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Pilot reinstated after being sacked for vax hesitancy

A pilot has won his job back after being dismissed for not complying with his airline's COVID-19 vaccination policy.

15 Aug 2022

The Fair Work Commission (FWC) ordered the reinstatement of the senior pilot after identifying procedural unfairness in the dismissal from Rex Airlines (Rex).

The employee was a captain with a pilot seniority ranking at Rex and had been with the airline for 27 years.

Rex had dismissed the pilot over failing to comply with Rex's COVID-19 vaccination policy, which required all frontline staff to be fully vaccinated by 1 November 2021.

Before Rex released its policy on 8 October 2021, the pilot had developed vaccine hesitancy. He had tried to work with Rex to explain his situation and find alternative options where his employment could have been maintained for a temporary period.

One of the solutions was to utilise him only in the simulator, on a temporary basis, while he sorted out his personal medical issues. With about 80% of his daily work in the simulator, it would have required only a small roster change to make this work.

He also wrote a letter to Rex's executive chairman, outlining a list of options to reconfigure his temporary role until he could be fully vaccinated and return to work.

Instead, the pilot was offered a permanent casual position as a simulator instructor, a change that would have resulted in him losing his current position along with his Wagga Wagga basing where he had been for 19 years.

The dismissal

On 1 December 2021, the pilot was called to a meeting with HR which he thought was to discuss options regarding his situation but was instead dismissed.

In the FWC, the pilot argued that the dismissal was harsh, unjust and unreasonable. His case wasn't about whether Rex’s mandate was lawful, but a question as to whether the direction was reasonable given his particular circumstances and how the airline had handled his situation.

He submitted that he had proactively offered several productive solutions, but did not even get a telephone call from either of his direct managers and had been "blindsided" by the termination meeting.

Rex submitted that the pilot's application should be dismissed because it had a valid reason for dismissal and was not otherwise harsh.

The airline said the pilot's personal circumstances must be seen against the duty of Rex to afford equal treatment to its 1400 employees in the implementation of the policy, in circumstances where differential treatment between employees can bring about unfair dismissal.

Rex argued it did everything it reasonably could have and that a "fair go all round" was afforded to accommodate the pilot's circumstances and his wish to remain unvaccinated.

Commissioner Donna McKenna said non-compliance with the vaccination policy by the initial or extended date was a valid reason for dismissal. However, the dismissal was characterised by substantive procedural unfairness arising from the failure of Rex to discuss alternative options with the pilot.

The options the pilot proposed were not discussed with him, including why Rex's considerations of his reconfiguration-style options were rejected.

“Continued employment with Rex in the non-frontline casual simulator position simply was not discussed with [the pilot] as to the terms and conditions that Rex’s case now indicates were proposed to be involved – particularly in relation to the all-pervading employment importance of the seniority system at Rex under the Pilot’s EA,” Commissioner McKenna said.

Rex also did not discuss any alternatives to dismissal, such as allowing the pilot to access his leave, which was an option included in Rex's vaccination policy.

"Further substantive procedural unfairness is the fact that there were no discussions relating to the dismissal, or discussion of other potential options short of immediate dismissal –relevantly, such as accessing paid leave entitlements or leave without pay consonantly with the approach in the policy,” Commissioner McKenna said.

“Furthermore, there were other options around work/leave that could (at least potentially fruitfully) have been discussed and/or at least considered before the dismissal was affected in circumstances where Rex’s case was that there was insufficient work for full-time redeployment into the simulator work."

The FWC ordered Rex to reinstate the pilot and maintain continuity of employment/service. However, the Commissioner did not consider an order to restore lost pay/superannuation appropriate in this case.