Article Category - Employment Law By Angus Edwards 01 October 2021

With over 80% of the population having received their first dose of a COVID-19 vaccine, there is now a roadmap to reopening the state.  Businesses are looking for answers about how it will all work.

The issue of mandatory vaccinations for employees is a hot topic of discussion.  With a lack of clear guidance from the Government, businesses are being put in a difficult position to make their own decisions.  In some industries health orders provide some backbone to decision making, however for many other businesses there is less certainty.

On 27 September 2021 the Full Bench of the Fair Work Commission handed down their appeal decision in Kimber v Sapphire Coast Aged Care Limited.  In short, the employer had given direction to the employee that she needed to have the flu vaccine.  This occurred in 2020 when COVID was running rampant through nursing homes and there was no COVID-19 vaccine. NSW Health had issued a Health Order, which mandated that all staff in aged car were required to have the flu vaccine.   

Due to an adverse reaction some years earlier the employee refused to have the vaccine. The employee provided no medical evidence that exempted her from the requirement under the Health Order.

The employees' refusal lead to a decision to terminate her employment for failing to comply with a  reasonable direction of the employer and also as, due to the Health Order, the employee could not attend the employer's premises and perform the inherent requirements of her position at the facility.  The termination was noted to be fair and her unfair dismissal application was unsuccessful.

On appeal, the employee was also unsuccessful, by a 2:1 majority of the Full Bench of the Fair Work Commission.

The Commission found that the employer had acted in a prudent and reasonable way, that the direction given was lawful and reasonable, given the employee could not perform the inherent requirements of her position.

In summary, and most importantly in respect of the likely attitude of the Fair Work Commission to further cases around vaccination, the majority said: "we consider that the public interest weighs entirely against the grant of permission to appeal. We do not intend, in the circumstances of the current pandemic, to give any encouragement to a spurious objection to a lawful workplace vaccination requirement."

In the dissenting judgment, Deputy President Dean said that the dismissal was unfair and that those with anti-vax views should be protected.  Deputy President Dean then went on to say that, "she hoped the majority decision is recognized as an anomaly and not followed by others." Thus, adding some confusion to the mix.

So what does this mean for business?

For businesses in industries without specific Health Orders, after 1 December when restrictions ease, the decision around vaccination of staff is not clear-cut.  The primary obligation is to provide a safe workplace.  This requires a risk assessment to be undertaken in respect of COVID-19 and transmission in the work place.  A consideration of steps to mitigate or eliminate the known risk is required. 

Vaccination may be a requirement, particularly in settings where close contact occurs, such as gyms, airlines or in healthcare.  In other situations, the rollout of rapid antigen testing may allow businesses to ensure staff have not contracted COVID-19.  In all of these situations, a careful analysis of the risk and circumstances is required, especially where some staff will not be vaccinated. 

For those who have a valid medical exemption (there are very limited circumstances) a decision will be required as to what happens.  There is a risk of discrimination action due to a disability which prevents the person being vaccinated.  There may need to be other measures in place, such as changing work arrangements or a testing regime to ensure the whole workforce and customers are protected.

For business owners looking at the requirement for vaccination there are some key takeaways from this decision:

  1. Undertake a risk assessment regarding COVID-19;
  2. Update your COVID safety plan;
  3. Have a clear vaccination policy;
  4. Give a clear direction to staff if you require them to be vaccinated;
  5. Consider the inherent requirement of the job and whether it can be performed from home, in which case vaccination may not be warranted;
  6. Afford procedural fairness in actioning non-compliance with directions;
  7. Be careful not to discriminate.

For advice in navigating this complex area, or for assistance in preparing a Vaccination Policy please contact our experienced team on (02) 6331 2911. We're here to help!

Angus Edwards | Principal