Worker argues she acquired 'immunity' due to 'antibodies' in dismissal case
The Fair Work Commission (FWC) recently dealt with a case involving a worker who alleged that she was unfairly dismissed because of her non-compliance with the vaccination mandate.
In its defence, the employer contended that the worker no longer performed the inherent requirement of her role. Hence, there was a valid reason for her dismissal.
Vaccinated but not boosted
Since February 2010, the worker was working on a permanent part-time basis as a registered nurse at a hospital.
Around September 2022, the worker received two doses of the AstraZeneca vaccine but not a third booster as mandated by the Victorian Government’s Directions.
When the worker returned to work from an approved leave, she still had not received a third booster dose which was needed to be considered fully vaccinated and to be allowed to attend work at the hospital.
Consequently, when a meeting occurred after the employer sent a letter to the worker notifying her of her possible employment termination, the worker explained that she should be allowed to attend work because she had immunity from COVID-19 since she had previously contacted such and had antibodies.
“The [worker] was not compliant with the Directions by virtue of having antibodies, as she contended,” the FWC stated. “However, she was provided with additional unpaid leave to 11 November 2022.”
A further meeting was attended by the worker to provide more information or show cause as to why her employment should not be terminated and the worker said that she still had immunity from COVID-19. Hence, her reason for not having her booster.
However, on 7 February 2023, the worker was notified of her dismissal based upon her decision not to receive the COVID-19 vaccination as required to lawfully attend the workplace.
The employer argued that such a dismissal was not harsh nor unjust because of the worker’s inability and unwillingness to perform the fundamental requirements of her role as a nurse due to being unable to provide evidence that she was fully vaccinated (boosted).
Despite such a claim, the worker contended that she was unfairly dismissed from her employment and sought an order that she be reinstated to her role.
HRD previously reported about a case of a young mother who did not comply with a vaccination mandate from her employer, which ultimately led to her dismissal.
She argued that she did not comply because she feared “illness or injury” to herself and her new baby and asked the employer to clarify the consequences of the jab “in detail.”
Commission’s decision
Ultimately, the FWC dismissed the worker’s application as it found that her dismissal was not harsh, unjust, or unreasonable.
While the FWC recognized the worker’s right to decline being boosted, it noted that the worker’s choice had the inevitable consequence that she rendered herself unable to perform her job.
“The [employer] was prohibited by law from allowing her to attend the workplace unless she provided the required evidence,” the Commission stated. “Had the [employer] allowed the [worker] to attend the workplace it would have broken the law.”
