1
Fair Work Act 2009
s.365—General protections
Shane Varichak
v
COG Regional Team Pty Ltd
(C2021/7133)
DEPUTY PRESIDENT COLMAN MELBOURNE, 28 JANUARY 2022
Application under s 365 – casual employee refused to provide proof of vaccination to employer
– employer ceased to roster applicant for work – employer ready to roster applicant if he
becomes eligible to attend work – no dismissal – application dismissed
[1] The following is an edited version of a decision delivered ex tempore earlier today.
[2] Mr Shane Varichak has made an application under s 365 of the Fair Work Act 2009
(Act) for the Commission to deal with a general protections dispute involving an alleged
dismissal under Part 3-1 of the Act. He contends that COG Regional Team Pty Ltd (company)
contravened various provisions of Part 3-1 of the Act by dismissing him from his casual
employment as a forklift driver wholly or partly for proscribed reasons. Mr Varichak seeks
reinstatement and compensation.
[3] The Commission generally does not have a determinative function in relation to
applications brought under s 365 unless the parties agree to the Commission arbitrating the
matter. Rather, the Commission’s role is to convene a conference and to issue a certificate to
the applicant, if it is satisfied that all reasonable efforts to resolve the dispute have been or are
likely to be unsuccessful. However, where the respondent denies that it dismissed the applicant
and objects to the application on this basis, the Commission is required to determine whether
the applicant was dismissed (see Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 and
Ahmad v MPA Engineering Pty Ltd [2020] FWCFB 5365).
[4] The company contends that it has not dismissed Mr Varichak, and that it has simply
obeyed the law by refusing to allow him to attend the workplace because he has not provided
evidence of his COVID-19 vaccination status. In this regard, the Victorian government’s
COVID-19 Mandatory Vaccination (Workers) Directions (No 5) (Directions) have relevantly
required that certain employers not permit employees to work outside their home unless they
have provided to the employer evidence of vaccination or a medical exemption. The company
submits that Mr Varichak remains a casual on its books, and that it will offer him shifts if he
becomes eligible to attend the workplace. Mr Varichak contends that the company terminated
his casual employment, or constructively did so, because it prevented him from attending the
workplace and refused to roster him for work.
[2022] FWC 186 [Note: An appeal pursuant to s.604 (C2022/1056) was
lodged against this decision – refer to Full Bench decision dated 10 May 2022
[[2022] FWCFB 37] for result of appeal.]
DECISION
AUSTRALIA FairWork Commission
http://www.fwc.gov.au/documents/decisionssigned/html/2022FWCFB37.htm
[2022] FWC 186
2
[5] The following facts are uncontroversial. At the time of the alleged dismissal, Mr
Varichak was employed as a casual forklift driver at the company’s Avalon distribution centre.
On 14 October 2021, Mr Varichak was advised by the company that he must provide proof to
the company that he had received his first dose of the COVID-19 vaccine, proof of a vaccination
booking, or evidence of a medical exemption. Mr Varichak was told that if he did not provide
this information, he could not be rostered to work. Mr Varichak did not provide such evidence
to the company. On 21 October 2021, the company wrote to Mr Varichak, stating that he could
not be rostered for work at the distribution centre because he had not provided proof of his
vaccination status.
[6] Mr Varichak gave evidence that his beliefs prevented him from receiving the COVID-
19 vaccine, and that his vaccination status had no bearing on his ability to do his job. He said
that he was not advised of any vaccination requirement when he commenced employment, and
that because of his beliefs the public health orders did not apply to him. He also said that other
employees who had not received the vaccine were permitted to continue working.
[7] Mr Nicholas Greig, a manager, gave evidence that the company was subject to the
Directions and was required to ensure that unvaccinated workers did not work outside their
home from 22 October 2021, unless they had provided the required vaccination evidence. Mr
Greig said that because Mr Varichak did not provide this information the company was
prohibited from offering him shifts, but that Mr Varichak remained part of the company’s pool
of casuals who are offered shifts based on operational requirements. Mr Greig produced a
current extract from the company’s human resources management system which records Mr
Varichak’s employment status as ‘active’. He tendered an extract of another casual employee
whose employment had ended, which records a status of ‘terminated’. Mr Greig said that if Mr
Varichak became eligible to work on site, the company would roster him for work. I accept Mr
Greig’s evidence. It was clear and convincing and consistent with the documentary evidence.
[8] In my opinion, the company did not dismiss Mr Varichak.
[9] The company was subject to the Directions and required to prevent any employees who
had not provided evidence of having received the COVID-19 vaccination, or evidence of a
medical exemption, from attending the work site. Mr Varichak did not provide this information
to the company. It was therefore required by law not to allow him to enter the work site. By
choosing not to become vaccinated, Mr Varichak rendered himself unable to perform an
inherent requirement of his role as a casual forklift driver, namely to be lawfully able to attend
the workplace. However, the company did not dismiss Mr Varichak. Instead, it told him that it
was subject to a legal requirement not to allow him to attend the workplace unless he provided
proof of vaccination.
[10] Mr Varichak remains a casual on the company’s books. His employment is recorded as
active in the company’s human resources management system. Proceeding on the basis that the
definition of ‘dismissed’ in s 386 of the Act applies to applications under s 365, it is clear that
Mr Varichak’s employment relationship with the company has not been ‘terminated on the
employer’s initiative’ (see Khayam v Navitas English Pty Ltd [2017] FWCFB 5162). The
company remains ready to deploy Mr Varichak on shifts. He is currently unable to perform his
duties, because he has decided not to get vaccinated. If Mr Varichak becomes vaccinated, or if
government requirements otherwise allow, the company will roster him for work.
[2022] FWC 186
3
[11] The jurisdictional objection is upheld. The application is dismissed.
DEPUTY PRESIDENT
Appearances:
S. Varichak for himself
T. Popowicz for COG Regional Team Pty Ltd
Hearing details:
2022
Melbourne
28 January
Printed by authority of the Commonwealth Government Printer
PR737851
EWORK ISSION THE SEAL OF THE F
