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Dismissed for refusing to take the vaccine

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not-getting-the-vaccine
No one likes needle, are you volunteering or are you forced?. Taking one for team Australia as we force ourselves out of lockdowns. Dismissed for refusing to take the vaccine is still a concern for workplaces and dismissal cases are still making their way through the courts and commissions.

Dismissed for refusing to take the vaccine

As of April 2022 employees are still getting dismissed for not getting vaccinated. Is it fair?, its not for me to say, its what the courts and tribunals decide that matters. I will state this i don’t like seeing people losing seriously good careers, people with upwards of 20-30 years service, families suffering because someone won’t get vaccinated. Dismissed for refusing to take the vaccine will always be controversial.

As 2022 progresses, my view is that Australia will reach a fork in the road. Either everybody is vaccinated if you want to work. Similar to police checks. Or it will go the other way, as the pandemic subsides, or just everybody going back to normality (whatever that means) and employers won’t care less if your vaccinated or not.

You-cannot-be-bullied-into-being-vaccinated.
You cannot be bullied into being vaccinated. Whether you can perform the inherent functions of the role by not being vaccanated is the question. A “fall back” postion / argument for many non vaccanated employees is that you can work from home. This postion is changing the longer the country is out of the lock downs and the pandemic.

Being dismissed for refusing to take the COVID-19 vaccine is controversial

Being sacked in any circumstances is tough, being dismissed for refusing to take the vaccine, is controversial as it gets Being dismissed for refusing to take the COVID-19 vaccine is controversial. 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. To 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 [2021] 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.

Can-I-be-dismissed
Can I be dismissed? Will this be a way of life? Living with COVID and various flu’s is part of modern workplace relations that both the employee and the employer have to grapple with.

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 immunization 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”.

Dismissed-or-refusing-to-take-the-vaccine
Is it going to be the new normal? It appears so, but i’m sure a drug company will invent a non invasive solution or treatment to deal with COVID or similar viruses.

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.
unfair-dismissal-payout
Many employers are coming to a settlement with employees who won’t get “get the jab”. Employers need functions performed and need to move forward. Everybody got a view on this topic. Our experiance at AWNA is that many employees have steadfast views on not being vaccinated and will not change regardless of the circumstances. Employers know this as well, so many make the payment. What has to be considered in all this is your health, your career and financial circumstances. Its not for me to give you the all the answer’s but raise issues for you to consider.

Unfair and unlawful dismissal claims

As workplaces implement their own vaccine mandates. Placing their employees on unpaid leave or terminating their employment altogether if they refuse to get vaccinated without a medical exemption. It remains to be seen just how many unfair dismissal or general protections claims will be lodged. Whether they will succeed. The success rate of claims lodged is non existent to date. The only way I can see unfair dismissal claims succeeding at the moment is, if you could argue that you could work from home for the next say two years. With no or very little adjustment.

Although each case will depend on its own set of facts, this has become largely new territory for representatives and lawyers who specialize in this field of law.

Dismissed for refusing to take the vaccine

I hope this article was of assistance to you. 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 at A Whole New Approach P/L for free advice. 1800 333 666 anytime regarding your workplace issue, unfair dismissal or general protections claims. We are not employment lawyers, but Australia’s leading workplace advisors. termination of employment, diversity in the workplace, whatever, call us. We work in all states, Victoria, NSW, QLD, SA, WA, Tas, NT

employee-rights
All employees whether casual or permanent have workploace rights. It’s how you excise them is the key. Work out your end goal and work towards achiveing this. The the I put it is we don’t have slavery in this country. Nobody can make you do something you don’t want to do. However it is the consquences of these decisions that will effect you. Get advice, think things through, take a considered decision, don’t resign in haste.

Articles of interest relating to dismissal and vaccines

Mandatory jab, SPC refuses to back down

Vaccination policies in the workplace

Can I be dismissed for not having the flu shot

Disclosing a medical condition your rights

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