Fair Work Commission upholds the dismissal of an employee who refused to take the flu vaccine
The Fair Work Commission brought into consideration the circumstances under which an employer can mandate vaccinations for their employees.
In April 2020, Maria Corazon Glover, a 64-year-old Ozcare employee and care assistant was asked by the organisation to get a compulsory flu vaccination. She refused to take the jab and submitted her medical certificate stating that she would not be able to take the vaccination because of childhood anaphylaxis caused by the flu shot. The medical certificate also declared that she would not work until after the peak period of flu infection subsided.
At the time, Ozcare had said that she would not be allowed to enter the premises for an unspecified period and also clarified that she would be on unpaid leave after exhausting her paid leaves. The care assistant challenged that she was unfairly dismissed. The dispute reached the Fair Work Commission, which said that Ozcare community-care employees can potentially become super-spreaders of the flu so it was deemed to be an appropriate managerial prerogative. It was an action meant to safeguard the clients and employees from the risks and dangers of the flu. The Commission stated that they do not consider the cause of the care assistant’s sacking as ‘capricious, fanciful, spiteful or prejudiced.’
The Fair Work Commission also found out that the care assistant’s denial of getting vaccinated was more verbatim to her GP and there mighn’t have been any evidence of the same. Under Australia’s Aged Care Direction it is mandatory to be vaccinated against influenza to enter or stay in the residential aged care facility unless there is an unavailability of vaccine. It also added that Ozcare did not force or coerce any of its employees to take vaccination against their volition and the direction to the care assistant did not violate or infringe on any grounds of discrimination. Ozcare maintained that employee dismissal due to non-compliance was not unlawful. She would have been a potential health hazard under the circumstances.
The key lesson that can be taken away from Maria Corazon Glover v Ozcare [2021] FWC 2989 (26 May 2021) is that the directions of the employers must be lawful and reasonable with regard to taking all situations and circumstances into consideration. The employer’s condition for an employee to take a vaccination cannot be placed upon arbitrary grounds but should depend on a range of factors, not limited to sector of work or individual risk factors. However, if an employer unjustifiably mandates a vaccination and sacks an employee for their non-adherence, they might find themselves at the risk of a claim.