Our employment law team recently provided an overview of what employers should consider if they are:
- looking to mandate vaccines in their business, or
- wanting to comply with a mandatory vaccination direction issued by the government, whether that be at Federal State or Territory level.
In case you missed them, you can view those insights here:
- The Jab-Dilemma: Mandatory vaccines in the workplace
- All you need to know about mandatory vaccinations
A key consideration for mandating vaccines in the workplace is the question of what is considered a “lawful and reasonable direction”. This is a critical question and not as straightforward as we may hope, even in circumstances where there is a government directive in place.
What is a lawful reasonable direction?
It’s generally accepted that an employer is entitled to issue a “lawful and reasonable direction” to its employees. What is lawful and reasonable will depend on the circumstances.
Is a direction for employees to be vaccinated lawful and reasonable?
The answer to this question is constantly evolving. At present, there is no settled view in Australia, regardless of government directives, and therefore must be considered on a case-by-case basis.
This has been demonstrated in the recent Unfair Dismissal decision of the Full Bench of the Fair Work Commission of Jennifer Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWCFB 6015 which was handed down this week.
While the Full Bench upheld the validity of the dismissal by the employer as decided by the Commissioner at first instance, the Full Bench was not united in its view, with a strongly worded dissenting opinion demonstrating that it is unlikely that this issue is settled.
Summary of facts
This matter involved an administrative employee at an aged care facility who refused to take a flu vaccination in New South Wales (NSW) following a Public Health Order (PHO) by the NSW Chief Health Office (CHO) mandating the vaccination and the employer attempting to enforce it.
The employer would offer flu vaccinations to its employees each year. The employee participated in these vaccinations in 2015 and 2016, however stopped after the 2016 shot because she suffered a severe allergic reaction that lasted for 10 months and included damage to her “internal organs”. Critically, in the eyes of the Commission, was that the employee did not tell anyone about her allergic reaction at the time that it happened and did not provide reliable evidence from then to support her claim
Summary of decision
The Commissioner at first instance and the majority (Vice President Hatcher and Commissioner Riordan) on appeal found the following:
- While the employer strongly indicated that the employee should get the vaccine, the employer's letters fell short of amounting to “directions”. If they were directions, they would be considered lawful.
- While the employer can be criticised for relying on a publication by the CHO which has “no legal effect”, it would have been “foolhardy” for him to do otherwise, and as such was reasonable in the circumstances.
- From correspondence sent to the employer, the employee had a settled “anti-vaccination view” and this was the reason why she did not comply with the direction.
- If the employee could not be vaccinated and was not exempt, she could not meet the inherent requirements of the job.
- The employee was asked on appeal whether she would consider obtaining the COVID vaccine if her employment was reinstated, to which she advised that she would make an informed decision depending on the circumstances. The Commission took this response to allow them to infer that the employee had a “settled anti-vaccination view”, making the continuation of her employment “untenable”.
The dissenting opinion was fierce, with Deputy President Dean stating, “Never have I more strenuously disagreed with an outcome in an unfair dismissal application”.
Without going through each point of dissent, which the Deputy President said would have resulted in him allowing the appeal, finding the dismissal unfair and reinstating the employee, the Deputy President found the following:
- The employer did not issue a lawful and reasonable direction.
- It was not open to the employer to apply their own interpretation to the exemption provided by the GP.
- The exemption was consistent with the PHO and as such should have been accepted, thereby meaning that the employee could in fact meet the inherent requirements of the job and, by extension, that there was no valid reason for dismissal.
In conclusion, the Deputy President stated that mandatory vaccinations are unlawful, falling short of Australia’s human rights obligations. While accepting the efficacy of vaccination, the Deputy President was firm in his view that they must be freely taken and that any direction excluding employees from the workplace due to not being vaccinated is unlawful.
The decision is likely to be appealed.
Key take aways
- Clarity is key. Despite there being a PHO, if you are mandating a vaccine in the workplace, it is important that you state it clearly and provide reasonable justification when issuing it to your employees.
- At this point in time, even if an employee has an exemption in the approved form, it may still be insufficient and must be considered in light of overall occupational health and safety considerations.
If you are considering mandating vaccinations for your employees, or you're wanting to ensure you comply with current government directives regarding mandatory vaccinations in the workplace, we recommend you seek independent legal advice. The fluid nature of the present circumstances suggests that what may have been considered lawful and reasonable in the past, may not be the case in future. If you'd like to know more, contact our employment law specialists below.
