Fair Work upholds dismissal of worker who refused to get the flu shot

Employment lawyers say a decision on Monday to uphold the dismissal of an aged care worker who refused to get the flu shot last year should provide some reassurance to employers looking to implement a mandatory vaccination policy in their business. 

However, they are also warning that the decision is not a “blanket precedent” that directing employees to get vaccinated will always be lawful and reasonable, and employee claims for medical exemptions will need to be considered on a case-by-case basis. 

On Monday, the full bench of the Fair Work Commission sided with NSW aged care facility Sapphire Coast Community Aged Care, which dismissed a receptionist in July 2020 after the employee refused to get vaccinated against influenza. 

The employee — who argued they had medical grounds for not getting vaccinated — subsequently lodged an unfair dismissal claim against the business, which the Fair Work Commission dismissed in April 2021. 

At the time, Commissioner McKenna found that the employee did not provide evidence to show that she had an allergy which prevented her from receiving the vaccine. 

The employee tried to appeal this decision on the grounds that an error was made in the initial decision and that the decision was a matter of public interest, however, the full bench ultimately denied this appeal. 

In their judgment, Vice President Adam Hatcher and Commissioner Bernie Riordan said they did not want to “give any encouragement to a spurious objection to a lawful workplace vaccination requirement”.

Trent Hancock, principle at Jewell Hancock Employment Lawyers, says the ruling appears to align with similar views previously expressed by at least four other members of the Fair Work Commission in relation to mandatory influenza vaccinations.  

As such, he says the decision should provide “some level of comfort” to employers wanting to introduce mandatory COVID-19 vaccination policies; however, he also cautions employers that the principles from this decision, and other similar ones, may not automatically apply in other circumstances. 

“The decision here, both at first instance and on appeal, turned substantially on the medical evidence presented by both parties,” he explains. 

“In particular, the Fair Work Commission founder [the employee] failed to provide certification from a medical practitioner that she had a medical contraindication to the vaccination. This was ultimately fatal to her claim.”

Hancock says other similar decisions have also been made in relation to mandatory vaccination directions in childcare and health care settings, which also have public health orders that require employees to be vaccinated. 

“Employers should not be too quick to assume that the principles from these cases can be applied to employees who refuse vaccination outside of these particular sectors or in circumstances where there is no public health order mandating vaccination,” he says. 

Hall & Wilcox partner Fay Calderone agrees, and adds that the decision provides good guidance for circumstances where there is a public health order and an employee claims to have a medical condition that would exempt them from the mandatory vaccination order.

“This provides good authority that it needs to fit within the medical contraindications [of the order] and that other alleged medical conditions are not going to cut it,” she says. 

While Calderone says employers may still need to assess whether an employee’s condition constitutes a medical contraindication on a case-by-case basis, in this particular case, the evidence presented to the Commission was inconsistent and there were “questions around credibility”. 

Calderone says the judgment also includes a “helpful” indication or signal about how the Commission may view mandatory COVID-19 vaccination directions in certain settings.

While the employee said her preferred remedy to the dismissal was reinstatement, she also indicated that she may not be willing to receive the COVID-19 vaccination, despite a federal order for all aged care workers to do so. This ‘unpreparedness’ suggests the worker “holds a general anti-vaccination position”, said the commissioners. 

“It also further points to the lack of utility in granting permission to appeal, since there could be no possibility of granting [the employee’s] preferred remedy of reinstatement absent an advance commitment from her to take the COVID-19 vaccine,” they said. 

Dissenting commissioner’s views on mandatory vaccinations “concerning”

The Fair Work Commission’s decision was not unanimous, with deputy president Lyndall Dean strongly dissenting from the majority decision and in one instance, likening mandatory vaccinations to “a system of medical apartheid and segregation in Australia” which all Australians should “vigorously oppose”. 

“It is an abhorrent concept and is morally and ethically wrong, and the anthesis of our democratic way of life and everything we value,” she said in the lengthy dissenting view that also suggested the majority ruling by Hatcher and Riordan would be considered an “anomaly”.  

Both Hancock and Calderone say Dean’s comments are concerning, although Hancock said they are unlikely to present a challenge for employers in aged care, health care or childcare whose vaccination policies contain reasonable medical exemptions. 

“Deputy President Dean was in the minority in this decision and her views are unlikely to be shared by other members of the Fair Work Commission,” he said.

While Calderone agrees, she says the comments could be used as “ammunition” and are likely to be quoted verbatim by those who oppose mandatory vaccinations in workplaces.