Vaccinations are back in the spotlight with the government’s continued roll-out of COVID-19 vaccines, and the release of the yearly influenza vaccine. There has been a rise in cases where employees have refused to be vaccinated due to various reasons. These cases have mostly occurred in the care sector, where employees are working with immunocompromised people.
The Fair Work Commission has dealt with a number of matters, with several decisions that have concluded that it is lawful to dismiss an employee who is not vaccinated and who refuses to become vaccinated. This is under the basis that employers have broad powers in directing tasks to employees provided they are ‘lawful and reasonable’. However, as with any area of law, nothing is ever straightforward, as evidenced by the cases below.
Also, of relevance is that the federal government has recently made it mandatory for aged care workers to receive a COVID-19 vaccine. Whilst this does not diminish the importance of the following cases, especially in relation to other vaccines and the issue of mandatory vaccines as a whole, it is worthwhile to consider the latest changes implemented by the federal government.
1. Barber v Goodstart Early Learning [2021] FWC 2156
The case that brought vaccinations into the realm of employment law and unfair dismissal, Barber v Goodstart Early Learning [2021] FWC 2156, involved an employee’s refusal to be vaccinated despite the existence of a organisational policy-making influenza vaccines mandatory (unless the employee had a medical condition rendering it unsafe for them to be vaccinated). It had been noted that the applicant refused to be vaccinated on the basis she had claimed to have had a previous allergic reaction to a flu vaccine, however it was determined that there was insufficient evidence to prove that. It is noted that it was reasonable to dismiss the employee due to their involvement with vulnerable groups, in which safety and quality care are of utmost importance.
Whilst the Fair Work Commission noted that being vaccinated is not an ‘inherent requirement’ for the role to be performed, it is an avenue in upholding a requirement of duty of care. However, the Fair Work Commission made it clear that if the employee worked in another role or another industry, there may be a case for unfair dismissal.
2. Jennifer Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWC 1818
Not long after the ‘Barber’ decision, vaccination reared its head in the case of Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWC 1818. Kimber was a receptionist at an aged care facility at the time that a public health order (PHO) was released, which prohibited people from entering aged care facilities without an up-to-date vaccine. As a result of the PHO, Sapphire Coast implemented a policy making vaccines mandatory with medical exemptions. Kimber refused to be vaccinated on the grounds that she suffered an allergic reaction when she had a vaccine years earlier. She provided numerous medical certificates although none of them were recent, and was stood down by Sapphire Coast on the basis that it was not a sufficient exemption in accordance with the PHO, hence failing to follow a direction to have the vaccine.
Furthermore, the Fair Work Commission noted that whilst Kimber wasn’t directed by Sapphire Coast to have the flu vaccine, such direction would’ve been lawful and reasonable in light of the PHO.
3. Maria Corazon Glover v Ozcare [2021] FWC 2989
A month after the decision of Kimber, vaccination again became a hot topic for the Fair Work Commission as highlighted in the case of Maria Corazon Glover v Ozcare [2021] FWC 2989. Glover worked as a community care assistant with elderly clients. Ozcare amended its policy regarding vaccination to make it mandatory for all workers, with no exemptions. This amendment was in response to the government health directive at the time, which whilst did not apply to the nature of Glover’s work as a community care assistant, the rationale behind the directive meant it applied to such workers in order to ensure the safety of the elderly. Glover refused the vaccine on the basis she was anaphylactic to it, having claimed she had experienced a vaccine reaction over 50 years prior, which led to her dismissal.
The Fair Work Commission ruled that Ozcare had a ‘lawful and reasonable’ directive to ensure all care workers who interact with their elderly clients are vaccinated, due to them being more at risk. It was noted that such directives being reasonable are dependent on the nature of the business, ruling that it is reasonable in the aged care industry for an employer to adopt such measures to protect their clients and employees against health risks.
Key Learnings
If there is a policy allowing medical exemptions against vaccines, the employer is required to determine whether an exemption is valid based on the medical opinion of the employee’s doctors
Mandatory vaccinations are not an ‘inherent requirement’ but this is dependent on the nature of the role and industry, as well as relevant health orders or other laws.
If you require support or advice in relation to vaccinations and refusal from employees, reach out at enquiries@karenansen.com or give us a call on 0407 863 017.