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Vaccination: Unfair Dismissal 

By Russ Baldwin

Mrs Barbara Roman v Mercy Hospitals Victoria Ltd [2022] FWC 711

There have been a number of recent decisions of the Fair Work Commission (FWC) involving termination of employment arising from an employee’s refusal to comply with vaccination mandates. These cases have generally involved (non) compliance with mandatory vaccination directions issued by employers under Public Health Orders (PHO). The PHO in NSW that mandates vaccination (with limited exceptions) ceased on 15 December 2021. Since that date, employers have been left to their own devices to decide whether to continue to require workers to be vaccinated or not.


The Commission’s approach to vaccination dismissals was restated in the recent case of Roman v Mercy Hospitals Victoria Ltd [2002] FWC 711 (31 March 2022). The case involved a Victorian health worker (R) who refused to comply with a direction issued by Mercy Hospital (MH) that all staff submit evidence of vaccination, an appointment to receive a vaccination, or an exemption by 15 October 2021. R refused to comply and was suspended. MH advised R that the failure to comply with a lawful and reasonable direction potentially constituted misconduct and also raised concerns that R also could not perform the inherent requirements of the job.


In December 2021, R attended a Zoom meeting during which she was asked to confirm her vaccination or exemption status. R refused to answer any questions and her employment was terminated. R filed an unfair dismissal claim. R did not give evidence at the hearing and was represented by her daughter. In the course of the hearing, it transpired that R’s daughter had secretly recorded the Zoom meeting and presented this as evidence to the FWC.


The FWC held that:

  1. R’s incapacity to perform the role was a valid reason to terminate her employment as the role could not be performed from home.

  2. MH could not, in the absence of evidence of vaccination or exemption, lawfully permit R to attend work by virtue of the PHO as it would have been exposed to prosecution and fines.

  3. Directing an employee to perform work that is a necessary condition of the job is both lawful and reasonable. The refusal to follow the direction constituted misconduct.

  4. The secret recording of the Zoom meeting by R’s daughter constituted misconduct by R and was a further valid reason for the termination even if the information came to light after the termination consistent with the principle of ‘after acquired knowledge’.


The case confirms that vaccination directions can be reasonable and lawful, employees can refuse to follow such directions (at their peril), engaging family members to represent you is a risky strategy and it is foolhardy to secretly record meetings or conversations with your employer.

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