FWC Upholds Dismissal of Worker who Refused to Get the Flu Shot
Wednesday 13th October, 2021
By Greg Arnold, Director & Principal Consultant
Last week, the Full Bench of the Fair Work Commission upheld decision of a NSW aged care facility, Sapphire Coast Community Aged Care, which dismissed a receptionist, Jennifer Kimber in July 2020 after Ms. Kimber refused to get vaccinated against influenza.
This decision has been lauded by some lawyers and commentators as providing some reassurance to employers looking to implement a mandatory COVID vaccination policy in their business. In their decision the Full bench stated that they did not want to “give any encouragement to a spurious objection to a lawful workplace vaccination requirement”.
However, there needs to be some caution by employers around this decision. It must be remembered that this decision applied to the aged care sector, which by way of public health orders has mandated COVID vaccinations in the workplace. Further, this decision is not a “blanket precedent” which provides protection from directing employees to get vaccinated and any employee claims for medical exemptions will need to be considered on a case-by-case basis.
Employees may seek exemptions from having the COVID-19 vaccination on the basis of medical contraindications (and pregnancy in some states). However, this decision means that evidence of a medical contraindication must be based on those matters identified by the latest medical guidance for COVID-19 vaccinations.
It is also important to note that the Full Bench decision was not unanimous however, with Deputy President Lyndall Dean dissenting over the matter and describing Ms Kimber’s situation as an injustice. “I would have found that Ms Kimber was unfairly dismissed and would have reinstated her to her former position,” she said. This is concerning for employers as it indicates division exists in the FWC over mandatory vaccinations.
We strongly recommend that clients continue to take a balanced approach to the question of whether mandatory vaccination is appropriate to your workplace having regard to any Public Health Orders and informed by professional employment law advice. Any medical evidence of medical contraindication, in the face of a mandatory vaccination policy, must be carefully considered.