Employers are generally on "solid ground" in suspending or dismissing workers who refuse reasonable directions to be vaccinated to perform their jobs, but face a range of practical difficulties if they take such action, according to Adelaide University Professor of Law, Andrew Stewart.
He told the ALERA national conference that it is "relatively easy to construct arguments for employers in this situation as to giving a direction that results ultimately in dismissal or suspension without pay on the basis . . . of lack of readiness and willingness to, or the ability to, work".
"The problem is that every employee that does that is inviting . . . a whole range of litigation," he said.
Stewart said "the first employers to [litigate] know that they could be facing – as we've seen in a number of instances recently – highly well-funded resistance campaigns, with all kinds of crowdfunding, all kinds of social media support coming in to support the workers who are affected by these directions".
"That right now is the main issue."
He continued that "right now I'm actually less interested in the legal niceties around 'no work, no pay', stand down, lawful and reasonable direction.
"Because where you've got these directions in place, the employer is clearly on solid legal ground [in] taking some action.
"The problem is the practical one of what is that going to mean.
"The trouble is that even if the employer is on solid legal ground in taking the action, that doesn't necessarily mean that they can ultimately defend an unfair dismissal claim, which will be decided on broader grounds than just a valid reason."
Speaking on a labour law panel alongside Assistant Victorian Government solicitor for workplace relations and OHS, Frances Anderson, and Monash University's Professor Marilyn Pittard, Stewart continued that other issues would arise when dealing with workers who refuse inoculations, including those outlined by Anderson, such as "the question of availability of other work", along with consideration of other alternatives and "procedurally, was the decision handled in a good way?"
He said an employer in such a situation might also face the "spectre" of discrimination claims, particularly on the grounds of political opinion.
Stewart said that "what is very, very badly needed right here is leadership on this issue; it's an appallingly difficult policy question".
He continued that "there's clearly a clash between personal freedoms and decision-making, and public health needs", noting that it is the government's responsibility to balance those needs.
"And at the moment, we have a complete absence of leadership."
"The state governments who are issuing, or the health authorities responsible for issuing these public health directions, are at least doing something to try and make it a little easier for employers to handle these issues."
He said "it would be far easier if we had much clearer guidelines in place, and they should be national, they shouldn't respond to the different electoral positions of the states".
"So this should be a national matter", involving "clear guidelines that address some of these issues and ultimately say to an employer that 'look, if you've got solid grounds to give a direction, and there are no reasonable alternatives that you could explore, then you do have the basis for either suspending or dismissing a worker'".
He accepted, though, that "it's reasonable to respond to different COVID situations".
"I'm speaking from South Australia [where] the practical situation [of no active COVID-19 cases in the community] is hugely different to . . . the one that you guys are dealing with in Melbourne [with more than 2000 daily cases in Victoria as Stewart spoke]."
Pittard said there might a moral responsibility for employers to consider options for unvaccinated workers that might involve working from home or at another workplace where they can work safely without coming into contact with others, although this would only be possible for some jobs.
The pandemic had demonstrated "a lot of ingenuity" about how people can work from home, even for call centres, so "creative" employers that are seeking to retain good employees "are going to be looking at those solutions", she said.
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