Does an employee’s failure to be vaccinated in accordance with a public health order or even an employer policy amount to a repudiation of the employee’s employment contract?
The decision in Cordiano v Love & Co Real Estate Pty Ltd [2022] FWC 467 suggests no.
The facts involved employer insistence on compliance with a public health direction and employee reliance on a recent bout of COVID-19 providing an exception for vaccination on the basis that medical advice said it was “dangerous” for Ms Cordiano to be vaccinated so soon after COVID-19.
When Ms Cordiano failed to be vaccinated by a particular date the result was that her employment was terminated. The termination letter cited her inability to perform the inherent requirements to work in compliance with the Victorian public health direction.
When Ms Cordiano issued a general protections dismissal application the employer raised a jurisdictional objection that Ms Cordiano had not been dismissed but had repudiated her employment contract by not being vaccinated.
The employer representative gave evidence at the jurisdictional hearing that he “felt that there was no other option than to accept that Ms Cordiano no longer intended to be bound by her employment contract because she refused to get the COVID-19 vaccine”.
The Commission found that by the time of termination of employment Ms Cordiano was an “excepted person” under the relevant public health direction and any repudiatory conduct in not being vaccinated was thereby being cured.
The Commission was therefore satisfied that employment had ended at the employer’s initiative.
In deciding this case, the Commission relied on the following principles:
- The test of repudiation is objective.
- Repudiation is a question of fact.
- Repudiation is a serious matter and not to be inferred lightly.
- Repudiation may be the result of a single act or an accumulation of conduct.
- Repudiation does not of itself end a contract as it is necessary for the innocent party to elect to accept the repudiation.
- Repudiatory conduct may be “cured” by the party in breach but only before acceptance of the repudiation.
For more blogs on Covid-19 and its effect on the workplace and employment, visit our resources page. If you would like further advice of any aspect of repudiation and its effect on employment contracts please contact our workplace relations lawyer on (03) 9614 7111 or melbourne@nevettford.com.au.