Last month, the Fair Work Commission (FWC) handed down a decision which looks at the considerations employers must make in deciding whether a vaccination is an inherent requirement of an employee’s role.

A former Ozcare employee filed an unfair dismissal claim after refusing a mandatory flu vaccine due to an allergic reaction suffered as a young child some 57 years ago.

The FWC found that the employment had ended after the employee had exhausted all paid leave entitlements and Ozcare was unable to roster her shifts until she had been vaccinated.

With the COVID-19 vaccine soon to be rolled out, this decision offers a timely look at whether an employer can make a lawful and reasonable direction for vaccinations to be an inherent requirement of the job.

Commissioner Hunt took the view that each circumstance of the person’s role and the workplace in which they work are important to consider in determining an employer’s position on mandatory vaccinations.

Background

The former Ozcare employee worked as an at-home care assistant since December 2009.

The assistant elected not to receive annual influenza vaccinations after suffering an anaphylactic reaction upon receiving the vaccine at age seven.

For the past 10 years she refused the vaccine by completing the employee influenza vaccine declination form.

In April last year, the assistant received a letter from Ozcare stating that, in light of the global pandemic, it had updated its Employee Immunisation Policy to make influenza vaccines mandatory for all employees that have direct client contact.

The assistant wrote back, informing Ozcare that she was unable to receive the vaccine due to allergies. Ozcare then informed her that it was unable to roster her for work from 1 May. This followed the Chief Health Officers’ direction which required all employees entering a residential aged care facility to be vaccinated as of 1 May.

Over the following weeks, Ozcare provided further information regarding its position on mandating flu vaccinations and urged her to reconsider her decision not to be vaccinated. Despite this, the assistant maintained her refusal to be vaccinated and inquired about her personal leave and other entitlements to be paid to her. She attached a valid medical certificate and a vaccine declination form.

Ozcare then replied, requiring her to discuss this matter with Ozcare’s Injury Management Advisor before making any decisions and that she would be on paid personal leave until further notice.

In late August the assistant contacted Ozcare asking what process she needed to follow to return to work. Ozcare advised her that its policy in relation to the flu vaccine had not changed and that it was an inherent requirement of her role. She was also told that her annual and long service leave would be exhausted by 4 October.

The assistant was under the impression that her employment ended on 4 October when her paid leave entitlements were exhausted.

On 9 October, the former assistant made an application for unfair dismissal. Following the unfair dismissal claim, Ozcare wrote to the assistant informing her that her employment was ongoing, that she had not been dismissed and she was on unpaid leave because she was unable to be rostered on due to medical reasons in declining to be vaccinated against influenza.

Employer’s actions meant employment had ended

Commissioner Hunt acknowledged that for the past decade Ozcare had permitted the assistant to decline a flu vaccination and continue to work. She also noted that in changing its policy to require all employees working in aged care residential facilities or providing in-home care to be vaccinated, the assistant was unable to perform any work.

The Commissioner invited Ozcare to make an undertaking that for the following three months of unpaid leave it would inform the assistant that it would consider dismissing her if she were unable to be vaccinated. Ozcare declined and advised that it would review her employment in January 2021.

The Commissioner found this an “entirely unsatisfactory proposition” as the assistant “could be held in limbo for months and years while Ozcare reviewed its position.”

The Commissioner noted that this indefinite period would have a much greater impact on the assistant than it would on Ozcare.

The Commissioner determined that Ozcare’s actions in refusing to roster the assistant beyond 4 October when her leave exhausted meant the assistant’s employment ended on 4 October.

Further, the Commissioner noted that the former assistant can no longer meet the inherent requirements of her role, yet Ozcare’s refusal to relax them for her means an impasse has been met. The former assistant was allowed to pursue her unfair dismissal claim.

Implications for employers

In coming to her decision, Commissioner Hunt noted there has been significant discussion around the legality of employers requiring employees to be vaccinated given the serious health issues in relation to COVID-19.

She took the view that “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,” Commissioner Hunt said.

“It may be that a court or tribunal is tasked with determining whether the employer’s direction is lawful and reasonable, however in the court of public opinion, it may not be an unreasonable requirement. It may, in fact, be an expectation of a large proportion of the community.”

The COVID-19 vaccine roll-out will create various challenges and considerations for employers particularly in establishing a position of mandating vaccinations for employees to attend work.

The potential for employers to adopt a ‘no jab, no job’ policy is likely to become the most significant employment law issue of 2021, and continues to attract increased commentary.

AMMA is guiding its resources and energy industry members through the workplace implications and advocating for a nationally-coordinated approach.

To support members in this area AMMA has prepared a COVID-19 Vaccine Member Guide which provides updates on key developments with the vaccine roll-out and other workplace considerations.

AMMA will continue to update its members on material developments in relation to the COVID-19 vaccines and will circulate updated editions of this Member Guide as necessary.

Earlier this month, AMMA also hosted a 30-minute webinar on key COVID-19 vaccine issue.

For your copy of the guide, video link to the webinar or for any questions about vaccinations for your organisation, please contact 1800 627 771 or email [email protected]