There have been two recent cases in the Fair work Commission where the Commission has found that an employee’s dismissal was not unfair when they refused an influenza vaccine.

Childcare

The first case involved a childcare employee refusing to receive the influenza vaccine in the face of their employer introducing an immunisation policy that all staff must receive the vaccine unless they had a medical condition which made it unsafe.  The employee refused on the grounds of a medical condition however, the employer determined that the medical certificate was not sufficient and subsequently terminated the employment for the employee’s failure to be vaccinated and to meet the inherent requirements of the role.

After very lengthy consideration, the Commission found that the requirement of the vaccine was not an inherent requirement of the employment.  Notwithstanding, the Commission found that the employer’s policy was appropriate and had the employee provided real medical evidence for an exemption it would have been accepted by the employer. The Commission stated that the employer made its requirements abundantly clear and the employee failed to comply by choice.  The employee had failed to comply with a lawful and reasonable direction from her employer.

Aged Care

The second case is in the context of the employee working in a residential aged care facility whose employment was terminated following her refusal to be vaccinated against influenza.

Taking into account all of the evidence and sometimes lack of it, the Commissioner found that the dismissal was not harsh, unjust or unreasonable and dismissed the employee’s application for unfair dismissal.

The Commissioner also said that the employee is of course entitled to make her own personal decision about whether to have a flu shot.  The case involved a consideration of the employment consequences following upon the employee’s personal choice in 2020 not to be vaccinated and the employer’s subsequent decision to dismiss the applicant.

Importantly in this case, the NSW government has made several Public Health Orders relating to employees of residential aged care facilities which include a ban on persons attending a facility without a current influenza vaccination.  Therefore, the government not the employer required the vaccination and consequently, the employee was unable to perform the inherent requirements of her position as she was unable to enter or remain at the facility without a current flu vaccination.

Importantly in both cases the Commissioner found there was no procedural defects in the way the employer undertook the process.

Both cases involved complex and lengthy consideration of the facts and the law by the Commission. 

Cases such as these, like all employment cases, turn on their own facts and each employment case must be considered on its own individual and unique circumstances.  A prudent employer must always follow the correct procedural steps including allowing the employee to articulate and attempt to validate their reasons for refusing to follow such a direction and then properly considering those reasons. 

We at Hillhouse can help with the development and implementation of any such policies as well as with strategy and procedural management when addressing refusal or non-compliance.