A current case being observed by employers considering mandatory coronavirus vaccinations, the Fair work Commission (FWC) will probe whether Ozcare in Brisbane South, unfairly sacked a long-serving care assistant who refused a compulsory flu shot on the basis of allergy, while the Commission also weighed-in on the contentious issue of enforced jabs for Santas. Commissioner J Hunt has cleared the way for the part-time care assistant to pursue her unfair dismissal claim after rejecting Ozcare Brisbane South’s jurisdictional argument that it simply placed her on unpaid leave.
The carer – who provides in-home care and does not work in a residential aged care facility – has successfully declined flu vaccinations at Ozcare Brisbane South’s on allergy grounds for over 10 years, as she suffered anaphylaxis straight after receiving one at age seven in the Philippines. However, in April last year, Ozcare Brisbane South informed the assistant that due to COVID-19, it was making the vaccinations mandatory for all employees in its residential aged care facilities and its community care services with direct client contact. Referring to Queensland Chief Health Officer Dr Jeannette Young’s now-revoked directions that workers could no longer enter residential aged care facilities unless they had an influenza vaccination, Ozcare Brisbane South said yearly immunisations are now a crucial condition of the carer’s role. The Queensland public health order outlined that vaccination was required if “available” and provided an example that it was “not available to the person with the medical contraindication to the influenza vaccine”.
Medical certificate seeks flu season leave
As the carer declined the vaccination, Ozcare said it could no longer roster her on or let her enter its premises, including after the lifting of the public health directive.
It said she could access personal or other accrued leave to cover her absence while “unfit to attend work” but said it was “unable to advise how long that will be for”.
When her annual and long service leave ran out on October 4, Ozcare said it would be unable to offer shifts. But it said this did not constitute dismissal, as she would be on unpaid leave. The carer provided Ozcare with a medical certificate stating she could not be vaccinated “as she had anaphylaxis with Flu shot in childhood” and she was not to attend work until after September when “flu infection time” passed. Commissioner J Hunt also accepted that she genuinely believed a vaccination would risk her life, despite failing to obtain any confirmation that her beliefs are medically supported and refusing to see a specialist about it.
Employment ended when leave exhausted
Commissioner J Hunt found it an “entirely unsatisfactory proposition” that Ozcare intended to place the assistant on unpaid leave indefinitely as it continued to review her status.
She said the carer could be “held in limbo for months and years”.
“The effluxion of time would have little impact on [Ozcare], yet if [the Assistant] could not demonstrate that she has been dismissed until such time as [Ozcare] declares for itself that she has been dismissed, the effects on her are enormous”. But she held that Ozcare’s judgment to enforce a new requirement, that unvaccinated employees cannot work, in fact, meant the carer’s employment was terminated on October 4, when she exhausted accrued leave and it refused to roster her.
“It is clear that [the assistant] no longer can meet what [Ozcare] states is the inherent requirements of the position”, Commissioner J Hunt said. “She refuses to do, and [Ozcare] refuses to relax them for her therefore the impasse has not been met due to the actions of [Ozcare] and the employment has come to an end”.
Important to consider individual circumstances
In conclusion, whether the carer can therefore pursue her claim for unfair dismissal, Commissioner J Hunt said the proceeding would not be “an inquiry as to whether she is likely to refuse any future COVID-19 vaccination”. Instead, the case would involve “largely a consideration as to whether [Ozcare’s] decision to make an influenza vaccination an inherent requirement of the job is lawful and reasonable having particular regard to her care of vulnerable clients in their home”.
Commissioner J Hunt said there was much discussion around the lawfulness of requiring employees to be vaccinated against influenza“in light of the adverse reaction a vulnerable person might have if they have influenza and then contract COVID-19”.
“It is, of course, a very concerning proposition, and medical evidence to-date suggests that such a combination is highly likely to increase the potential fatality of the individual,” she said.
“In my view, 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 J Hunt said she expected the case to consist of evidence of clients’ vulnerabilities, the effect of wearing full PPE, advancements in vaccinations between 1963 and 2020, and the carer’s refusal to seek specialist medical opinion.
The Santa Clause: Compulsory jabs for St Nick?
Commissioner J Hunt noted the potential of “men engaged to play the role of Santa Clause in shopping centres, having photos taken around young children, may be required by their employer to be vaccinated at least against influence, and if a vaccination for COVID-19 is available, that too”. “The employer in those scenarios, where they are not mandated to provide social distancing, may decide at their election that vaccinations of their employees are now an inherent requirement of the job,” she said.
While a court or tribunal might be “tasked with determining whether the employer’s direction is lawful and reasonable”, she said in the “court of public opinion, it may not be an unreasonable requirement” and might “in fact, be an expectation of a large proportion of the community”.