As Australia moves towards its COVID-19 vaccine roll out, a key area of concern for employers is whether they can give employees directions related to the impact of the pandemic. Specifically, whether they can direct their employees to be vaccinated for COVID-19 and/or direct them to return to the workplace.
In a nutshell, the ability of an employer to give such lawful and reasonable directions is qualified by necessity and the circumstances of each individual employee the direction is given to. Ultimately, we do not envision that all employers will be able to lawfully and reasonably direct each of their employees to be vaccinated against COVID-19, as such a direction will not be considered necessary or reasonably practicable in all workplaces, particularly from a health and safety perspective. Recently, workplace regulators offered their view on this issue:
- The Fair Work Ombudsman announced that “in the current circumstances” the overwhelming majority of employers “should assume” that they do not have the power to require employees to be vaccinated. However, the Fair Work Ombudsman did accept that there were circumstances where an employer may be able to impose this requirement. Such circumstances include:
- where a law (such as a state/territory health law) requires it
- where an enterprise agreement or contract requires the employee to be vaccinated, and
- whether it is a lawful and reasonable direction in the circumstances.
Safe Work Australia (SWA) announced that it is “unlikely” that requiring workers to be vaccinated for COVID-19 will be a reasonably practicable control measure for the purposes of workplace health and safety legislation.
The ability of an employer to give a lawful and reasonable direction to employees to return to work at the workplace will vary, with the majority of employees being able to return to work once any government restrictions are lifted and workplace directions allow it (provided all reasonably practicable control measures are implemented to minimise the risk of exposure to COVID-19 in the workplace).
What is a lawful and reasonable direction?
Employees are obligated to comply with directions from their employer which are lawful—that they relate to the subject of their employment and do not involve illegality—and are reasonable, which is determined by examining the specific circumstances. It is commonly accepted that a failure to comply with a lawful and reasonable direction may serve as valid reason for disciplinary action, including dismissal.
In Teslime Kuru v Cheltenham Manor Pty Ltd as trustee of the Cheltenham Manor Family Trust T/A Cheltenham Manor Pty Ltd [2021] FWC 949, Commissioner Yilmaz determined that an aged care facility in Melbourne gave a lawful and reasonable direction (in the context of COVID-19 and the danger it poses to aged care residents) to its employees when it directed that its workplace be divided into “zones” and employees be restricted from interacting with other employees not working in the same zone without personal protective equipment. The Commissioner ultimately considered that, even though the dismissed employee interacted with another employee in breach of this direction prior to the start of her shift, this constituted a breach of a lawful and reasonable direction and was sufficiently connected with her employment to serve as a valid reason for her dismissal.