As we are approaching winter and the flu-season, many of us ask, can my boss make me take the flu shot?
Can I be dismissed for not having the flu shot in NSW?, the opinion here changes daily, but what’s the legal view?
Dismissed over health issues, can be very controversial. The case of Kimber v Sapphire Coat Community Aged Care Ltd  FWC 1818 was recently heard by the Fair Work Commission in NSW. In this case, the Applicant was a receptionist in a community-owned, not for profit aged care group. The Applicant worked at one of their facilities, which was a high-care aged care residential facility, comprising of 89 beds.
The Applicant claimed that she was unfairly dismissed as she did not want to receive the flu vaccine after experiencing a reaction in 2016. In previous years, this was accepted by the Aged Care in NSW as there was no legislation inducing compulsory vaccinations for its staff or any person entering the premises.
Why are things different now?
2020 saw the Aged Care system in NSW on the brink of collapse due to COVID-19. In turn the NSW government enacted a Public Health Order regarding all people who work in an aged care facility as well as all attendees or visitors to be vaccinated for the flu. The Aged Care Industry is exceptionally vulnerable, and has been highly scrutinised as a result of COVID-19, especially in states such as NSW.
The Applicant, just like other staff who did not wish to be vaccinated against the flu were dismissed by their employer unless they had a “medical contraindication”. The Applicant argued that she did have a medical exception, however, Fair Work found that the Applicant did not demonstrate a medical report to her employer at any point in time. Therefore, leaving them to believe that she did not have a valid medical exemption for the vaccination as she did not present legitimate proof. The Applicant provided a letter from a medical practitioner stating that she “would prefer not to have the flu vaccine”.
Furthermore, the Federal Government’s, Department of Health suggests that the only valid reasons for medical contraindication to the flu vaccine is anaphylaxis reaction, Guillain-Barr Syndrome or certain cancer treatment drugs.
Does this constitute unfair dismissal in New South Wales (NSW)?
The Fair work Commission in NSW found that there was a valid reason for the Applicant to have been dismissed as she was unable to perform the inherent requirements of her role without having a vaccine, as she was not permitted to enter the premises without having an up-to-date flu vaccine. Therefore, this did not constitute unfair dismissal and the Commission were not satisfied that the dismissal was harsh, unjust or unreasonable.
One of the criteria for considering harshness as per s 387 of the Fair Work Act 2009 is whether there was a valid reason for the dismissal relating to the person’s capacity or conduct (including its effect on the safety and welfare of other employees). Capacity was defined in Walton v Mermaid Dry Cleaners Pty Ltd  IRCA 267 as the ‘employee’s ability to do the job as required by the employer. By not being able to enter the premises, the Applicant was unable to perform the inherent requirements of her role, reception, therefore the requirements for unfair dismissal were not satisfied.
Is this an indicator of what the Fair Work Commission’s approach will be to COVID-19 vaccinations?
This case was decided in 29 April 2021, just before the general public were eligible for vaccinations for COVID-19. Therefore, it is reasonable to assume that in industries such as Aged Care and Childcare, state governments may enact Public Health Orders similarly to that of NSW including a clause for COVID-19 vaccinations. The Commission will then have to consider the employer’s responsibilities within the Public Health Order as well as the rights to the employee.
It is important to know that the Fair work Commission’s role is to see if the dismissal was harsh, unjust or unreasonable. If an employer has to do something by law such as ensure all staff are adequately vaccinated against the flu, it is not harsh, unjust or unreasonable to terminate someone unless they have a medical exception. This is because the rights of the public as a whole will be taken into account by the implementation of such a Public Health Order in NSW.
I cannot have the vaccine, as I have had a reaction before, what do I do?
If you are unable to have the flu vaccine as you have previously had reactions, it is crucial that you see your medical practitioner and obtain a medical certificate outlining that you have a medical contraindication to the vaccination against influenza. Therefore, this would fulfil the exception requirements of the Public Health Order. As mentioned above, there are only three absolute medical contraindications as listed by the Department of Health in Australia, therefore, it is likely that medical practitioners will be reluctant to write an exception unless one of the accepted contraindications can be proven. Therefore, unfair dismissal in NSW for refusing to have the flu vaccine is not feasible.
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 Kimber v Sapphire Coat Community Aged Care Ltd  FWC 1818
 Public Health (COVID-19 Aged Care Facilities) Order (No 4) 2020 under the Public Health Act 2010 s 6(d)
 Fair Work Act 2009 (Cth) s 387(a).
 Walton v Mermaid Dry Cleaners Pty Ltd  IRCA 267
 J Boag & Son Brewing Pty Ltd v Button  FWAFB 4022
 Public Health (COVID-19 Aged Care Facilities) Order (No 4) 2020 under the Public Health Act 2010 s 6(d)(ii)