Aged Care Worker Dismissed for Failing to Provide Vaccination Evidence Loses Unfair Dismissal Claim
Representing one of the very first unfair dismissal claims determined by the Fair Work Commission (FWC) involving mandatory vaccination for workers under a public health order, an aged care employee who refused to provide evidence of being vaccinated to her employer has failed to convince the FWC her dismissal was unfair.
Background
The worker was employed as a part-time care service employee at the St Joseph’s Retirement Community, a residential aged care facility in Sandgate, New South Wales operated by Calvary Health Care (Calvary). The worker was dismissed after she failed to comply with a requirement that she provide proof of vaccination against the COVID-19 virus. Under the Public Health (Covid-19 Aged Care Facilities) Order 2021 (PHO) made by the Minister for Health and Medical Research, Brad Hazard, the worker could only enter the aged care facility from 9 am on 17 September 2021 if she had at least one dose of a COVID-19 vaccine. The PHO also required the worker to provide the employer with vaccination evidence. The PHO set out a number of exemptions, including arrangements for those unable to be vaccinated due to a medical contraindication. The requirements in the PHO were also reflected in a vaccination policy which the employer introduced in July of 2021.
The employer communicated with its employees in the months leading up to 17 September 2021 about the requirements of the PHO. On 29 August 2021, the worker wrote to her employer and raised a number of issues, including:
• asking the employer to “provide a copy of the law that evidences Covid 19 Vaccines are mandatory.”
• asserting that the employer’s request for medical information from employees was “in breach of an individual’s right to privacy under the Privacy Act 1988.”
• raising concerns about the existence of any insurance cover in relation to risks associated with taking a COVID-19 vaccine.
• raising issues associated with the Commonwealth Constitution, the Biosecurity Act 2015, Article 6 of the UNESCO statement on Bioethics and Human Rights, Article 1 of the Nuremburg Code, and the Australian Government’s Immunisation Handbook.
• asking questions about a range of matters, including whether the employer had sought advice “regarding the risk to anyone subject to a mandated Covid-19 vaccine, and that the Public Health Order directive is lawful.”
In a letter dated 1 September 2021, the employer replied to the worker pointing out the risks associated with COVID-19 and confirmed that it would continue to adhere to public health orders. The employer also explained to the worker that she could make an exemption request and informed her that it was “committed not to misuse the information [provided by an employee] for any purpose other than to meet our obligations under work health and safety legislation”. As to the concerns raised by the worker relating to issues such as the constitutionality of mandatory COVID-19 vaccination and alleged breaches of privacy, the employer said:
“To the extent those views are right or wrong are irrelevant for these purposes. To be clear, Calvary is not suggesting that you must have a COVID-19 vaccination, just that you require COVID-19 vaccination to be an employee of Calvary.
The choice as to whether you obtain a COVID-19 vaccination remains yours.”
In a letter to the employer dated 2 September 2021, the worker again raised issues concerning the Privacy Act, the prohibition of force and coercion of medical services under the Constitution, and unlawful stand-downs under the Fair Work Act. The employer responded on 6 September 2021 by again explaining the risks associated with COVID-19, particularly in an aged care environment, and stated that public health orders are binding. The employer stated that it considered the worker’s correspondence to be a conscientious objection to mandatory COVID-19 vaccination. It said:
“Accordingly we have assessed your position against our policy and NSW Public Health Orders and declarations from the Chief Medical Officer regarding limiting work to a single facility and consider that we have no alternative options for your continued employment.
We now seek you to ‘Show Cause’ as to why your employment with Calvary should continue in the absence of you becoming vaccinated or providing evidence to that effect.”
The worker responded on 7 September 2021 raising many of the same issues addressed in her earlier communications. Six days later, the worker wrote to her manager asking why her roster had been ‘wiped’ after 17 September.
The employer sent a letter of termination dated 15 September 2021 to the worker which concluded in the following terms:
“Having regard to the above Calvary gives formal notice that your employment is terminated effective 15 September 2021 on the basis that it is clear you have no intention to obtain the COVID-19 vaccination and you will be prohibited to work under the Public Health Order.
Your notice period will be paid in lieu and all unpaid wages and applicable accrued entitlements shall be paid to you in due course.”
FWC decision
Deputy President Saunders of the FWC had to determine whether the worker’s dismissal was harsh, unjust or unreasonable. The Deputy President accepted the PHO applied to the worker in relation to her employment and as the worker had not provided her employer with any evidence she was vaccinated against COVID-19 or was subjec to a medical contrindication, the effect of the PHO was to prohibit the worker from entering the workplace from 9 am on 17 September 2021. The Deputy President said that as a result, the worker wsa not able to fulfil the requirements of her role from that time. If the employer had allowed the worker to enter the workplace after 9 am on 17 September 2021, it would have been in breach of the PHO and its accreditation as an aged care provider may have been put at risk. Further, there were no alternative duties for the worker to perform. The Deputy President was satisfied that the employer had a sound, defensible and well founded reason to dismiss the worker.
The Deputy President considered an argument from the worker that the employer could have stood her down on unpaid leave until the PHO expired. The Deputy President rejected that argument, saying that there would not have been any real utility in standing the worker down for an indefinite period when, even without the PHO, the employer would still have had an obligation to take reasonable steps to ensure the health and safety of its employees and the vulnerable residents of the facility.
In terms of the worker’s contention that she was dismissed because she exercised a right to privacy in relation to medical information, the Deputy President did not accept that the worker was dismissed because she exercised a right to privacy in respect of medical information. The Deputy President also did not accept that the employer breached the Privacy Act as the worker had alleged. The Deputy President continued by observing that even if a breach of the Privacy Act had occurred, it would need to be balanced against other relevant considerations:
In the present case, the Public Health Order was binding on both [the worker] and Calvary and its effect was to prevent [the worker] from attending her workplace to do her job. [The worker] had no capacity to work in her job with Calvary from 9am on 17 September 2021. That situation was not likely to change in the foreseeable future after 17 September 2021. There was no other work available for [the worker] with Calvary. It is not unfair for an employer to bring an employment relationship to an end when an employee, through no fault of the employer, has no capacity to work for the employer at the time of the dismissal and into the foreseeable future, and the employee is afforded procedural fairness before a decision is made to terminate the employment relationship.
The Deputy President found the dismissal was not unfair and dismissed the unfair dismissal claim.
Shepheard v Calvary Health Care T/A Little Company Of Mary Health Care Limited [2022] FWC 92