The appellant, a receptionist in an aged care facility, was dismissed for being unable to perform the inherent requirements of her role due to her refusal to comply with a NSW public health order that required people who entered aged care facilities to be vaccinated against influenza. At first instance the Fair Work Commission decided that the appellant’s dismissal was for a valid reason, was procedurally fair and not harsh, unjust or unreasonable.
The appellant sought permission to appeal. The appellant had previously received 2 influenza vaccinations, one of which the appellant alleged caused adverse effects. The appellant provided no evidence that the adverse effects were caused by the vaccination. The public health order requires an up to date influenza vaccination. Staff are not permitted to work without a vaccination unless they provide certification from a medical practitioner of a medical contraindication to the influenza vaccine. The appellant gave the respondent a letter from a practitioner of Chinese medicine to attempt to satisfy the exemption. The appellant was stood down. The appellant then gave the respondent an exemption form from a general medical practitioner who did not treat her for the adverse reaction that the appellant alleged had resulted from being vaccinated on a previous occasion. The form identified a medical contraindication described as ‘severe facial swelling and rash lasting 10 months’. The appellant attempted to re-enter her work premises and was escorted out.
The Full Bench majority did not consider that granting permission to appeal would be in the public interest. The Full Bench majority found that the mere completion of an approved form identifying a medical condition was not sufficient to establish a medical contraindication sufficient to grant an exemption from the public health order. The Full Bench majority also noted that the appellant’s condition, at its highest, was not a medical contraindication.
The Full Bench majority found that the main tenet of the appellant’s argument, that she was allergic to the vaccine, was not credible given circumstantial evidence which included her general anti-vaccination position as revealed in a letter she sent to the respondent. The Full Bench majority refused permission to appeal.
The Full Bench minority in dissent held permission to appeal should be granted and appeal should be upheld because the appellant was unfairly dismissed. The Full Bench minority held that:
- the respondent did not actually give a direction to appellant to have the flu shot
- the appellant had a valid exemption from the public health order
- due to the exemption, the respondent would have had no basis for giving the appellant a lawful and reasonable direction to have the flu vaccine
- it was not open to the Commission to find at first instance that the appellant was unable to perform the inherent requirements of the job
- in disregarding the form signed by medical practitioner, the respondent substituted its own medical opinion
- the respondent was incorrect to rely on a Commonwealth Government Media Release setting out qualifying contraindications to flu vaccination
- the Commission at first instance erred in criticising medical practitioner’s opinion
- the appellant was only required to provide completed exemption form, not prove that adverse reaction caused by vaccine, and
- it was inappropriate to label the appellant as an ‘anti-vaxxer’.
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