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Disability Care Worker Loses Unfair Dismissal After Refusing Vaccine

Disability care worker loses unfair dismissal after refusing vaccine

A disability care worker has lost his unfair dismissal case after being sacked for refusing to get a COVID-19 vaccination.

The Fair Work Commission found the man engaged in serious misconduct when he chose to refuse a reasonable and lawful direction.

Commissioner Michelle Bissett said: “that choice comes with consequences, as does every choice we make”.

The background

Matthew Colwell worked for Wellways Australia as a Carer Gateway Confirmation Officer.

The role required him to match service providers with the requirements of clients.

In October 2021, Wellways introduced a vaccination policy requiring staff to have their first shot before 31 December 2021.

Colwell had been working from home at the time and initially refused to reveal his vaccination status.

He argued the state’s mandate directive did not apply to his employment because he was not a “font line” health worker.

However, Wellways told him he would be in contact with front line workers when he returned to working from the office.

Disability care worker refuses vaccine

Wellways then warned Colwell his employment was at risk if he failed to provide evidence of COVID vaccination.

He raised concerns with the business about a blanket policy, describing the vaccine as “still provisionally approved”.

Wellways then told him he would be required to return to working from the office. Two days later, he sent an email stating:

“I have no intention of receiving a covid vaccine before 31 December regardless of what policies Wellways feels they have the right to impose on people”.

‘Absurd position to defend’

In early January, Wellways directed Colwell to attend a meeting to “show cause” to retain his job.

During the meeting, he reiterated that his role did not involve contact with others and that he could easily work from home.

He described his refusal to have a vaccine as “an absurd position to have to defend.”

Wellways subsequently terminated his employment.

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Commissioner Bissett said it was not up to Colwell to determine whether he could work from home or not.

She also rejected his argument that the company failed to properly consult about the vaccine policy before implementing it.

She said the direction to require staff to have a vaccine was both lawful and reasonable.

Finally, Ms Bissett said she accepted Colwell’s choice to refuse a vaccine, but said “that choice comes with consequences, as does every choice we make”.

“The Applicant did fail to comply with the Policy in that he failed to provide proof that he had received at least a first dose of the COVID-19 vaccination by 31 December 2021.

“Further, he made it abundantly clear that regardless of any policy prescription he had no intention of having a vaccine prior to 31 December 2021.

“In these circumstances I am satisfied that there was a valid reason for the dismissal of the Applicant.”

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