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"Vaccination Mandates and Reinstatement: A Landmark Case Unfolds at DP World"

A recent decision concerning the reinstatement of DP World workers dismissed for refusing COVID-19 vaccination has left unresolved questions about the legality of their employer's actions. Vice President Ingrid Asbury previously awarded compensation but declined to reinstate the 24 workers dismissed in 2021 for not adhering to the company's double-vaccination mandate. This decision has raised significant discussion about workplace mandates and consultation requirements.

Vice President Asbury found that DP World had not consulted with the Maritime Union of Australia (MUA), the affected Sydney and Brisbane workers, or occupational health and safety representatives before enforcing the mandate. Additionally, the company failed to inform the workers of the reasons for their dismissals or provide them with a proper opportunity to respond. Despite these findings, Asbury upheld the company's dismissal reason, noting the workers' significant contribution to the situation and the ongoing validity of the vaccination mandate.

"Vaccination Mandates and Reinstatement: A Landmark Case Unfolds at DP World"
"Vaccination Mandates and Reinstatement: A Landmark Case Unfolds at DP World"

One of the workers who complied with the mandate was reinstated, but the vice president dismissed the other reinstatement claims. She maintained that DP World's right to enforce a lawful and reasonable policy in response to a workplace health and safety issue should not be overridden by a small group of non-compliant employees. She also pointed out that the MUA had the option to challenge the mandate's introduction and the subsequent dismissals but chose not to pursue such actions.

In a similar case, the Fair Work Commission (FWC) had ruled that BHP's failure to adequately consult with workers at its Mt Arthur mine regarding vaccination deadlines rendered the mandate unlawful and unreasonable. The DP World workers argued that Vice President Asbury misapplied this precedent by not deeming DP World's mandate unlawful due to a lack of consultation, as required under the NSW and Queensland WHS Acts. They claimed this oversight invalidated the policy and, consequently, their dismissals.

The workers contended that this issue was significant and of general importance, as it addressed whether a directive issued in breach of legal requirements could be considered unlawful. However, the appeal bench, comprising Deputy Presidents Tony Saunders, Michael Easton, and Tony Slevin, endorsed Vice President Asbury's decision and denied permission to appeal. They noted that the workers did not raise the issue of the mandate's unlawfulness due to non-compliance with WHS Acts during the initial hearing, making it too late to introduce this argument on appeal.

The bench acknowledged that the question of lawfulness concerning non-compliance with consultation obligations had not been determined by a Full Bench of the Commission. Nonetheless, they agreed with the vice president's assessment that DP World's mandate was a reasonable measure in response to the circumstances of late 2021, despite the company's failure to fulfil its consultation duties.

The case of *Jason Pintley & Ors v DP World Sydney Limited & Anor* [2024] FWCFB 257 has highlighted the complexities and ongoing debates surrounding workplace vaccination mandates and the procedural requirements for their implementation. As legal interpretations continue to evolve, the implications of such decisions will remain a critical area of interest for employers, unions, and workers alike.

For those interested in a deeper understanding of this case, you can read the full decision on the Fair Work Commission's website.

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