Employee sacked for refusing flu shot

Can employers demand employees get vaccinated? In January, the ACTU saw the dangers of a ‘divisive public debate’ about whether vaccination should be compulsory in some workplaces.

Recently, the Fair Work Commission (FWC) upheld the dismissal of an aged care receptionist who refused to take a flu vaccination, despite the worker claiming she was allergic to the shot.

It was the second time in a month an employer was allowed to demand staff be vaccinated, continuing a trend The Guardian described as a ‘growing body of case law affirming an employer’s direction to get a vaccination to be ‘lawful and reasonable’.’

The employer, Sapphire Coast Community Aged Care, which operates three nursing homes, dismissed the worker from its high-care Imlay House facility in July 2020 because she refused to take the flu shot. This followed a NSW public health order that no one enter an aged care facility without a current influenza vaccination. 

In the past, the employer had run optional flu shot programs for its workers, but during the pandemic it made the flu shot mandatory. The only exemptions were for those with a contraindication to the vaccination. According to health officials, this only included a history of previous anaphylaxis or Guillain-Barré Syndrome following vaccination, or being on checkpoint inhibitor drugs
for cancer treatment. 

The receptionist, Jennifer Kimber, refused the flu vaccination claiming she suffered a serious allergic reaction to a flu shot in 2016 and had not been vaccinated since. She did not provide evidence to the FWC that she saw a doctor or that she had reported her reaction to her employer. She presented a note from a Chinese medicine practitioner with a Bachelor of Health Science and Masters of Science who said Ms Kimber would ‘prefer to not have the flu vaccination’.

A general practitioner also provided a ‘letter of support’ stating the receptionist had a contraindication to the flu vaccination and had suffered a severe allergic reaction to it previously. The GP had not personally examined the worker in the 14 months following the 2016 vaccination, and their assessment was based on what the receptionist had said. The GP had not referred the receptionist to a specialist for further examination. 

Sapphire Coast Community Aged Care stood down the worker and eventually dismissed her on the basis that her refusal to get the flu vaccination meant that she could not fulfil the inherent requirements of her role. The employer rejected the medical contraindication form provided by the worker’s GP on the basis that the contraindications did not align with the NSW public health order or the position of the Australian Chief Medical Officer. 

A specialist immunologist appearing for the employer gave evidence that in their opinion it was ‘not on the balance of probability likely’ that the worker’s rash was connected to the 2016 influenza vaccination and there was ‘no other evidence of a contraindication’ to her being immunised. 

Commissioner Donna McKenna found that the dismissal was not harsh, unjust or unreasonable, and that as a result of her refusal to be vaccinated Ms Kimber could not perform her job’s inherent requirements. The Commissioner also found that the worker could not establish a case on the evidence that her reaction to the 2016 flu was a medical contraindication to the flu shot. In the circumstances, the Commissioner found that the employer ‘acted in an objectively prudent and reasonable way’ when it refused to let the employee work without an up-to-date flu shot. 

Commissioner McKenna also found that while the employer had not ‘directed’ Ms Kimber to have the flu vaccination, if a direction had been given to Ms Kimber to be vaccinated, it would have been lawful and reasonable.

Had the receptionist provided stronger evidence about her contraindication to vaccination, the outcome may have been different. 

No definitive ruling has been made on the lawfulness of employers ordering employees to get vaccinated. In January, the ACTU offered to collaborate with the federal government to encourage workers to get vaccinated in order to avoid a ‘divisive public debate’ about whether vaccination should be compulsory in some workplaces.

Safe Work Australia states: ‘Employers have a duty under the model Work Health and Safety (WHS) laws to eliminate, or if that is not reasonably practicable, minimise the risk of exposure to COVID-19 in the workplace.’ However, it also says ‘most employers will not need to make vaccination mandatory to comply with the model WHS laws’. 

To date, most Australian employers have not required staff to be vaccinated against COVID-19, but there could potentially be circumstances in which employers may seek to require employees to be vaccinated.

This article was originally published in The Point, V1, No2, 2021.