Each year, an aged care business provided flu vaccinations to all staff members, and each year one employee - who had worked for the business for over 10 years - declined because she suffered an anaphylactic reaction immediately after a flu vaccination when she was a child.

In April 2020, the business informed employees they would be implementing a mandatory flu vaccination due to the COVID-19 pandemic. The employee was directed to have the vaccination by the end of the month, or to provide supporting evidence if she was unable to have the vaccination due to a medical condition.

The employee advised the business she was not able to have the flu vaccination because of her allergy.

On 16 April 2020, the employee was informed she would not be rostered to work because she would be creating a risk to clients. The business offered the employee the ability to use her paid leave entitlements but didn’t indicate how long she would need to be absent. Less than a week later, the employee received an email from the CEO reiterating the business’ standpoint on flu vaccinations. The CEO asked the employee to “please reconsider your position as it will affect your employment with [the business].”

On 5 May 2020, the employee provided the business with a medical certificate stating that she was “advised not to attend her workplace... until the wintertime (usually flu infection time) including September month has passed.”

The employee used her paid personal leave and long service leave entitlements from May to October 2020.

While on leave, the Injury Management Advisor confirmed that the employee would not be rostered onto further shifts or be allowed to attend the premises until she was vaccinated. An email also advised the employee’s accrued leave entitlements would run out in the fortnight ending 4 October 2020.

Upon receiving this email, the employee concluded that she was dismissed, with the effect date being 4 October 2020.

The employee made an unfair dismissal claim. In defending the claim, the business raised a jurisdictional objection, arguing that the Fair Work Commission (FWC) has no jurisdiction to deal with the claim because there was no termination of employment.

The employee argued at no point in her conversations with the CEO or the Injury Management Advisor, was she advised that she would be on unpaid leave after she had used all her accrued leave entitlements.

The decision

The decision made by the FWC did not consider whether the dismissal was ‘fair’ or whether the employer was able to require its employees to be vaccinated - the decision only contemplated whether the employee had been ‘dismissed’.

The FWC concluded it was “an entirely unsatisfactory proposition; [the employee] could be held in limbo for months and years while the [business] reviewed its position”. Consequently, the FWC was satisfied the employee was dismissed on 4 October 2020 when her paid leave was exhausted.

The FWC’s decision means the merits of the unfair dismissal application will, unless the claim is settled, be heard.

In her decision, Commissioner Hunt highlighted the issues to be considered, noting “there is much discussion around the legality of employers requiring employees to be vaccinated against influenza in light of the adverse reaction a vulnerable person might have... each circumstance of the person’s role is important to consider, and the workplace in which they work in determining whether an employer’s decision to make a vaccination an inherent requirement of the role is a lawful and reasonable direction”.

Learnings for business

This case highlights the need for careful consideration before implementing or changing workplace policies or requirement. It also demonstrates a failure to roster an employee could be deemed to amount to a dismissal.

It is vital business carefully consider each employee’s circumstance on a case-by-case basis and take advice to ensure they understand the risks before they take any action.

How we can assist

If you are contemplating dismissing an employee, our experienced consultants can lead you through correct procedures and assist your business to develop long-term strategies that support the business through a termination, resignation, or redundancy.

Victorian Chamber consultants can represent businesses in addressing claims and draft documentation, from response forms to submissions and witness statements.

The Workplace Relations Advice Line provides general advice on a range of workplace issues, including:

• Award interpretation, classification, and minimum entitlements
• Disciplinary processes, performance management and termination
• Personal illness and injury
• Parental leave and flexible working arrangements
• Redundancy
• Occupational Health and Safety and WorkCover

For assistance on any aspect of your employment obligations, please call the Victorian Chamber Workplace Relations Advice Line on 8662 5222 or email the team at workplacerelations@victorianchamber.com.au.

[2021] FWC 231