As the COVID-19 vaccine rollout progresses, many employers are asking whether they can direct their employees to be vaccinated. At the time of writing this article, the general stance of both state and federal governments was that the COVID-19 vaccine would not be mandated for workers, however following the most recent outbreak in Victoria, the federal government is now reconsidering whether to mandate the vaccination for aged care workers. So far, only Queensland and Western Australia have issued public health orders mandating coronavirus vaccinations for employees in very specific settings, such as the hotel quarantine system.
So, in what circumstances can an employer direct an employee to receive a vaccine or comply with another health-related direction and in what circumstances can they be dismissed for refusing? The answer is highly fact-dependent and will turn on the particular industry and employee, the medical evidence available, and the stance taken by the Federal and relevant State or Territory governments.
Four recent decisions from the Fair Work Commission (FWC) provide a snapshot of its current approach to the imposition of vaccination policies and other safety procedures.
Yordanos Fesshatsyen v Mambourin Enterprises Ltd [2021] FWC 1244
In response to the pandemic, Mambourin, a disability support services provider, introduced a policy of recording the temperatures of its employees before they commenced their shift. Employees who recorded a temperature of above 38 degrees were required to immediately leave the site, isolate and notify management of the reading. Ms Fesshatsyen, the disability support worker in question, initially received an erroneous reading from the thermometer but, after a second attempt, recorded a temperature of 38.5 degrees. She assumed the thermometer was faulty and continued to work her shift. Ms Fesshatsyen was later summarily dismissed for failing to comply with a lawful and reasonable instruction and for causing serious risk to the health and safety of Mambourin’s vulnerable clientele and her co-workers.
The FWC had regard to Mambourin’s business and the gravity of the risk. It found that the requirement to comply with the temperature check procedure and the instruction to self-report any temperature in excess of 38 degrees to a manager were reasonable and lawful directions consistent with the terms and conditions of Ms Fesshatsyen’s employment. Her failure to comply with these directions, even once, was a valid reason for dismissal.
The risk to the safety of Mambourin’s staff and customers was paramount to the FWC’s determination that the summary dismissal had been appropriate.
Ms Bou-Jamie Barber v Goodstart Early Learning [2021] FWC 2156
Goodstart Early Learning (Goodstart), one of Australia’s largest childcare providers, has been found to have validly dismissed one of its Lead Educators after she refused to receive a free flu shot. In April last year, Goodstart introduced a new policy which required all of its employees to receive flu vaccinations unless they had a medical condition which made it unsafe for them to do so. Ms Barber refused the vaccination on the basis that she had a “sensitive immune system” and that she had experienced an allergic reaction 11 years prior. However, the only medical evidence she could produce in support of these claims were found to be “vague unsubstantiated accounts”. Multiple doctors refused to provide Ms Barber with a certificate stating she had a medical reason for being exempt from the vaccination. One certificate stated, “[Ms Barber] is saying she got an allergic reaction when she had the flu vaccine several years ago and afraid [sic] to get it again but we don’t have a record of her reaction in our surgery.”
Goodstart argued that it dismissed Ms Barber because vaccination was an inherent requirement of the role. The FWC did not accept this. However, it did find that the direction to be vaccinated was lawful and reasonable and through Ms Barber’s failure to comply with that direction, there was a valid reason to dismiss her. The FWC’s reasoning was largely based on the Ms Barber’s inability to provide “any material that [indicated] there was a genuine risk in her being vaccinated.”
Jennifer Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWC 1818
In a similar case, Sapphire Coast Community Aged Care (Sapphire), dismissed a receptionist in one of its high-care nursing homes after she refused to receive the flu shot. Under public health orders issued by the NSW government, employees were not permitted to enter aged care facilities unless they had an up-to-date flu vaccination. Therefore, Sapphire was legally bound to introduce its mandatory flu vaccination policy. The worker, Ms Kimber, claimed to have developed severe skin inflammation in response to a flu shot she had previously received and that “her internal organs were also affected”. However, she never reported this condition to Sapphire and there was no evidence of any diagnosis by a medical doctor or any absence from work. On the contrary, expert evidence suggested that it was “improbable” that the condition was caused by the flu shot.
In upholding the dismissal, the FWC found that Sapphire was correct to rely on the NSW Chief Health Officer’s media statement that the only accepted contraindications to the flu vaccine are anaphylaxis and Guillain-Barré syndrome. The FWC found that by refusing to be vaccinated, the receptionist could not perform the inherent requirements of her role and that by dismissing her, Sapphire had "acted in an objectively prudent and reasonable way". Key to this decision was the lack of contemporaneous medical evidence, and the NSW government’s directions on vaccination. The FWC also found that if a direction to be vaccinated had been given in these circumstances, it would have been lawful and reasonable.
Maria Corazon Glover v Ozcare [2021] FWC 2989
In a decision handed down last week, the FWC again found that an aged care provider validly dismissed one of its home-care employees after she refused a flu vaccination. Ozcare had introduced a mandatory flu vaccination policy and asked Ms Glover to provide medical evidence that supported her refusal to be vaccinated. Ms Glover’s medical certificate stated, “This is to certify that Ms Golver says to me she is allergic to Flu vaccine. She says that once she had Flu vaccine in the Philippines long back … & she developed anaphylaxis immediately after the vaccine.” Ms Glover refused to see a specialist to confirm whether she indeed had anaphylaxis.
The FWC found that Ms Glover’s evidence was simply her informing her GP that she believed that she suffered from the condition. The FWC also found that the direction to be vaccinated was lawful and reasonable, even though it went further than Queensland government directives that were in force at the time. In making its decision, the FWC gave weight to the vulnerable nature of Ozcare’s elderly clients and the additional regulation of the aged care industry.
Lessons for employers
Employers can learn a number of lessons from these cases.
Firstly, employers in the disability support services industry and similar can be confident that if they validly introduce a non-invasive COVID-19 policy, such as a temperature-check policy, to protect the health of their clients and workforce, the breach of such a policy by an employee is likely to give rise to a valid reason for dismissal.
Secondly, employers who validly introduce mandatory flu-vaccination policies may be able to establish that directing an employee to have a vaccination is a lawful and reasonable direction and if the employee refuses without good reason, they may be able to validly dismiss the employee when the following factors are present:
- The nature of the work makes the people in the workplace more susceptible to certain vaccine-preventable illnesses, such as in the aged care or childcare industries; and
- The vaccination policy accounts for medical exemptions.
At this stage, it remains to be seen whether the FWC will extend the scope of such reasoning to apply to the COVID-19 vaccine.
Lastly, employers can be confident that when state governments issue public health orders mandating vaccines in certain industries, having the vaccine will be considered an inherent requirement of the role. Any direction to workers to be vaccinated in such circumstances would also constitute a lawful and reasonable direction and so failure to comply with such a direction, would warrant dismissal (unless a valid reason not to comply exists).
This is a particularly important consideration in light of the federal government’s recent request of the Australian Health Protection Principal Committee to reconsider mandating the COVID-19 vaccine for aged care workers.
Employers should also bear in mind that the introduction of such a policy may require consultation under an award or enterprise agreement, so they should ensure that they comply with any such requirements.
How we can help
The law relating to vaccinations in the workplace is fast-changing and highly fact-specific. Please contact Russell Kennedy’s Workplace Relations, Employment and Safety Team for advice.
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