Dismissal of employee who refused flu vaccine was not unfair

Risk Matters - Summer 2022

Vicky Cullen

Senior Employee Relations Consultant, WALGA

Vicky Cullen is a Senior Employee Relations Consultant at WALGA.
She has been with WALGA since October 2018 and has tertiary qualifications in law and science. Prior to WALGA, Vicky has had a varied career in a number of different legal fields including civil litigation and employment law and she previously worked in the pharmaceutical industry in a regulatory capacity.

The WA Government is implementing public health directions which will require employees of certain industries to be vaccinated against COVID-19 before they can attend a workplace.

It is timely to look at an unfair dismissal case from earlier this year concerning an administration employee working in a residential aged care facility who claimed she was unfairly dismissed when she refused to be vaccinated against influenza.

The case highlights that an employer may have a valid reason to dismiss an employee if:

the employee is required, under a Government issued public health direction, to be vaccinated; and
the employee refuses to be vaccinated.

However, such dismissals may be considered unfair if the decision to terminate is not preceded by a procedurally fair process.

The case centred around a requirement under a NSW health order in respect of residential aged care facilities which required:

an employee of the operator of residential aged care facility must not enter the premises of the facility if they did not have an up-to-date vaccination against influenza; and
the operator of the facility takes all reasonable steps to ensure that a person did not enter or remain on the premises in contravention of the vaccination requirement.

The employer successfully defended the unfair dismissal claim because it was able to show, among other things, that it acted in an objectively prudent and reasonable way and it notified the employee of the reason for her dismissal and she was given an opportunity to respond.

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Steps taken by the employer included:

Issuing a letter to all staff advising them of the NSW Government’s vaccination requirements and the annual influenza flu vaccination program.
Responding to documents the employee provided which outlined why the employee would prefer not to have the vaccine and/or purported to justify the employee’s reasons for not being vaccinated. In these responses the employer explained why it did not accept the reasons for not being vaccinated as sufficient to meet the requirements of the health order.
Informing the employee that she would be “stood down from her employment” and explained the reason why (namely that she could lawfully return to work) but offer the employee the option to take annual leave or long service leave instead.
Allowing the employee to take a period of leave in order to see if the Government requirement would remain permanent, consider her position and take further advice.
Allowing the employee to extend that period of leave.
Following a show cause process before making a final decision to terminate the employee’s employment.

The decision made by Commissioner McKenna (Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWC 1818) was appealed.

In September 2021 the majority Full Bench of the Fair Work Commission refused to allow the appeal (Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWCFB 6015). From both the decision of the majority and the dissenting decision of Deputy President Dean the following key lessons can be learnt:

Employers should ensure that where appropriate a lawful and reasonable direction to be vaccinated is clearly conveyed to the employee.
Public health directions should be read carefully. It is worth noting that in the dissenting Commissioner’s view, there was no legal impediment to the employee entering the premises because on the Deputy President’s reading the employee had a valid exemption under the health directions.
Employers take a fair and balanced approach to the question of whether mandatory vaccination is appropriate in their workplace having regard to any Government directions or following a risk assessment (and informed by legal advice if required).
Employers who give lawful and reasonable directions to be vaccinated must:
- carefully consider any medical evidence of contraindications or other reasons provided by an employee that explains why they not been vaccinated; and
- treat employee refusals on a case-by-case basis and consider whether there may be a valid medical reason for the refusal, or suitable alternatives.

Please note that it has been reported that there are plans to appeal the decision in the Federal Court.

WALGA Employee Relations Service

WALGA Employee Relations provides comprehensive human resource management and industrial relations support to local government members. WALGA Employee Relations regularly provides advice on managing COVID-19 and disciplinary processes to local governments which subscribe to the service.

For more information, please visit the WALGA website www.walga.asn.au

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