FWC upholds dismissal over flu vaccine

The Fair Work Commission (FWC) has upheld an aged care worker’s dismissal last year for refusing to get a flu shot in a ruling that strengthens the position on mandatory vaccinations.

In a judgement published on Monday (September 27), the FWC found that the woman’s dismissal from her receptionist job at Sapphire Coast Community Aged Care’s Imlay House in NSW was “for a valid reason, was procedurally fair, and was not harsh, unjust or unreasonable”.

The woman had refused to get the flu vaccine after it was made mandatory by the NSW Health Minister in March 2020 for all residential aged care staff.

The woman claimed she had a severe allergic reaction to the flu shot in 2016, and presented a letter from a Chinese medical practitioner who had prescribed her with “immune boosting herbs”. She later provided letters from a local GP that pointed to her severe adverse reaction.

However, FWC Vice President Adam Hatcher and Commissioner Bernie Riordan found “there was no medical evidence” the woman’s condition was attributable to her 2016 vaccination.

Further, they found she “held a broader anti-vaccination position” after she “google searched all sorts of stuff” on the side effects of vaccines.

flu vaccine

“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,” the majority judgement said.

In a dissenting judgement, FWC Deputy President Lyndall Dean said he “strenuously disagreed” with the majority decision, which had denied Ms Kimber the protections afforded by the Fair Work Act in part because of “an inference that she holds a general anti-vaccination position”.

Read more: CCIWA releases COVID-19 vaccine guide for business    

Read more: Businesses to partner in vaccine rollout

CCIWA Workplace Relations Director Ryan Martin said the majority ruling “strengthens the position on mandatory vaccination”.

“While the Fair Work Commission decision relates to the flu vaccine, this is an authority on mandatory vaccines generally,” he said.

It also reinforces the need for businesses to get legal advice when considering mandatory vaccines, he said.

“If you do it properly and tick all legal boxes then there is building case law that suggests you can defend your position,” he said.

In WA, unless an exemption applies, the COVID-19 vaccine is mandatory for:

  • All residential aged care workers;
  • All quarantine workers;
  • All employees of WA health system entities; and
  • At-risk WA port workers.

For advice on vaccinations and the workplace contact CCIWA’s Workplace Relations team on 1300 422 492 or via [email protected].

For general advice and guidance, contact CCIWA’s Employee Relations Advice Centre on (08) 9365 7660 or [email protected].

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