The Fair Work Commission (FWC) has given a worker permission to go ahead with an unfair dismissal claim after she was put on indefinite unpaid leave for refusing to be vaccinated for the flu.
The case raises the issue of whether employers can make vaccination an inherent requirement of a position. This is a question many employers will need to address, given the forthcoming roll-out of the COVID-19 vaccination program.
The case before the FWC:
The worker was employed by an organisation providing a range of aged care, retirement living, disability care, respite care, nursing, allied health and dementia advisory and support services. Her role was that of a care assistant, visiting people in their homes and administering care.
Her objection to receiving a flu shot stems from her childhood in the Philippines. She claims that at the age of seven she received a vaccination for influenza and had an adverse reaction, suffering anaphylaxis immediately after receiving the vaccine. She said her parents told her she could have died.
Each year her employer has implemented its flu vaccine procedure. For over 10 years the worker completed her employer’s Influenza Vaccination Declination Form, declining the vaccination due to her stated allergies. Until 2020 she was permitted to continue in her role, despite not being vaccinated.
In April 2020, however, her employer updated its immunisation policy in the light of the situation with COVID-19 and national guidelines for working in health and community care settings. Henceforth, flu vaccinations would be mandatory for all employees working in its residential aged care facilities or in community care with direct contact with clients.
The worker declined to comply with the new policy, as a result of which her employer informed her that she would no longer be rostered for work, due to the risk she could present to the organisation’s clients.
As the organisation was operating in Queensland, where the worker was employed, the employer was cognizant of the direction issued by that state’s chief health officer under the Public Health Act 2005, stating that employees cannot enter a residential aged care facility from 1 May 2020 if they do not have an influenza vaccination.
Considering this, her employer had made it an inherent requirement of the worker’s role that she must be immunised annually against influenza.
The employer contacted her saying that despite the medical certificate she had provided, it was not entirely clear whether she really had a medical condition justifying her refusal to be vaccinated. The email stated that she would no longer be rostered to work with clients and her annual and long service leave would run out on 4 October 2020.
The worker understood from this that her employment was terminated as of that date, despite her expressed willingness to work using personal protective equipment and to take other safety precautions.
She considered that this amounted to unfair dismissal that was harsh, unjust or unreasonable, and applied to the FWC for an unfair dismissal remedy.
The commissioner considered her employer’s position that she had not actually been dismissed, deciding that her employment had effectively come to an end in October 2020 and giving her leave to pursue her unfair dismissal claim.
The commissioner noted the importance of considering each circumstance of a person’s role and workplace in determining whether an employer’s decision to make vaccination an inherent requirement of the role is a lawful and reasonable direction.
She commented that while a court or tribunal may be tasked with determining whether the employer’s direction is lawful and reasonable, in the court of public opinion, it may not be an unreasonable requirement. It may, in fact, be ‘an expectation of a large proportion of the community’.
She also noted that when the case is heard, evidence may be put forward as to whether the worker’s refusal to be vaccinated was reasonable, given the advancements in medicine and vaccinations between 1963 (when she was last vaccinated) and 2020, and her refusal to seek current specialist medical advice as to whether it was safe for her in 2020 to be vaccinated against influenza.
Source: Workplace Assured