Unvaccinated worker reinstated due to employers poor communication
In a very important recent development, a Northern Territory teacher, Anna Gikas (Applicant), who was sacked over the COVID-19 vaccine mandate has been reinstated and awarded backpay, after the Fair Work Commission (FWC) ruled in her favour.
The decision of Anna Gikas v The Commissioner for Public Employment (U2021/12287) has major implications as it revolved around the NT government’s failure and inability to consider arguments about the “reasonable” personal health concerns of employees, not necessarily medical contraindication exemptions.
Background
The Applicant was employed as a teacher by the Northern Territory Department of Education from 23 March 2020 until her dismissal on 26 November 2021.
On 13 October 2021, the Northern Territory Chief Health Officer issued COVID-19 Direction (No. 55) 2021 (CHO Direction No. 55) directing for mandatory vaccination of workers to attend the workplace.
These directions provided that for the period starting on 13 November 2021, a worker who had not received the first dose of an approved COVID-19 vaccination must not attend the worker’s workplace. On and from 24 December 2021, a worker who had not received two doses of an approved COVID-19 vaccine must not attend their workplace.
The Applicant, who was a teacher at Dripstone Middle School, had postponed her first appointment to receive the COVID-19 vaccine out of concerns for her health after her sister, the well-known ABC Darwin journalist and presenter Eleni Roussos, had developed pericarditis after receiving the first dose of the Pfizer vaccine and was hospitalised for a week in November 2021. Following this development, the Applicant then informed her employer that she wanted to seek medical advice from a cardiologist.
However, on 26 November 2021, the Applicant was terminated from her role on the basis that she could not perform the inherent requirements of her job. The Applicant then lodged an Unfair Dismissal claim in the FWC and at all times specified that she was not an “anti-vaxxer”.
The matter was listed before Commissioner Riordan who was critical of the decision and process to terminate the Applicant’s employment and stated as follows:
“Every employer and employee is entitled to a “fair go all round” in compliance with s.381 of the FW Act. I am of the view and find that the Applicant did not receive her statutory entitlement to this fair go. No employee should be terminated for following their doctors’ advice to get a specialist medical opinion – particularly when there is no chance of breaching the CHO Direction No. 55”.
In relation to the perceived lack of consultation and communication on behalf of the Respondent, the FWC found as follows:
“The Applicant’s termination also occurred without appropriate consultation between the Department and the management at Dripstone Middle School. Had any consultation occurred, then the Department would have been aware that the Applicant was on approved leave for the duration of the term and there was absolutely zero chance of the Applicant, or the School, breaching CHO Direction No. 55”.
The FWC found that the termination was harsh and unfair and ordered the Applicant reinstated with backpay.
Key takeaway points
Employers should note the following:
This case does not reward the anti-vaxxer movement but does act as a warning not to assume that unvaccinated employees are anti-vaxxers.
Where an employee provides medical grounds or reasons as to why they are not vaccinated or are delaying vaccination, employers should take this into consideration.
It is also important that employers still follow process and write to and speak to their employees and maintain lines of communication and consultation.
Article prepared by:
Jim Babalis
Special Counsel
T 03 5225 5205
E jbabalis@ha.legal
Jim Rutherford
Principal Lawyer
T 03 5226 8579
E: jrutherford@ha.legal
