Dismissal claim to proceed for flu vax abstainer

Commissioner Hunt of the Fair Work Commission (FWC) has confirmed that a former personal care worker is entitled to pursue her unfair dismissal claim after her employment was deemed to have concluded when her employer placed her on indefinite unpaid leave for refusing a mandatory flu vaccination.

The personal care worker (PCW) reportedly refused to receive the flu vaccination on allergy grounds, as she claimed to have suffered anaphylaxis straight after getting one at age seven, in the Philippines. Although the employee had successfully worked for Ozcare for over 10 years without having to receive the flu jab, the mandatory requirement was introduced by the employer in April 2020, in line with a public health directive in force in Queensland at the time, that stated workers could no longer enter residential aged care facilities unless they had an influenza vaccination. Even though the PCW had never worked in residential aged care facilities and, the public health directive exempted those who may have a “medical contraindication to the influenza vaccine”, Ozcare insisted the requirement to receive an annual flu vaccination had become an “inherent requirement” of the PCW’s role (which consisted of community care services with direct client contact).

With the PCW refusing to receive the flu jab, she initially accessed her annual leave and long service leave until those entitlements were exhausted by early-October. Despite the public health directive having been lifted by this time, her employer remained resolute that they could not roster her for further shifts, as she had not received the vaccination. The employer advised the PCW that she would be on unpaid leave indefinitely and sought to argue this did not constitute termination of her employment.

In contrast, Commissioner Hunt found the notion of the employee being on indefinite unpaid leave to be an “entirely unsatisfactory proposition” and determined the employment ended when the employer refused to roster the PCW for further shifts. The Commissioner noted that an “impasse” was reached when the PCW could not comply with what the employer defined as the inherent requirements of the role and the employer refused to relax those requirements for her. Commissioner Hunt determined the employer’s actions brought the employment to an end and dismissed the employer’s jurisdictional objection that the employment had not been terminated.

With the matter to be programmed for Hearing, a decision will be awaited with great interest. The outcome will hopefully provide an important reference in relation to the hotly debated issue of employers being able to impose a requirement of mandatory vaccinations on workers, be it for influenza, COVID-19 or otherwise.  

In the context of the current case, the Commissioner conceded that the prospect of a vulnerable person contracting influenza, and then COVID-19, was “very concerning”. In concluding her decision, Commissioner Hunt commented:

“In my view, each circumstance of the person’s role is important to consider, and the workplace in which they work in determining whether an employer’s decision to make a vaccination an inherent requirement of the role is a lawful and reasonable direction. Refusal of such may result in termination of employment, regardless of the employee’s reason, whether medical, or based on religious grounds, or simply the person being a conscientious objector.”

Moving forward, Commissioner Hunt expected the employer to lead evidence as to the nature of the vulnerabilities of their clients, the kinds of ailments they may suffer from, and the potential effects of those individuals contracting influenza from an unvaccinated employee, even if the employee is correctly wearing all available PPE. In addition, the Commissioner suggested evidence may also be led as to the advancements in medicine and vaccinations between 1963 and 2020, and the PCW’s refusal to seek current specialist medical advice as to whether it was safe for her, in 2020, to have received the flu vaccination.

Glover v Ozcare [2021] FWC 231 (18 January 2021)

UPDATE – Employee not unfairly dismissed

In determining the matter, Commissioner Hunt observed that the PCW’s evidence of her supposed allergy amounted to no more than informing her GP that she believed she suffered from the condition, adding that the PCW’s role “was not that of a widget maker in a widget factory where her status as an unvaccinated employee might not matter”. Instead, the Commissioner accepted the employer’s evidence that its community-care employees could potentially become influenza “super-spreaders”, finding the decision to mandate influenza vaccinations for all of its client-facing employees was necessary to “safeguard its clients and employees as far as it is practicable to do so”.

Ultimately, Commissioner Hunt assessed the employer’s mandatory flu vaccination policy for all client-facing roles to be “lawful and reasonable”, finding that “there was a valid reason for the dismissal having regard to [the PCW’s] capacity and [the employer’s] operational requirements”.

Having determined that the dismissal was not harsh, unjust or unreasonable, Commissioner Hunt dismissed the PCW’s application.

Glover v Ozcare [2021] FWC 2989 (26 May 2021)

In related news

In November of last year, Deputy President Asbury of the FWC also pondered whether a childcare worker may have unreasonably refused a lawful direction when she declined to receive the flu vaccination, despite there being no apparent medical condition preventing her from complying with the employer’s policy which imposed the requirement.

The Deputy President dismissed the employee’s unfair dismissal application, which had been lodged one day out of time, determining there was insufficient grounds to warrant granting an extension. In doing so, Deputy President Asbury briefly considered the employee’s potential obligation to have received the flu vaccination.

Whilst stopping short of concluding the employee’s case lacked merit, the Deputy President noted that it was at least equally arguable that the employer’s mandatory vaccination policy was “lawful and reasonable in the context of its operations which principally involve the care of children, including children who are too young to be vaccinated or unable to be vaccinated for a valid health reason”. Deputy President Asbury observed, prima facie, the employer’s policy was “necessary to ensure that it meets its duty of care with respect to the children in its care, while balancing the needs of its employees who may have reasonable grounds to refuse to be vaccinated involving the circumstances of their health and/or medical conditions”. The Deputy President added that, “It is also equally arguable that the [childcare worker] has unreasonably refused to comply with a lawful and reasonable direction which is necessary for her to comply with the inherent requirements of her position, which involves the provision of care to young children and infants.”

Arnold v Goodstart Early Learning Limited T/A Goodstart Early Learning [2020] FWC 6083 (18 November 2020)

Goodstart has subsequently had the enforceability of its mandatory flu vax policy endorsed by the FWC, with Deputy President Lake finding another long-serving employee was not unfairly dismissed when her employment was terminated in August 2020, over her refusal to receive the flu jab citing concerns she would experience an adverse reaction. See our related article.