The employee claimed that the vaccine posed a health risk
Last May, Ozcare, which provides services to elderly and disabled clients in Queensland, mandated influenza vaccinations for all employees working in residential aged care facilities.
This decision came in response to QLD regulations which, from 1 May, barred employees without the vaccination from entering such facilities.
The 64-year-old Applicant, who had worked at Ozcare for 10 years, declined vaccination - having suffered an anaphylactic reaction to the influenza vaccination as a child in the Philippines.
She stated that, given the vaccination poses a significant risk to her health, it was unreasonable for her employer to expect she be vaccinated. Despite requests from the Respondent, the Applicant refused to meet with medical specialists regarding her refusal. The Applicant relied on a clause in the Aged Care Direction (No. 10), which exempted those with a medical contraindication from being subject to vaccination.
Ozcare CEO Anthony Godfrey asked the Applicant to reconsider her refusal as it would ‘affect [her] employment with Ozcare’.
In response, the Applicant commenced paid leave on 1 May, which was exhausted on 4 October. The Respondent submitted she would then continue under unpaid leave for an ‘indefinite period’. The Applicant argued that the Respondent’s direction to take her leave entitlements clearly indicated her dismissal. The primary issue for the Commission, therefore, was whether there was a dismissal under s 386(1) of the Fair Work Act 2009.
The Respondent asserted that the Applicant was ‘currently unable to meet the inherent requirements’ of her role and therefore presently on unpaid leave. He explained that her employment status would be reconsidered in January 2021.The Commission commented on this as an ‘entirely unsatisfactory proposition’, given this could leave the Applicant in limbo for ‘months and years’.
The Commission found that the Respondent’s actions had ended the Applicant’s employment. It found that her employment had been terminated on 4 October when, despite her ableness, the Respondent refused to roster her to work.
The Respondent’s objection was dismissed, and the matter programmed for further hearing.
Key Takeaways for HR:
- Employees with a medical contraindication may not be required to receive vaccinations
- This decision raises questions as to the legitimacy of mandating the COVID-19 vaccine for employees with medical aversions
- Despite asserting an employee has not been dismissed, employer actions may still constitute unfair dismissal
