Was an employee fairly dismissed for refusing flu shot?

Public news

In a case likely to strike a chord with employers considering compulsory COVID-19 vaccines for employees, especially in certain industries, a worker has been permitted to pursue a claim that her employer unfairly dismissed her by placing her on indefinite unpaid leave for declining to receive a flu vaccination, which the employer mandated for the COVID-19 pandemic.

The Fair Work Commission rejected the employer's claim that the care assistant had not been dismissed, finding its refusal to roster her on after she exhausted her paid leave entitlements ended both the "impasse" between the parties and the worker's employment.

"It is clear that [the worker] no longer can meet what [the employer] states [are] the inherent requirements of the position," the Commissioner said.

The Commissioner stressed that it was "not inconceivable" that in the coming months more employers would make obtaining influenza vaccinations, and COVID-19 vaccinations when they became available, an inherent requirement of workers' roles.

"It may be that a court or tribunal is tasked with determining whether [an] employer's direction [to this effect] is lawful and reasonable, however in the court of public opinion, it may not be an unreasonable requirement. It may, in fact, be an expectation of a large proportion of the community," the Commissioner said.

The main consideration in the worker's substantive case would be "whether the [employer's] decision to make an influenza vaccination an inherent requirement of the job is lawful and reasonable having particular regard to [the worker's] care of vulnerable clients in their home", she said.

The Commission heard the 64-year-old worker had declined to receive the annual employer-provided influenza vaccination for 10 years, claiming she suffered anaphylaxis immediately after receiving such a vaccine in the Philippines when she was seven.

In April last year, the employer advised her that due to the COVID-19 pandemic it had updated its immunisation policy and she was now required to be immunised against the flu.

The worker refused and the employer placed her on paid leave, telling her she posed a significant risk to its aged care clients and was unfit to attend work.

The worker's paid entitlements were exhausted by October and she claimed unfair dismissal, telling the FWC that the employer's duty of care for her health and safety included not forcing her to be immunised when this posed a significant risk to her health.

She could work safely with clients by using PPE and taking other safety precautions, she argued.

The employer argued that it had not dismissed the worker, and she could return to work if she received a vaccination.

The Commissioner asked the worker whether she had sought recent advice on any medical advancements since she was vaccinated 57 years ago, and on whether she could safely have a vaccination with an EpiPen at hand, but the worker asserted that she would never have a vaccination because she believed it could kill her.

Meanwhile, the employer declined the Commissioner's invitation to provide an undertaking to make a formal decision on whether or not to dismiss the worker.

This was "entirely unsatisfactory", the Commissioner said, as the worker "could be held in limbo for months and years while the [employer] reviewed its position".

The Commissioner dismissed the employer's jurisdictional objection and listed the unfair dismissal claim for determination.