Health worker terminated for refusing vaccination loses unfair dismissal case

Employee argued that 'vaccination evidence' requirement breached privacy rights

Health worker terminated for refusing vaccination loses unfair dismissal case

The Fair Work Commission (FWC) has dismissed a health worker’s claim that she was unfairly dismissed over non-compliance with a workplace vaccination mandate.

The worker argued that her employer’s requirement that she provide evidence of vaccination, or proof of vaccine exemption, violated her right to privacy.

Background of case

The worker said she had a right not to disclose her medical information and said the public health order that set out the said requirements was “unlawful.”

The worker gave personal care assistance to residents at an aged care facility. Her employer implemented a mandatory COVID-19 vaccination policy, following a public health order from the New South Wales government.

The order prohibited aged care facilities employees from entering their work facilities as of Sept. 17, 2021 unless they either had received one dose of a COVID-19 vaccine or had an exemption.

Leading up to that date, the employer gave staff a vaccine exemption request form for use if they wished “to seek exemption due to medical contraindication or conscientious objection.”

The worker did not fill out the exemption request form or give vaccination evidence. She also did not say she had a medical contraindication.

Instead, she wrote to her employer raising various concerns, “including that the public health order was unlawful and invalid,” and the request for medical information breached privacy laws.

After several exchanges, the employer determined that the worker had a “conscientious objection” and said “there were no alternative options for applicant's continued employment.”

The employer then told her to “show cause why her employment should continue.” In response, the employee “raised many of the same issues addressed in her earlier communications to Calvary,” the Commission’s decision noted.

A week later, the employer sent her a letter of termination.

The FWC’s decision

In its decision, the FWC said the employer had a valid reason for the dismissal: non-compliance with a public health order.

The worker argued that her employer “could have stood her down on unpaid leave until the public health order expired,” but the FWC said “the absence of a public health order would not have altered her [employer's] obligation to take reasonable steps to ensure health and safety of employees and the facility's residents, who were vulnerable.”

The FWC also said there was no “realistic likelihood that the [employer] would change its policy in the foreseeable future to no longer require staff to be vaccinated.”

The FWC said there was no breach of privacy since the employer was obligated to obtain medical information if an employee asked for an exemption.

The FWC also noted that “once a public health order is in force, the employer is obliged to comply unless or until the order is declared invalid or unlawful by a court.”

Since the FWC does not have the power to determine whether a public health order is valid, it said the order must be upheld. Thus, the dismissal was not unfair.

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