Sep 29th, 2021
The full bench majority of the Fair Work Commission has upheld the recent dismissal of an employee who refused to receive a flu vaccine shot.
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Earlier in April, the Fair Work Commission found that the employee, a receptionist working in aged care in NSW, was not unfairly dismissed, on the basis that the employee provided insufficient evidence of the allergy she claimed would prevent her from getting the flu vaccination shot. She was required to receive the vaccination as part of a NSW government mandate.
The former employee claimed she had experienced an allergic reaction to a flu shot in 2016, and provided a letter from a practitioner of Chinese medicine to support this. In addition, she provided another letter from a general practitioner, and wrote to upper management concerning her opposition to receiving the shot.
Ultimately, the FWC decided the employee had a “broader anti-vaccination position” that extended beyond an allergy, and upheld the original decision.
The majority ruling outlined that the FWC in no way plans to make any statement of support for "spurious objections" to lawful vaccination requirements, and it is the first full bench decision on the topic of vaccine mandates since the pandemic began in early 2020.
However, there was some dissent among the bench.
A deputy president of the FWC claimed that it amounted to “medical apartheid”, and that the worker had been denied their protections under the Fair Work Act due to the belief that she held a “general anti-vaccination position”.
It is certainly a decision that may provide employer’s with more comfort when considering the implementation of mandatory vaccine requirements for COVID-19 in their workplaces. However, while it does give some guidance to employers, especially in terms of the evidence required to prove the existence of a medical contraindication that prevents someone from receiving a vaccination shot, it cannot be considered a blanket ruling. It does not give employer’s the complete wherewithal to terminate employees if they refuse to receive a vaccine.
Employers should still look to consider the entirety of their workplace landscape and look at what is the minimum standard of risk management required to combat COVID-19 and fulfil their work (occupational) health and safety obligations towards their employees. Alternative flexible working arrangements also may be offered to employees if the vaccine is not available to them.