Being dismissed for refusing to take the COVID-19 vaccine is controversial and we are getting calls daily on this topic Given the recent lockdowns in Sydney and Melbourne, state and federal governments are increasingly emphasizing the vaccine as the most effective method to control the COVID-19 pandemic and prevent further lockdowns. But can your employer embrace this call-to-arms and make it mandatory for you to get the vaccine in order to maintain your employment? Is this an unfair dismissal?
The Fair Work Commission has not, as of yet, clearly decided whether this is the case. But what we do know is that there is no uniform answer, each case must be decided on its own facts.
The Commission recently elaborated on the role of mandatory vaccine policies in Glover v Ozcare  FWC 2989.
This is also particularly relevant now that SPC the large food processing and canning company, today (4/8/2021) announced it is mandating that to work at the company in the future you must be vaccinated.
Glover v Ozcare
Ms Glover was a 64-year-old care assistant that delivered aged-care to Ozcare clients in their homes. She refused the influenza vaccine, under Ozcare’s mandatory immunisation policy for all client-facing roles, on what she alleges was an anaphylactic reaction to the flu shot when she was seven years old. After exhausting her leave entitlements, Ms Glover was dismissed by Ozcare as they were no longer offering her shifts.
The Fair work Commission decided that Ms Glover was not unfairly dismissed because Ozcare’s direction to get the flu shot was lawful and reasonable. Because Ms Glover refused a lawful and reasonable direction, she was considered to no longer meet the inherent requirements for her role.
The direction was lawful, notwithstanding that it went above and beyond the Aged Care Direction by the Queensland state government at the time (which required anyone who entered or remained on aged-care premises to be vaccinated against influenza). The Fair work Commission observed that it remained lawful because no employee was being physically forced to get the jab. The prospect of termination if an employee did not get vaccinated was lawful.
In deciding that the direction was reasonable, the Commission paid significant regard to the vulnerability of its patients. Ultimately, the Commission accepted that the mandatory immunisation policy was a reasonable business decision to protect and retain its elderly clients. Ms Glover was not “a widget maker in a widget factory where her status as an unvaccinated employee might not matter”.
What does this mean for the COVID-19 vaccine?
The unfair dismissal case of Glover v Ozcare shows us that there are multiple factors at play in determining whether you can be dismissed for refusing to take the COVID-19 vaccine. Relevant factors in determining whether your employer can lawfully and reasonably require you to take the jab include:
- The industry you work in and whether you are around vulnerable members of the community
- The importance of vaccination to the survival of your employer’s business
- The importance of vaccination to your particular role within your employer’s business
- Whether any other appropriate exemptions or alternatives can be offered to you in the course of employment (such as changing from client-facing to back-of-house)
- The reason for your refusal (it may constitute discrimination if your refusal is based on medical or religious reasons)
- If your refusal is based on medical reasons, the quality of your medical evidence
There will inevitably further cases in the Fair Work Commission that will tell us more about the role of COVID-19 vaccines in other industries. Until then, stay safe! Your welcome to call us for advice on 1800 333 666 anytime for advice regarding your workplace issue, unfair dismissal or general protections claims.