In what is being seen as a vital case given the current COVID-19 vaccine mandate environment, today the Full Bench of the Fair Work Commission has ruled that it was reasonable for an aged care facility to terminate an employee that refused to take a government mandated flu vaccination.
In July 2021 Aged care facility worker terminated for refusing to take the mandated flu shot, claiming an allergic reaction to a previous flu shot, manifesting as a rash. The employee claimed unfair dismissal.
The matter proceeded past the conciliation stage and was listed for hearing at the Commission where the Commission held that as there was a public health order that required the business to ensure that staff were vaccinated it rose to the level of an inherent physical requirement of the role and thus it was reasonable to dismiss the employee and accepted the expert evidence that the rash was likely chronic dermatitis and even if it was vaccine related it is a simple and treatable reaction and does not rise to the level of contraindication to receiving the vaccine.
The employee appealed to the Full Bench on the basis that she disagreed with the limited exemptions that were available.
Today the Full Bench upheld that the dismissal was fair and reasonable
In handing down the decision the majority noted the importance of this decision at a time that COVID-19 vaccinations are mandated for more and more industries stating that they “do not intend, in the circumstances of the current pandemic, to give any encouragement to a spurious objection to a lawful workplace vaccination requirement”.
In a dissenting view Deputy President Dean said the majority ruling “Never have I more strenuously disagreed with an outcome in an unfair dismissal application,” and outlined that this Full Bench decision “has denied [the worker] the protections afforded by the Fair Work Act in part because of ‘an inference that she holds a general anti-vaccination position”.
With vaccine mandates already in place for some fuel industry workers, and more expected shortly, this case highlights that where there is a mandate from the government there is protection to the business when an employee refuses to be meet the mandate.
However, the passionate dissent, and the complicating elements of COVID Normal should give businesses pause, particularly where mandates are potentially short term in nature. In this case the flu shot mandate is continual and ongoing, where the COVID-19 vaccine mandates are potentially shorter term and thus impacting the reasonableness of the response.
The bottom line is that vaccine mandates set by the business remain possible, but problematic (see; https://acapmag.com.au/2021/08/mandatory-vaccination-change/) and while government mandates are clear, and compliance will be required, any permanent action that impacts employment will need to be taken after careful consideration and consultation.
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Elisha Radwanowski BCom(HRM&IR)