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A senior member of the Fair Work Commission has found that termination of a university staff member who was unable to return to work onsite following the COVID pandemic was not unfair. Deputy President Bell held that on-site work was an inherent requirement of the former staff member’s role, concluding that “…attendance at University premises and programs and undertaking University business [onsite] was an inherent requirement of the Applicant’s role. Although the Applicant had been able to perform some work at home, DP Bell was of the view that “important aspects of her role required presence on site”.
The University of Tasmania implemented a policy, effective December 2021, requiring all staff, students and visitors to University premises to be fully vaccinated against COVIVD-19 or have an exemption.
This policy was introduced following the decision by the Tasmanian State Government to open State borders, and was seen by the University as the best way to ensure the safety of those on University premises. Prior to introducing the policy, the University conducted a risk assessment, and a staff survey. The response to the staff survey indicated a very high favourable response to the proposal of a mandatory vaccination policy.
Ms Sommerville was employed by the University as Operations Manager with the Integrated Machine Observing System (IMOS), a collaborative, nationwide research infrastructure funded by the Australian Government. She had indicated in the staff survey that she opposed vaccination. When the policy was introduced, she refused to comply with the policy requirement of officially advising the University of her vaccination status. She also maintained that her role could be performed entirely from home, noting that she had done so for 10 months during 2020 when the University required this of most staff, due to the pandemic.
In introducing the policy, the University had indicated to staff that it would consider alternative arrangements for staff who were not vaccinated and did not have a medical exemption, including remote working, but also stated that in many cases this was not likely to be possible due to the nature of the work performed at the University.
Ms Sommerville went on medical leave on 9 December 2021. From then until 21 February 2022, when her employment was terminated, she exchanged extensive correspondence with the University, the essence of which was her failure to comply with the policy by failing to officially advise of her vaccination status; her insistence that she could perform her role from home, and her view that the policy was not lawful.
The reason for ultimately terminating Ms Sommerville’s employment was that she had not complied with the policy, and was unable to comply with an inherent requirement of her role, being access to university premises.
Ms Sommerville made application in the Fair Work Commission, alleging she had been unfairly dismissed. In determining the matter, Deputy President Bell found that the University had a valid reason for terminating Ms Sommerville’s employment.
This was primarily because the Deputy President found that the direction that staff comply with the mandatory vaccination policy was lawful because it was aimed at improving overall health and safety at the University in anticipation of a pending opening up of the Tasmanian border and a concomitant surge in COVID-19 cases, and involving a product (ie the vaccine) that was lawful. The Deputy President also rejected the Applicant’s argument that the policy did not comply with privacy legislation, and that it was discriminatory, holding that unvaccinated status is not a “disability” for the purpose of anti-discrimination legislation.
The Deputy President also found that the direction was reasonable as well as lawful, primarily because the University had consulted staff as required under workplace health and safety legislation.
In regard to the inherent requirement to perform the role from University premises, the University gave evidence of certain aspects of the Applicant’s role that could only be performed face to face, in particular attendance at events to engage with IMOS partners, government and industry stakeholders, etc. The IMOS Executive Group had also concluded that staff must be present in the office a minimum of 3 days per week in order to meet operational needs. Among other matters, this was due to the “interconnectedness” of various positions within the IMOS office and the need for thorough information sharing. The Deputy President accepted the University witness’s evidence that during the period when staff were required to work from home the office had not functioned “normally”, but that they had “got through the situation as best they could given that they weren’t used to operating that way, and it’s not how they normally ran the office”.
The Deputy President held that:
The fact that there has been a period – often extended significantly for many people – where work has been undertaken at home does not dictate a conclusion that work can continue to be undertaken wholly, or even substantially, remotely.
He also noted that the Applicant had focussed on a task-based analysis of her role, and stated that the performance of particular tasks is only one aspect of work, accepting the University’s evidence that there are less tangible benefits of having people working physically together, particularly the interactions and the engagements that occur. He held that “The importance of these interactions – also often a facet of teamwork – should not be underestimated”.
The Deputy President also found that the termination was procedurally fair. In particular, he rejected the argument that the University undertaking the termination process while the Applicant was on sick leave constituted bullying and harassment.
Member Update – FWC finds that on-site work is inherent requirement of position