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Vaccination: Unfair Dismissal 

By Ashvini Ambihaipahar ​

Gregory John Casper v New Horizons [2022] FWC 1269



In a decision issued on 24 May 2022, the Fair Work Commission (FWC) has reaffirmed the proposition that directing an employee to be vaccinated against COVID-19 (absent a medical contraindication) is lawful and reasonable. A failure to comply with such a direction can provide a valid reason to terminate the employment.

Importantly, this case involved an employee in NSW who was not subject to a public health order.

Case Facts

The Applicant, Mr Casper, was employed as a case worker with New Horizon (NH). NH provides support services including homelessness support and is funded by the Department of Communities and Justice (DCJ).  In September 2021, DCJ informed NH that it was implementing a COVID-19 vaccination policy (Policy) that NH employees would be required to comply with primarily on work, health and safety grounds. NH undertook a risk assessment, employee survey and engaged in consultation in relation to the Policy.

Mr Casper was opposed to the Policy and subsequently told a colleague that he was “going to take all management down”, “going to get 5 white feathers and place these on managements desk… as they represent cowardness… everyone that gets the booster shot will be dead… management ..were all going to pay in some form” [sic]. Mr Casper subsequently delivered a box of white feathers to two NH colleagues and also sent a disputatious email to the NH CEO.

Mr Casper refused to comply with the Policy and was directed to take leave. NH issued a show cause directive. Mr Casper did not respond, and his employment was terminated. 

Mr Casper filed an unfair dismissal claim. He argued, inter alia (and Denuto), that the Policy breached the Constitution. Mr Casper’s evidence at the hearing consisted of a brief statement asserting that “having an experimental medical procedure is unlawful and being forced to do this to remain in employment is coercion”. He also stated that having to undergo a medical procedure was not a term of his employment contract. In response, NH argued that it had three valid reasons to terminate the employment namely the failure to comply with the Policy, misuse of the IT system and misconduct in delivering the white feathers.   

The FWC held that:

  1. It is an implied term that employees must follow reasonable and lawful directions.

  2. Consistent with the Supreme Court decision in Kassam v Hazzard [2021], the vaccination direction was lawful and reasonable and had an “evident and intelligible justification”.

  3. NH had complied with its consultation obligations under the EA and the WHS Act.

  4. The direction did not require Mr Casper to surrender his bodily integrity. He was at liberty to decline vaccination which he did, at his peril.

  5. Failure to comply with the direction was serious misconduct and provided a valid reason for termination.

  6. Distributing the white feathers was serious misconduct and also provided a valid reason for termination.


The case was dismissed.


A link to the case is here:

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