The Fair Work Commission ("FWC") has upheld the termination of an aged care worker's employment who refused a flu vaccination on the grounds of a previous allergic reaction. While the trend with recent cases may give comfort for employers mandating vaccinations in certain industries, many employers remain hesitant to advocate for vaccinations in the workplace. To provide further comfort for employers mandating vaccinations, the Australian Chamber of Commerce and Industry ("ACCI") is advocating for new measures that would indemnify employers against liability in cases of employee's suffering an adverse reaction to a vaccination required by the employer.
1. Employee lacks proper basis for vaccination refusal
The Sapphire Coast Community Aged Care employee was dismissed in July 2020 for refusing to comply with the NSW public health order enforcing mandatory influenza vaccinations for anybody entering aged care facilities. Consistent with that order, the employer directed the facility's employees that mandatory vaccine requirements would come into effect in April 2020, with the exception being those who had a medical contraindication.
The employee provided a letter from a Chinese medicine practitioner alongside a letter of support from a general practitioner ("GP") to justify the alleged medical contraindication. The former was identified as having "no reference at all" to the issues at hand, and the latter did not certify that the GP had personally examined the employee with respect to the previous allergic reaction. The employer was not satisfied by the employee's alleged medical contraindication and the employee was stood down. The employee was subsequently dismissed after the employee attended work twice, despite being aware of the mandatory vaccination policy and being unvaccinated.
In agreement with the employer's position that the employee was unable to perform the inherent requirements of their role, Commissioner McKenna observed that, absent proper medical certification, the employee's attendance at work may have constituted a contravention of the public health order.
2. Valid reasons for dismissal
In this case, the FWC found that the employer had a valid reason to dismiss the employee because the employee's failure to receive the vaccine meant she was unable to fulfil the inherent requirements of her role.
In previous decisions, the FWC has:
- found that, while being vaccinated was not an inherent requirement of the role, the employee was validly dismissed because the employee failed to follow a lawful and reasonable direction by refusing the flu vaccine, and;
- seemingly blended the possible reasons for dismissal by suggesting that the relevant question is whether "an employer's decision to make a vaccination an inherent requirement of the role is a lawful and reasonable direction".
The tension between the decisions fails to clear the ambiguity surrounding the validity of the reasons for dismissing an employee that does not comply with mandatory vaccination requirements. We recommend that employers refer to both the inherent requirements of the role and the employee's failure to follow lawful and reasonable direction when dealing with enforcing mandatory vaccination policies. Even though these cases refer to influenza vaccines, the fact that the fairness of these dismissals have been upheld may provide comfort for employers mandating vaccinations for COVID.
3. ACCI calls for indemnification
The ACCI is advocating to ensure employers who promote COVID vaccination policies within the workplace are indemnified in circumstances where an employee suffers an adverse reaction to the vaccination.
The ACCI advisory document observes the "increasing hesitancy" of businesses in contemplating the facilitation of the vaccination due to the potential liability in circumstances where things go wrong. The suggested indemnification protecting employers from liability in workers' compensation claims relating to vaccination advocacy could provide further comfort for employers mandating vaccinations in the workplace.
For the avoidance of doubt, we note that an indemnification in relation to the adverse consequences of a vaccination does not impact on the employer's liability for taking disciplinary action against an employee that refuses to receive the vaccination.
- The FWC has recently upheld the dismissals of several employees with regards to the influenza vaccine and it is arguable that the reasoning would be analogous to cases involving mandatory COVID vaccination policies.
- Employers who are engaging in disciplinary action against employees who refuse to comply with mandatory vaccine policies should consider whether the employee's failure to receive the vaccination constitutes a failure to follow a lawful and reasonable direction and/or a failure to comply with the inherent requirements of the role.
- In the absence of legislative changes limiting the liability of employers in relation to employees' adverse consequences of receiving a vaccination, employers may consider entering into indemnification contracts with employees to facilitate the delivery of the COVID vaccination (should such practical facilitation ever become an option in Australia).