The Position in Australia
The Challenge for Businesses
The emergence of COVID-19 provided many challenges for businesses including the rise of costs and increase in labour shortages. If it wasn’t already hard enough, further challenges were presented on the legal front – in particular lawfully terminating employees regarding vaccination status and retuning to the workplace. The recent FWC decision of Campbell v Suncorp Group Limited explored this issue and has since given a clear outlook on Australia’s position.
Background of the Case
Ms Campbell (The Applicant) was an employee at a Suncorp subsidiary (‘The Respondent’) for over 13 years as a Manager and later, as a partner.
In November 2021 in response to increasing COVID-19 cases and health risks, Suncorp implemented the ‘COVID-19 Safety Standard’ (“the Standard”) which required workers in customer facing roles to be vaccinated or seek an authorised medical exemption. Moreover, to ease the situation, Suncorp openly allowed for flexible COVID-19 working arrangements including the ability to work from home, however this was always only temporary and if required it was expected employees would attended the workplace to interact with colleagues and customers.
Campbell did not comply with Suncorp’s Standard and sought to continue working from home. Consequently, her employment was terminated.
Campbell then filed for unlawful termination on a number of bases. Primarily:
- that the Standard was an unenforceable contract condition and cannot be the reason for termination
- the demand for vaccination does not rely on statute,
- the Standard does not form a binding part of the employment contract,
- the “demand” in the Standard is prohibited by a valid Commonwealth law.
Fair Work Conclusion
Deputy President Asbury of FWC concluded that the direction to be vaccinated is a lawful and reasonable direction that Ms Campbell was obliged to follow as it is directed at maintaining the health and safety of Suncorp’s workers. Asbury further explains that vaccination remains the most effective control method for Covid-19 and thus a reasonable direction.
In relation to the Standard forming a part of her employment contract, Asbury concluded that as Campbell is required to comply with policies, guidelines, standards and procedures, it therefore forms a part of her contract and is binding. The contract also specifies that Campbell may be subject to disciplinary action, up to and including the termination of her employment for a failure to comply.
In relation to working from home, Asbury concludes that as her role necessitated a requirement to work in person, as COVID-19 restrictions were eased, there was an expectation she would return to the office. Moreover, the contract clearly pointed to requiring in-person work as Campbell was provided a vehicle allowance. Therefore, Suncorp was entitled to refuse her request to work from home and if not complied with would provide further grounds for lawful termination for refusing to comply with directions.
What Does this Mean for Employees and Employers?
Ultimately, COVID-19 aside, Ms Campbell did not comply with the lawful and reasonable directions of her employer as set out in her contract and company policies. Employees need to be aware that company policies can form part of their contract and employers need to be sure policies are integrated into their company’s legal framework correctly.
How Can Cogent Help?
If you are experiencing a similar situation or are seeking advice regarding COVID-19 legalities do not hesitate to contact our office.