Dismissal of unvaccinated retirement village worker upheld

In brief 3 min read

The Fair Work Commission (FWC) has upheld the dismissal of a Maintenance Manager at a retirement village, finding that he was incapable of performing the inherent requirements of his job because he was not vaccinated against COVID-19.¹

Key takeaways

• This case confirms that employers will have a valid reason to dismiss an unvaccinated employee for incapacity if the employee cannot perform the duties of their role due to a government COVID-19 vaccination mandate.

Background

Mr Aucamp commenced employment with the Association for Christian Senior Citizens Homes Inc (ACSCH) in January 2016. At the time of his dismissal, he was employed in the role of Maintenance Manager at a retirement village in Victoria. In this role, Mr Aucamp was responsible for providing maintenance support to residents.

On 4 October 2021, ACSCH met with Mr Aucamp to discuss the Victorian Government's foreshadowed mandatory vaccination directions (Directions). ACSCH was aware of Mr Aucamp's reluctance to be vaccinated, and discussed the possibility that he could no longer be employed if he was not fully vaccinated.

On 8 October 2021, ACSCH emailed Mr Aucamp a copy of the Directions and invited him to advise whether he had decided to get vaccinated against COVID-19. Mr Aucamp confirmed that he would not be taking any COVID-19 vaccination. On 14 October 2021, ACSCH dismissed Mr Aucamp on the basis that the Directions prohibited him from working at the retirement village from 15 October, and therefore, he could not lawfully perform his role.

Mr Aucamp lodged an unfair dismissal claim with the FWC.

The decision 

The FWC found that ACSCH had a valid reason to dismiss Mr Aucamp because:

• as a 'repair and maintenance worker', the Directions covered Mr Aucamp's employment and he was not permitted to work at ACSCH's retirement village unless he was vaccinated or exempt from the vaccination requirement; and
• Mr Aucamp advised ACSCH without equivocation that he would not be getting vaccinated. In those circumstances, ACSCH was entitled to conclude that Mr Aucamp was and would remain unvaccinated, and therefore he was incapable of performing the work he had been employed to do.

The FWC was satisfied that ACSCH adequately notified Mr Aucamp that if he chose not to get vaccinated, he would not be able to work at the retirement village, and he was given an opportunity to respond to this proposal to terminate his employment. The FWC ultimately concluded Mr Aucamp's dismissal was not unfair.