Vax mandates remain hot topic as FWC Full Bench upholds dismissal of flu jab abstainer

In September, a majority Full Bench of the Fair Work Commission (FWC) further endorsed the July 2020 sacking of a receptionist in a NSW aged care facility for refusing to receive the flu shot in accordance with her employer’s policy, denying her permission to appeal an earlier FWC decision upholding her dismissal, but the receptionist’s representatives have flagged a Federal Court challenge, emboldened by the passionate dissenting view of one FWC member.

Despite Deputy President Dean assessing Commissioner McKenna’s April 2021 decision as “a serious injustice to [the receptionist] that required remedy”, adding she had never “more strenuously disagreed with an outcome in an unfair dismissal application”, the majority Full Bench agreed her dismissal was not unfair, noting the receptionist’s objection to receiving the flu jab went beyond her purported adverse reaction of 2016, concluding she “held a broader anti-vaccination position”.

In stark contrast to the dissenting view espoused by the Deputy President, the majority of Vice President Hatcher and Commissioner Riorden accepted that the receptionist had failed to satisfactorily explain how her claimed medical contraindication prevented her from complying with her employer’s policy to receive the flu jab, which had been underpinned by various NSW health orders in effect at the time, identifying the only suitable exemption from compliance resulted where a medical practitioner certifies the person held an identified medical contraindication. Instead, in seeking to verify her exemption from receiving the flu vax, the receptionist merely completed the necessary form indicating she possessed a specified contraindication, which did not qualify as an accepted medical contraindication to receiving the flu vaccine.

In accepting the evidence advanced by the employer’s witness, being a specialist immunologist, that the receptionist’s claimed adverse reaction of a skin rash/swelling did not constitute an accepted medical contraindication, the majority determined that the receptionist’s GP, “did not, objectively speaking, certify that [the receptionist] had a medical contraindication in the [relevant] form, and that [the receptionist] was at the time of her dismissal legally prohibited from working at [the aged care facility]”. Vice President Hatcher and Commissioner Riorden went on to conclude, “that plainly made the continuation of her employment untenable”.

In refusing permission to appeal, the majority ruled the receptionist had been given “ample opportunity” by her employer to receive the vaccine or demonstrate a medical contraindication, which she failed to do. “No other consideration could operate to render her dismissal unfair”, they found. Vice President Hatcher and Commissioner Riorden added, “in that context, the grant of permission to appeal would be entirely lacking in utility, since even if any of the appeal grounds were upheld, the [receptionist’s] application could never ultimately succeed.”

Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWCFB 6015 (27 September 2021)

Various mandatory vaccination challenges underway

In addition to identifying the appeal decision would be challenged before the Federal Court, the receptionist’s representatives, G&B Lawyers, have established a fund seeking to raise $10 million dollars to fight mandatory vaccination directives of State and Federal Governments, whilst also offering a dedicated service for certain Western Australian health care workers to challenge public health orders of the WA Government (imposing mandatory COVID-19 vaccination).

Similar challenges are underway in various states, with employees including police officers, paramedics, nurses and teachers seeking to challenge public health orders mandating COVID-19 vaccination before a relevant court. The cases have attracted extensive media interest though many experts remain sceptical that success is an achievable outcome given, in all instances, the applicants are seeking to overturn public health orders of a State or Federal Government rather than employer-imposed policies.

On Friday, 15 October 2021, Justice Robert Beech-Jones of the NSW Supreme Court dismissed two legal challenges to health orders requiring COVID-19 vaccinations for workers in NSW. The cases had been brought by 10 plaintiffs, being workers in the health, aged care, construction and education industries, with His Honour rejecting all of the asserted grounds of invalidity raised by both sets of plaintiffs.

Vaccinated workers welcomed by employers, co-workers

In contrast to the small number of workers actively disputing mandatory vaccination, payroll software company ‘ELMO’ has recently reported that data gathered as part of its ‘ELMO Employee Sentiment Index for the September Quarter’ indicates 70% of 1,000+ survey participants support employers requiring their employees to be vaccinated against COVID-19 (up from 62% in June quarter). In addition, 58% of respondents indicated they would feel uncomfortable working alongside an unvaccinated colleague, up from 44% in June.

Similarly, business analytics firm, Purpose Bureau, has analysed the data of three leading recruitment websites, and established the number of job ads requiring vaccination has increased more than 12-fold since May. In May, it found 15 job posts for every 10,000 requiring COVID-19 vaccination, but this increased to 71 in August and 203 in September. During this time, the number of employees working for organisations requiring new recruits to be inoculated grew from 150,000 to 500,000.

In this vein, more employers have indicated their intent to introduce mandatory vaccination in their workplaces, with resources giant, BHP, the most recent large employer to identify COVID-19 vaccination will be mandatory on its worksites by the end of January 2022. National childcare employer, Goodstart, which employs over 17,000 workers across Australia, has also confirmed it will introduce mandatory vaccination for its workforce (with employees in NSW & Victoria already subject to public health directives requiring vaccination), having previously had its mandatory flu vax policy endorsed by the Fair Work Commission. These employers join other big businesses, such as SPC and QANTAS, who each confirmed publicly they would enforce mandatory vaccination for their employees earlier this year (see our related article).