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)

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)

In related news

This month, IR Minister, Christian Porter, commenced consultations with employer groups and Unions to seek to work through complex considerations attaching to the rollout of COVID-19 vaccines, specifically in relation to an employer’s right to require workers be vaccinated.

Employer groups have expressed they would appreciate government guidance being administered to the community on the importance of vaccination and Unions have agreed that education of workers (and the community) will be critical to maximum take-up of the vaccine by the public.

Minister Porter recently commented that the “overwhelming majority” of employers should assume they will have no ability to force employees to get the vaccine though ACTU Secretary, Sally McManus, said that Unions will accept if medical experts recommend it should be mandatory for some sectors (e.g. hotel quarantine, ICU workers, aged care, etc).

Generally, an employer’s ability to require workers receive the COVID-19 vaccination will turn on whether the requirement constitutes a lawful and reasonable direction, which would be determined by various factors, such as those considered by Commissioner Hunt as outlined above.