her argument that she was being made to participate in a ‘medical trial procedure’ without being provided with an alternative. The FWC stated as follows at :
Ms Stevens’ representative made reference to various reports and articles said to cast doubt on the efficacy or safety of COVID-19 vaccines. But no expert evidence was led. In any event, the relevant COVID-19 vaccines have been approved for use in Australia by the national regulator, the Therapeutic Goods Administration (TGA), which is an expert body. The TGA’s approval of relevant vaccines is a matter of public record and is evidence of their safety and efficacy.
When considering whether Epworth had a valid reason for the dismissal related to Ms Steven’s capacity or conduct in accordance with section 387(a) of the Fair Work Act 2009 (Cth), the FWC held at -:
The Commission is required to consider whether there was a valid reason for the dismissal related to the person’s capacity or conduct (s 387(a)). Such a reason is one that is valid in the sense both that it was a good or sufficient reason, and also a substantiated reason. In my view, Epworth had a valid reason to dismiss Ms Stevens. It was one related to her capacity to perform her role. Ms Stevens is entitled to her opinions about the efficacy and safety of the COVID-19 vaccines. Ms Stevens was also within her rights to decline to become vaccinated or to provide Epworth with the information requested from her. But her choices had the inevitable consequence that Ms Stevens rendered herself unable to perform her job. Epworth was prohibited by law from allowing her to attend the workplace unless she provided the required evidence. Had Epworth allowed Ms Stevens to attend the workplace from 15 October 2021, it would have broken the law, and exposed itself to financial penalties. There was in effect a new regulatory requirement that attached to Ms Stevens’ job. She could have decided to take the necessary steps to meet the requirement.
I reject the contention that Epworth was forcing Ms Stevens to participate in a ‘medical trial procedure’. She was not forced to do anything. And the rollout of COVID-19 vaccinations is not a trial. Relevant tests and trials took place prior to the TGA approval of those vaccines for use in Australia. It is not correct to say that Ms Stevens had no alternative but to become vaccinated. She did have an alternative. It was the alternative that she decided to choose, even though, for Ms Stevens, it was a very difficult choice. It was the alternative that involved her legal exclusion from Epworth’s workplace.
In regards to the alternative to undergo PCR testing, the FWC stated at :
Ms Stevens contended in her written submissions that it was relevant for the Commission to take into account the fact that she had offered to undergo a PCR test to demonstrate that she did not have COVID-19, and that this would have been a reasonable alternative to her dismissal. This is not the case. The Directions did not provide for exceptions in respect of employees who return negative COVID-19 tests. Ms Stevens contended that it was unfair of Epworth not to provide her with assurances concerning the safety or efficacy of the COVID-19 vaccines, but Epworth was not required to do so, and nor in my opinion ought it reasonably to have done so.
While holding that Ms Stevens had the right to her choice to not provide the required information and receive a COVID-19 vaccine, the FWC held that Epworth in turn had the right to prevent her from attending the workplace and to terminate her employment. Epworth was following the Victorian government’s directions, which were acknowledged by the FWC as ‘not [being] declared by a court to be invalid’. The directions did not provide for PCR testing to be applied as an alternative to receiving the required vaccinations, and was therefore found to not be an alternative that was available to Ms Stevens. Were Epworth to have allowed such an alternative, it would have broken the law.
The key takeaway for employers from this case is that where an employee does not wish to be vaccinated in accordance with a public health order or government direction, unless the direction provides otherwise, there will be no alternative available to them instead of receiving the vaccine. PCR testing will not be considered to be a reasonable alternative, as in this case the Victorian government’s directions did not provide employees with an alternative other than receiving the vaccination itself.