Dismissals Held Lawful for Anti-Vaxxer
The Fair Work Commission has just handed down a landmark decision that confirms it is lawful to dismiss an employee who refuses to receive a mandated vaccine.
The mandatory vaccination declaration from the Chief Health Officer only requires employers to refuse access to sites – it does not make dismissals of those employees lawful. However, this ruling goes much further in supporting employers to enforce mandated vaccinations.
What Does this Decision Mean?
This decision likely means that a dismissal of an employee who does not get a mandated COVID-19 vaccine, will be lawful. There are also a number of cases currently in the New South Wales Supreme Court which are challenging similar issues for the COVID-19 vaccine. These cases will be decided shortly and will provide further guidance.
Reason for Termination
The aged care provider terminated Ms Kimber after she failed and/or refused to receive the Government mandated influenza vaccine. Initially, Ms Kimber produced a letter from a Chinese medicine practitioner which did not meet the requirements of a valid medical exemption. After agreeing to be placed on unpaid leave, Ms Kimber then produced a further letter from a medical practitioner purporting to be a medical exemption. However, the aged care provider and the Commission did not accept it on the basis that:
- The letter provided that Ms Kimber had an allergic reaction to her last influenza vaccination. However, it did not appear as though the medical practitioner had treated Ms Kimber at that time;
- The only evidence provided of the allergic reaction were undated photographs;
- Ms Kimber had never complained of the allergic reaction or taken leave due to the allergic reaction; and
- Ms Kimber had also refused to get vaccinated based on her views of its efficacy and side effects.
Basis of the Case
The case was brought as an unfair dismissal, meaning that the dismissal must have been harsh, unjust or unreasonable. This must include an assessment of both the substantive reason for the dismissal and the procedural steps taken to dismiss the employee.
It was found the procedural steps were acceptable given:
- The aged care provider provided notice of the mandatory vaccination requirements and made vaccinations readily available;
- Ms Kimber was permitted to take a period of unpaid or paid leave;
- There were several meetings held with Ms Kimber, including a final meeting prior to her dismissal; and
- There was a termination meeting. This was held via telephone as Ms Kimber could not lawfully return to site.
Lawful Reason for Termination
Next, the Commission considered the reason given for the dismissal, which was failing to follow a ‘lawful and reasonable direction.’ The lawful and reasonable direction was failing to comply with the mandatory vaccination order of the NSW Minister for Health.
The Commission was quick to decide that it was a lawful direction as it was enforcing an order of the NSW Minister for Health. The Commission then held that being a law, is inherently reasonable.
This case provides timely guidance, given the latest announcement to increase the industries which are subject to mandatory vaccination. If you would like any advice about the mandatory vaccinations, please contact a member of Taurus Legal Management on (03) 9481 2000 or firstname.lastname@example.org.