Case is a reminder to HR leaders and employers on how to broach corporate directions
A Fair Work Commission (FWC) decision has rejected an unfair dismissal claim that challenged an employer’s mandatory flu vaccination, arguing “it’s not part of the worker’s contract".
The case involves a formal direction from the Western Australian government, requiring residential aged care facilities to “take all reasonable steps to ensure employees did not enter their facility without a flu vaccination.” The worker did not consent to the said requirement, resulting in his dismissal.
The worker worked as an electrician across various sites, including residential aged care facilities, independent living villages and social centres. Around 2020, the staff of the said facilities were told to “get a flu vaccine to continue to work".The worker “had concerns” but complied with the order.
In 2021, the WA government issued a formal direction ordering aged care facilities to require flu vaccination. The employer complied and announced that “an employee would not be able to enter its facilities unless they provided evidence of flu vaccination.”
The worker told his employer that “he did not refuse the vaccine but wanted [it] to accept liability for any [medically] adverse reaction.” He also sent “notices with questions” but said they were not addressed.
The employer then threatened to terminate his employment if he did not conform with the state’s direction.
Upon dismissal, the worker applied to the FWC, alleging it was “unreasonable for [his employer] to expect annual vaccination if it was not in his contract.”
The employer said it gave him an exemption form after raising his concerns but said the worker did not return it.
The employer also said it informed the worker that he could not complete his duties without first complying with the state’s direction.
The FWC found that mandatory flu vaccination is an “inherent requirement” of the worker’s employment since he was employed in a residential aged care facility.
It said that the employer was “legally bound” to the state’s direction and ruled that his dismissal was “lawful and reasonable.”
“The [worker’s] failure to comply with the [employer’s] direction was a valid reason for dismissal [since it] related to his conduct and capacity,” the FWC said.
The decision was handed down on 20 January.
Takeaways for HR
- Employers need to tread carefully when it comes to any kind of vaccine mandates. HR should take care to follow the correct legal steps in finding accommodations up until undue hardship.
- Flu vaccines may be deemed a an ‘inherent requirement’ of an employee’s job depending on the sector they work in.
- Employers may well be legally bound by state and governmental policies regarding vaccine mandates
