Gogulwar v H.B. Fuller Company Australia Pty Ltd

Gogulwar v H.B. Fuller Company Australia Pty Ltd [2025] FCA 1529 is a Federal Court appeal about dismissal during the COVID-19 vaccination direction period in Victoria. The employee refused to disclose his vaccination status, raised safety and other concerns, and was later dismissed from an on-site maintenance role.

The appeal was dismissed. On the material visible in the judgment, the central issue was not whether privacy law created a broad right to refuse the employer’s request. The real issue was whether the employer had taken adverse action for prohibited reasons under the Fair Work Act, or whether it had proved that it acted for different reasons connected with the employee’s inability to work on site under the legal settings then in force.

Mr Gogulwar worked at H.B. Fuller’s Dandenong South factory as a maintenance technician. That detail matters because his role involved maintaining plant on site. This was not a role that could simply be shifted to home-based work. During the pandemic, the Victorian Government introduced measures affecting work in Melbourne, including a vaccination requirement for people working other than from home.

The judgment records that on 4 October 2021 the company held a town hall meeting to explain the impending mandate. Employees were told that the direction would require vaccination or disclosure of vaccination status by 15 October 2021, and that the company would try to work with employees, including by considering leave arrangements. On 5 October 2021 the company sent a memorandum to employees stating that all workers would be required to validate their vaccination status and that workers who did not want to get vaccinated would not be permitted access to the workplace because of the government directive.

Mr Gogulwar did not simply ignore those communications. He challenged them. He queried the company’s email, raised concerns about consultation and safety obligations, and on 13 October 2021 lodged a WorkSafe Victoria complaint. In that complaint he said he disagreed with the Acting Chief Health Officer’s directions, referred to Fair Work rights, and complained that the mandate may involve discrimination, privacy issues and human rights concerns. He also said the company had not complied with consultation obligations under the Occupational Health and Safety Act 2004 (Vic).

On 15 October 2021 he met with a manager and was directed to disclose his vaccination status. He did not do so. The judgment notes competing accounts of parts of that discussion, including whether he had indicated an intention to take annual leave. The company’s witnesses denied knowing about the WorkSafe complaint during his employment, and the primary judgment, as summarised in the appeal reasons, recorded that they said they only became aware of it later.

On 19 October 2021 the company sent a show cause letter. It said that because the company did not hold a COVID-19 vaccine record for him, he had to be treated as unvaccinated under the health orders. As a result, he could not enter the site and resume normal duties. The letter said the company was considering termination because he could not fulfil the inherent requirements of his role, which was critical to maintaining equipment on site in a safe condition.

Mr Gogulwar responded and later sent a document described as a “Mandatory Vaccination Offer”. That document referred to informed consent, medical privacy and constitutional freedom from civil conscription in medical and dental services. It also sought an undertaking that a doctor or professor would take full legal, medical and financial responsibility for any injuries caused by the company’s vaccination mandate. The company did not respond to that document by accepting its terms. Instead, it continued the show cause process.

On 25 October 2021 the company sent further correspondence stating that it had serious concerns about his failure to comply with a reasonable and lawful direction to provide information about his vaccination status, and that as a result he was not capable of fulfilling the inherent requirements of his role. That same day he sent two medical certificates stating that he had a medical condition and would be unfit for work. On 27 October 2021 the company terminated his employment. The termination letter said he had failed to follow a lawful and reasonable direction and that he was no longer able to meet the inherent requirements of his role because he was prohibited from attending the premises for work and there were no alternative ways for the role to be performed.

The appeal came from an earlier Federal Circuit and Family Court decision that had dismissed Mr Gogulwar’s claims. According to the judgment, he had sought relief for alleged contraventions of sections 340(1), 343, 351 and 352 of the Fair Work Act. Those provisions deal with general protections, including adverse action because of workplace rights, coercion, discrimination and dismissal because of temporary absence due to illness or injury.

The catchwords show the main appellate issue very clearly. The question was whether the primary judge had erred in finding that H.B. Fuller rebutted the statutory presumption in section 361 of the Fair Work Act. That presumption matters because once an employee alleges that action was taken for a prohibited reason, the employer must prove otherwise. The judgment also identifies an issue about the relevance of whether the employer’s direction was lawful and reasonable when deciding what the employer’s actual reasons were.

That point is important for business readers. In many workplace disputes, parties argue about whether a direction was lawful and reasonable. But in a general protections case, that is not always the end of the analysis. The court still needs to identify the actuating reasons for the employer’s conduct. In practical terms, the employer must persuade the court that the dismissal happened because of the operational and legal problem it says existed, not because the employee made a complaint, exercised a workplace right, or had some protected attribute.

The available text also shows that the employee’s complaint to WorkSafe and his references to Fair Work, discrimination and privacy were part of the factual setting. That does not mean each of those topics became a separate successful legal claim. The appeal court’s task was to review whether the primary judge had made an error in dealing with the pleaded Fair Work claims and the reverse onus under section 361.

The Federal Court dismissed the appeal. That much is certain from the formal orders and the catchwords. The catchwords also state that the primary judge had found the employer rebutted the section 361 presumption, and the appeal was dismissed despite the employee’s challenge to that conclusion.

On the available text, the safest explanation is that the appeal court did not accept that the primary judge had made the errors alleged. The judgment records the employer’s position that, because it did not hold the employee’s vaccination record, he had to be treated as unvaccinated under the Victorian health orders, could not enter the site, and therefore could not perform the inherent requirements of his on-site maintenance role. The termination letter also relied on his ongoing failure to follow what the employer described as a lawful and reasonable direction.

