Businesses facing unfair dismissal and General Protections claims over vaccination stance-related terminations are being urged to seek legal assistance sooner rather than later.
About 80% of queries to Ai Group Workplace Lawyers are currently COVID-related.
“It’s constant,” says Emma Goodwin, Ai Group Workplace Lawyers Legal Practice Director/Principal Adviser Workplace Relations Consulting.
“However, the sheer volume of the claims we are dealing with gives us an advantage in the market. It means we have the experience to deal with the claims and help businesses navigate related Health Privacy issues.”
The influx of claims stems from Public Health Orders (PHOs) made under legislation in each State or Territory which subject employers to hefty fines if they allow many employees to work away from home if they are not vaccinated.
Some workers, however, are claiming that their terminations are unfair, or they are being terminated because they have exercised workplace rights.
Ms Goodwin said it was yet another COVID headache for businesses already struggling to stay afloat.
“It’s hard,” she said.
“First, they’ve got to go through the termination process, then they've got to recruit someone, then they’ve got to deal with a claim on top of it.
“So many businesses already have staff shortages because people have COVID and they’re isolating.
“It’s not only difficult for these employers, but genuinely quite upsetting because often they don’t want to let particular employees go.
“However, they’ve got to a point where they can’t function without someone doing that job.
“They’ve got to replace them because they can’t keep unvaccinated people on unpaid leave forever. They need to recruit someone and put them in the role because the work needs to be done. A lot of the time, other employees are being significantly overloaded because they’re having to pick up another employee’s work.”
In a situation where there is no PHO to rely on, many employers are implementing a mandatory vaccination policy to meet their Work Health Safety (WHS) obligations.
However, they need to be able to justify that it is a reasonable measure and the best way to minimise risk. Guidance from the Fair Work Commission also makes clear that employers need to ensure they comply with consultation obligations in industrial instruments.
Ms Goodwin said it was essential that employers kept in mind relevant obligations under Federal privacy law and that, in Victoria, complied with the Health Records Act when collecting and storing employees’ health information, including COVID-19 vaccination records.
“The concern is that many Victorian employers don’t know they have to comply with this,” she said.
“It’s something we are seeing become an issue. If people breach the health privacy legislation, there are consequences.
“There have also been occasions where we’ve had to “mop up” because the employer hasn’t got it quite right. It’s much better to come to us early because we can help ensure all the legal requirements are met.”
Employers from all industries are facing unfair dismissal and General Protections claims over vaccination stance-related terminations.
“You are not alone,” Ms Goodwin said.
“A lot of businesses are dealing with this and it’s an extremely difficult and stressful situation to be facing.”
Are you facing an unfair dismissal claim? Ai Group Workplace Lawyers can help. Please phone our Workplace Advice Line on 1300 55 66 77.
Wendy Larter is Communications Manager at the Australian Industry Group. She has more than 20 years’ experience as a reporter, features writer, contributor and sub-editor for newspapers and magazines including The Courier-Mail in Brisbane and Metro, the News of the World, The Times and Elle in the UK.
