Workplace Law

Workplace Law News and Articles

Oct 112021

In March, we asked whether employers can require their staff to obtain a Covid-19 vaccination.  Back then, we said:  Not Yet!

Six months on, the Courts and Fair Work Commission are yet to rule on this question.  However, the Fair Work Commission has just ruled that an aged care employer can require employees to be vaccinated against influenza when it is required by NSW public health orders.

In the early phase of the pandemic in 2020, nursing home receptionist Jennifer Kimber was dismissed from her employment for refusing to take an influenza vaccine.  She had been a conscientious objector to the flu vaccine, that had just been made mandatory for all aged-care employees under NSW public health orders.  Ms Kimber claimed, without medical evidence acceptable to the FWC, that she suffered a severe allergic reaction to a previous flu vaccination, and said she was also concerned about the safety of vaccinations in general.  Ms Kimber lodged an unfair dismissal application with the Fair Work Commission.

In April 2021, the Fair Work Commission rejected her claim for unfair dismissal.  The Fair Work Commission found that due to the requirements of the NSW public health orders, a direction by an aged-care employer to an employee to have an influenza vaccination, unless a medical contraindication existed, was lawful and reasonable.  It also found that while a person cannot be vaccinated against their will, and while those with valid contraindications could continue to work in aged-care, Ms Kimber was unable to demonstrate this in her case.

Ms Kimber appealed the decision that she was not unfairly dismissed, and she lost her appeal last week in Jennifer Kimber v Sapphire Coast Community Aged Care.  The minority opinion of Deputy President Lyndall Dean made the newspapers, when she lambasted mandating vaccinations across a whole industry as “a lazy and fundamentally flawed approach to risk management”.

The public health orders made influenza vaccinations mandatory in a small number of industries.  This decision indicates that in those industries only genuine medical contraindications will be considered valid exemptions to influenza vaccination.

Lawful and Reasonable Directions

Employers can give their employees lawful, reasonable directions. Employees must follow those directions.

To be “lawful”, the direction must be consistent with the employment contract, with any industrial award or EBA and any laws that apply, such as discrimination laws.  To be “lawful” the direction need not be required by any law, it only needs to be not contrary to any law. It is unlikely that a requirement to be vaccinated would contravene health and safety laws, apart from in exceptional cases.

To be “reasonable”, the direction must be reasonable in all the circumstances.  The process is like any risk assessment.  Employers should look at the practical aspects of having unvaccinated staff, and the measures required to assure safety where staff are not vaccinated.  As vaccinated people can still get and transmit the COVID-19 virus, it would in most cases be reasonable to require vaccination for staff that have contact with other staff or customers where they can transmit the virus.

“The last thing you want is an unfair dismissal claim” says Peter McNamara.  “The decision will probably be appealed by Ms Kimber to the Federal Court.  If you do require mandatory vaccination, you should have a fair process, to avoid claims of constructive and unfair dismissal, not to mention adverse action and discrimination claims.”

Employers with any questions about whether your business can mandate vaccinations to keep your staff and customers safe, should contact Peter McNamara.

Aug 112021

The Government and the High Court have confirmed that casual employees cannot double dip on annual leave loadings.  Casuals are paid a casual loading of around 25%.  The casual loading is meant to cover permanent entitlements like annual leave. Until last week, the Federal Court was saying that casuals can double dip:  see Casual gets […]

Mar 012021

The Fair Work Ombudsman (FWO) and Safe Work Australia (SWA) are telling employers and employees that by and large: employers will be unable to require vaccination by their employees. employees will be unable to refuse to work because a colleague is unvaccinated. Peter McNamara says: “Employers should still be aware of public health orders could […]

Nov 202020

Employers should be alert to current worker entitlements: Unfair Dismissal High Income Threshold; Compensation Cap for Unfair Dismissal; Redundancy Tax Free Amount; Employment Termination Payments (ETP) Lower Tax Rate Cap; Superannuation Maximum Contribution Base; and Civil Penalties for Breaches of the Fair Work Act. Unfair Dismissal High Income Threshold From 1 July 2021, the High […]

Jul 242020

Although Israel Folau recently reached a confidential settlement with Rugby Australia, the termination of Folau’s contract reinvigorated debate about religious freedom for employees and their contracts. Intuitively, perhaps, employers should only be able to restrict employees’ conduct within the workplace, whether that be an office or a rugby pitch. However, this simply is not the case! The rise of social […]

May 052020

Employers can now subscribe to industry specific COVID-19 Safety Updates at the link here. Employers should direct those responsible to subscribe to the updates for their industry sector. The initiative arises from the National Cabinet decision to develop nationally-consistent, industry-specific work health and safety (WHS) guidance on COVID-19 through Safe Work Australia, who will have […]

Feb 182020

Employment lawyers are often faced with this complex legal question: do post-employment restraints survive termination if an employer breaches or repudiates a contract of employment? This issue was settled in a recent Victorian Supreme Court case that held that post-employment restraints do not survive the termination of an employment contract where an employer breaches or […]

Feb 142020

  Employers are responsible for making and keeping accurate employee records. Record-breaking fines have been issued to employers for contraventions of employee record-keeping obligations, such as details of overtime hours, penalty rates and loadings. A Caltex franchisee and its owner were fined $80,190 and $16,038 each for falsifying employee records of the wage rates paid […]