Worker loses in FWC full bench decision on workplace vaccination mandates

A Fair Work Commission full bench majority has ruled that it is "entirely" against the public interest to grant a worker, who was sacked for refusing a flu shot, permission to appeal against the quashing of her unfair dismissal claim.

Vice President Adam Hatcher and Commissioner Bernie Riordan said they had real doubts over the aged care receptionist's claim she previously suffered an allergic reaction to the vaccine and they "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 a passionate dissenting judgment, Deputy President Lyndall Dean said the majority ruling "has denied [the worker] the protections afforded by the Fair Work Act in part because of 'an inference that she holds a general anti-vaccination position'".

G&B Lawyers, which represented the former Sapphire Coast Community Aged Care Ltd worker, confirmed the worker will challenge the decision in the Federal Court.

Sapphire dismissed the worker from her role at Imlay House in Pambula, NSW in July last year, for being unable to fulfil the inherent requirements of her role because she objected to being vaccinated against the flu, as required by a COVID-19-related public health order for residential aged care facilities.

The worker lost her bid to be reinstated in April this year, with FW Commissioner Donna McKenna backing the employer's decision not to accept the worker's influenza vaccine medical contraindication (IVMC) form.

Her GP had crossed the box for "other medical contraindication" on the form and stated she suffered "severe facial swelling and a rash lasting 10 months" after receiving a workplace flu shot in 2016.

Sapphire determined this did not meet the strict criteria for a qualifiable medical contraindication, meaning she wasn't exempt from the health order.

Commissioner McKenna found Sapphire "acted in an objectively prudent and reasonable way in not permitting the [worker] to work within Imaly House absent an up-to-date flu shot".

In seeking permission to appeal, the worker told Vice President Hatcher, Deputy President Dean and Commissioner Riordan that Commissioner McKenna should have found the health order did not create a legal impediment to her entering her workplace.

But Vice President Hatcher and Commissioner Riordan said they had "real doubt as to the credibility of the main tenet of [the worker's] case, namely that she objected to taking the influenza vaccine because of an alleged previous allergic reaction to it".

A specialist immunologist told the April proceeding that the worker's skin condition was probably chronic dermatitis. He said even if it was a rare case of vaccine-related reaction, it would have been a treatable condition that did not constitute a contraindication.

The FWC heard there was no record of the worker seeking medical treatment for her skin condition, her various accounts of her purported allergic reaction were inconsistent, and she did not tell Sapphire about this adverse reaction until she was stood down for refusing the flu shot last year.

Vice President Hatcher and Commissioner Riordan noted the worker revealed her "general anti-vaccination position" in May 2020, when she wrote to the employer stating she "strongly [believes] that whether to have an invasive medical procedure is a personal decision and I should not be subjected to coercion".

"We consider that the public interest weighs entirely against the grant of permission to appeal," Vice President Hatcher and Commissioner Riordan said.

Further, the worker's unwillingness to indicate whether she would have a COVID-19 vaccination "points to the lack of utility in granting permission to appeal, since there could be no possibility of granting [her] preferred remedy of reinstatement absent an advance commitment from her to take the COVID-19 vaccine", they said.

Deputy President Dean said she would have quashed Commissioner McKenna's decision and reinstated the worker to her former position. "Never have I more strenuously disagreed with an outcome in an unfair dismissal application," she said.

She said she disagreed with the majority that IVMC forms limited possible contraindications to the point where the health order exemptions did not apply to this worker.

Deputy President Dean noted many employers are declaring vaccination mandates despite Safe Work Australia stating "most employers will not need to make vaccination mandatory to comply with the model WHS laws".

She said employers need to implement a range of controls other than vaccines to meet their health and safety obligations in relation to COVID-19 and it is "not proportionate, reasonable or necessary to 'lock out' those who are unvaccinated".

"All Australians, including those who hold or are suspected of holding 'anti-vaccination sentiments', are entitled to the protection of our laws, including the protections afforded by the Fair Work Act. In this regard, one can only hope that the majority decision is recognised as an anomaly and not followed by others," she said.

The Australian Industry Group welcomed the majority's "sensible" decision to support Sapphire's right to mandate influenza vaccinations in the midst of the COVID-19 pandemic.

"This is the first FWC full bench decision on the issue of vaccination mandates to be handed down during the pandemic," AiG chief executive Innes Willox said.

"It is pleasing that the full bench has supported an employer's right to mandate vaccinations where reasonable in the circumstances."

For advice on HR-related matters, please contact our People Risk Solutions team on 1300 208 828 or advice@abphillips.com.au