The Fair Work Commission has upheld the sacking of an aged care worker who refused a flu vaccine, the second time in a month it has found that an employer can require staff to be vaccinated.
In her unfair dismissal claim, the former receptionist at Imlay House in Pambula, New South Wales, Jennifer Kimber, said she had had an adverse reaction to a flu vaccine in 2016 and produced a note from a practitioner of Chinese medicine who prescribed her “immune boosting herbs”.
The decision to reject Kimber’s claim is part of a growing body of case law affirming an employer’s direction to get a vaccination to be “lawful and reasonable”.
According to the Fair Work Ombudsman, Queensland is the only state so far to require its health workers to be vaccinated against Covid-19, although that may change after the prime minister, Scott Morrison, called for nationally consistent public health orders on vaccines. .
Earlier in April, the commission upheld the sacking of a childcare worker who refused a flu jab, finding that a direction to be vaccinated was lawful and reasonable.
On Thursday, the commission rejected Kimber’s unfair dismissal application against Sapphire Coast Community Aged Care, which operates the Imlay House aged care centre.
In late March 2020, the New South Wales government put in place public health orders in response to Covid-19 requiring people working in aged care facilities to have flu vaccinations.
Kimber objected, claiming she had had an adverse reaction to a flu vaccine in 2016. She produced a note from a practitioner of Chinese medicine with a bachelor of health science and masters of science who said Kimber would “prefer to not have the flu vaccination”.
“I have prescribed her immune boosting herbs as well as antiviral herbs in a formula that has been being [sic] used in China in the prevention of Covid-19 and seasonal flues [sic],” it said.
The aged care centre stood Kimber down in April 2020 ahead of the deadline to be vaccinated, then sacked her in June for being unable to fulfil the inherent requirements of her role.
Commissioner Donna McKenna agreed with that conclusion..
“If an employee makes a personal choice not to have a flu shot, then an employer which provides residential aged care services and which is subject to a [public health order] has its own obligations,” she said.
“I find that the respondent … acted in an objectively prudent and reasonable way in not permitting the applicant to work within Imlay House absent an up-to-date flu shot.”
Australia’s Covid-19 vaccination program is voluntary, although Morrison has said the national cabinet will determine “where if in any cases there is a requirement to have that vaccine”, such as a condition for travel and for frontline health and aged care workers.
Safe Work Australia has issued a guidance that employers are not required to order their employees to be vaccinated but may be able to require customers and visitors to prove they have had a jab against Covid-19 as a condition for entry.
The Fair Work Ombudsman has warned employers that “in the current circumstances, the overwhelming majority … should assume that they can’t require their employees to be vaccinated against coronavirus”.