The Fair Work Commission has recently allowed an aged care worker to proceed with her unfair dismissal application after finding that her employer, Ozcare, dismissed her after she was placed on indefinite unpaid leave for declining to be vaccinated against influenza.
In the worker's ten-year period with the company, she had regularly declined to receive annual flu vaccinations based on her belief that she was allergic to vaccinations because she had experienced an anaphylactic response to one as a child.
However, Ozcare's views on allowing employees to decline vaccinations changed as a result of the Covid-19 pandemic and the increased risk that it posed to its elderly clients.
Ozcare determined that it was now an inherent requirement for all its aged care workers to be vaccinated annually against influenza and as the worker could not satisfy this requirement, she was placed on indefinite leave until such time as the circumstances changed.The worker submitted that this action amounted to unfair dismissal and subsequently made an application to the Commission.
At this stage, the Commission has only cleared the worker to proceed with her application and the merits of the parties' arguments relating to whether the dismissal was actually unfair are yet to be heard. The Commissioner has however noted that this will likely involve a consideration of:
- the worker's role and the workplace and whether a decision to make a vaccination an inherent requirement of the role was lawful and reasonable in the circumstances;
- whether the worker's refusal was justified, taking into account public interest and the worker's reason being based on medical opinion, rather than on religious grounds or in being a conscientious objector;
- the vulnerabilities of Ozcare's clients and the potential effects that contracting influenza would have on those clients;
- whether an unvaccinated employee could mitigate the risk by correctly wearing all available PPE;
- the advancements in medicine and vaccinations from when the employee received the vaccination as a child; and
- the employee's refusal to seek current specialist medical advice as to whether it was safe for her to receive a flu shot in 2020.
We anticipate that this case will set an important precedent for employers considering the implications of a readily available coronavirus vaccine within Australia. We will be closely following its development and provide updates, as necessary.
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