Can you stop someone coming to work – if they won't get a COVID vaccine?
An aged care worker who was placed on unpaid leave, and later considered to be terminated, after she refused to get vaccinated may now file her unfair dismissal complaint, the Fair Work Commission ruled. The case involving an Ozcare employee who declined the influenza vaccine is expected to become a landmark battle, at a time when companies in Australia are closely considering their options for mandatory staff vaccinations against the other highly contagious disease COVID-19.
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Before the Ozcare worker was taken off the roster, she repeatedly opted out of flu vaccination because of her personal medical history. The complainant said she nearly died as a child when she experienced anaphylaxis from a vaccination she received back then. However, she is yet to provide evidence of her supposed condition. When the pandemic struck, Ozcare updated its policy on employee immunisation. The management declared it was now essential for all aged care staff to undergo inoculation, and subsequently placed the worker who claimed to be allergic to vaccines on an indefinite unpaid leave. Commissioner Jennifer Hunt, however, ruled that the worker had essentially been terminated. The FWC gave the go-ahead for the worker to file her unfair dismissal claim.
The merits of the case have yet to be considered in detail. The hearing would have to examine whether the decision to require vaccination for all aged care staff was “lawful and reasonable” in the context of the pandemic, and whether the worker’s refusal based on health reasons was legitimate.
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“In my view, each circumstance of the person’s role is important to consider, and the workplace in which they work in determining whether an employer’s decision to make a vaccination an inherent requirement of the role is a lawful and reasonable direction,” Commissioner Hunt said.
“Refusal of such may result in termination of employment, regardless of the employee’s reason, whether medical, or based on religious grounds, or simply the person being a conscientious objector.”
Other factors to consider include the possibility of the worker having worn a personal protective gear as an alternative to getting vaccinated; whether she is, in fact, allergic to the latest formulations of vaccines; and whether she consulted a medical professional regarding her reaction to newly developed vaccines.
