A timely reminder as flu season approaches 3 min read
The Fair Work Commission (FWC) has handed down two further decisions upholding the dismissal of employees in the aged care industry after they refused to comply with mandatory influenza vaccination directions.
- These cases lend support to the ability of employers in high-risk industries (such as aged care and child care) to direct their employees to be immunised.
- Employers will have stronger grounds to impose and strictly enforce a mandatory vaccination policy where they have overarching legal obligations under public health orders.
- It is open to employers to challenge medical evidence provided by employees to justify their refusal to participate in a mandatory vaccination policy, particularly where that evidence does not align with public health advice regarding medical contraindications.
Ms Glover was employed by Ozcare in the role of a care assistant, which required her to work in close proximity with elderly clients.
In April 2020, Ozcare amended its workplace employee immunisation policy to mandate that employees receive the influenza vaccination. These amendments were in response to Aged Care Directions issued by Queensland's Chief Health Officer.
Ms Glover refused to undertake the vaccine because when she was a child she had experienced an anaphylactic reaction to the influenza vaccination. Ms Glover's refusal to accept the influenza vaccine meant she was unable to take on any further shifts after April 2020 pursuant to Ozcare's amended immunisation policy. Ms Glover commenced proceedings in the FWC claiming she had been unfairly dismissed.
The FWC concluded that Ms Glover's dismissal was not unfair because Ozcare had a lawful and reasonable basis to mandate the vaccination of all client-facing employees.
In a high-risk context where aged care clients would be particularly susceptible to influenza, the FWC found this to be a reasonable direction issued to employees. The FWC noted that the reasonableness of an employer's direction should be assessed in light of the managerial prerogative of the business. In the context of the aged care industry, it is reasonable for an employer to safeguard its clients and community-care employees against health risks such as influenza transmission.
Ms Glover's claim was therefore dismissed as there had been a valid reason for the dismissal and it was not considered harsh or unfair.
In April 2020, Sapphire Coast Community Aged Care (Sapphire Coast) implemented a mandatory flu vaccination policy as a result of public health orders in force at the time. The orders, implemented by the NSW Minister for Health, prohibited any person from entering or remaining on the premises of an aged care facility without an up-to-date flu vaccine, subject to limited medical exemptions.
Jennifer Kimber was a receptionist at one of Sapphire Coast's facilities. She refused a flu vaccination, claiming she had suffered an allergic reaction (a skin condition) to the flu vaccine in 2016. Following her refusal, Sapphire Coast stood down, then dismissed, Ms Kimber, forming the view that her condition was not one of the accepted contraindications to the flu vaccine under the public health orders. Ms Kimber had provided a letter from a Chinese medicine practitioner, two letters of support from medical practitioners stating she had a contraindication to the vaccine, and a certified medical contraindication form. Sapphire Coast rejected this evidence on the basis of advice regarding contraindications set out in a press release from the Chief Medical Officer.
The FWC found that Ms Kimber's dismissal was not harsh, unjust or unreasonable. As a result of the public health orders, Ms Kimber was not permitted to enter or remain at the facility without an up-to-date flu vaccine and was therefore unable to perform the inherent requirements of her role. Further, Sapphire Coast would have been subject to financial penalties if it had allowed her to enter or remain at the facility, in breach of the public health orders.
The FWC accepted expert evidence that it was improbable that the skin condition Ms Kimber experienced in 2016 was connected to the flu vaccination. This, and a lack of contemporaneous medical evidence regarding Ms Kimber's alleged reaction to the vaccine in 2016, caused the FWC to form the view that Ms Kimber had not established that her skin condition was a result of the flu vaccination.
Sapphire Coast also claimed that it terminated Ms Kimber's employment on the basis that she had failed to follow a lawful and reasonable direction to have the flu vaccination. Despite the FWC finding that no direction had actually been given by Sapphire Coast, it indicated that any such direction would have been lawful and reasonable in the circumstances of the public health orders.