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.