What should not be overstated is the privacy angle. The employee clearly raised privacy concerns and referred to the Privacy Act in his “Mandatory Vaccination Offer”. But the available judgment does not show the court deciding a standalone privacy law question or laying down a broad rule about all employer requests for medical information. The visible reasoning is framed around Fair Work general protections and the employer’s reasons for dismissal.

Because the text available for this page is truncated before the full reasons are reproduced, it is better to avoid stronger claims than the judgment clearly supports. The reliable public takeaway is that the employer succeeded on appeal because the court did not disturb the finding that the employer had proved its reasons were not the prohibited reasons alleged.

For employers, the most useful lesson from this case is about evidence and process. If an employee has made complaints, raised safety concerns, or referred to privacy rights, a later dismissal can still be lawful. But the employer must be able to prove that the decision was made for a different reason, and that reason must be supported by documents, witness evidence and the surrounding circumstances.

Start with the source of the requirement. In this case, the employer relied on Victorian public health directions and the fact that the role required attendance on site. Businesses should do the same kind of groundwork in any comparable situation. Ask what legal rule, contractual requirement or genuine operational need supports the request. If there is no clear source, the request becomes harder to justify.

Next, keep the information request narrow. The available judgment shows the company asking employees to validate vaccination status and provide evidence in the form of a vaccination certificate. For modern businesses, the broader point is to collect only what is needed for the identified purpose. If the purpose is workplace access or legal compliance, avoid collecting extra health information that is not necessary for that purpose.

Then focus on process. The judgment records a sequence of meetings, emails, reminders, show cause letters and invitations to respond. That kind of paper trail matters. It helps show what the employer knew, what it asked for, what the employee said in response, and why the final decision was made. A weak or inconsistent process makes it easier for an employee to argue that the stated reason was not the real reason.

Businesses should also be careful with managers' language. If a manager reacts badly to an employee complaint, dismisses a safety concern out of hand, or treats a privacy objection as misconduct in itself, that can create risk. The better approach is to acknowledge the concern, explain the business position, and keep the focus on the legal or operational issue that actually needs to be resolved.

Finally, do not treat this case as a current rulebook for vaccination mandates. It arose from a specific period in 2021 when Victorian public health directions were in force. Those directions changed over time and no longer provide a general template for present-day decisions. Businesses should check the current law, current Fair Work principles and the current facts before relying on any pandemic-era case.

The judgment highlights several categories of evidence that often decide general protections disputes. First are the employer’s contemporaneous communications. Here, those included the town hall meeting, the 5 October 2021 memorandum, follow-up requests for vaccination evidence, and the show cause letters. These documents helped frame the employer’s case that it was responding to the public health directions and the employee’s inability to work on site.

Second are the employee’s own communications. Mr Gogulwar’s WorkSafe complaint and his “Mandatory Vaccination Offer” showed that he was actively objecting to the mandate and raising legal concerns, including privacy concerns. In a general protections case, those communications can matter in two ways. They may support an employee’s argument that he exercised workplace rights or made complaints. But they also form part of the factual context in which the employer’s reasons are assessed.

Third is decision-maker knowledge. The extract records that the company’s witnesses denied knowing about the WorkSafe complaint during the employee’s employment. That kind of evidence is often central because an employer cannot usually be said to have acted for a prohibited reason if the relevant decision-makers did not know about the alleged protected activity. The appeal outcome suggests the employer’s evidence on its reasons was accepted, or at least not shown to be wrongly accepted by the primary judge.

Fourth is the role itself. The company repeatedly pointed to the inherent requirements of the maintenance technician role and the need for attendance at the Dandenong South site. Businesses should note that inherent requirements arguments are strongest where the role genuinely cannot be performed another way and the employer can explain why.

Fifth is timing. The sequence from the mandate communications, to the refusal to disclose status, to the show cause process, to termination was part of the evidentiary picture. Timing alone does not prove a prohibited reason, but it often shapes how a court assesses the credibility of the employer’s explanation.

Before directing an employee to provide sensitive information or before taking disciplinary action for non-compliance, businesses should ask a series of practical questions.

What is the legal or operational basis for the request? In this case, the employer relied on public health directions and the on-site nature of the role. If your business cannot identify a clear basis, pause before proceeding.

What exactly do we need to know? Ask only for the minimum information needed. If the issue is whether a person can lawfully attend a site, the request should be framed around that issue rather than becoming an open-ended demand for medical details.

Who knows what, and when did they know it? If the employee has made a complaint or raised a workplace right, record who received that complaint and who made the later decision. This can become critical if the business later needs to prove its reasons.

Have we given the employee a fair chance to respond? Show cause letters, meetings and written invitations to respond are not just formalities. They help demonstrate procedural fairness and clarify the issues before a final decision is made.

Are we relying on current law? Pandemic-era directions, emergency orders and temporary interpretations can change quickly. Businesses should confirm the current position rather than assuming an old rule still applies.

The appeal judgment is dated 9 December 2025 and records that the appeal was heard on 14 November 2025. It was an appeal from a Federal Circuit and Family Court of Australia (Division 2) decision dated 1 June 2023. The employee had commenced the original proceeding on 25 January 2022 after his employment ended on 27 October 2021.

The judgment available for this page includes the orders, catchwords, background facts, statutory framework and part of the reasons, but it cuts off before the full analysis is reproduced. That means the result is clear, but some caution is still needed when describing the court’s detailed reasoning on each pleaded claim.