Can Employers Direct Employees to Get Vaccinated?
The Australian media has recently reported on a series of companies that have directed vaccinations for their employees, such as SPC.
Employees have to follow lawful, reasonable, necessary, and proportionate directions of their employers.
In determining whether or not a directive to be vaccinated is lawful and reasonable, an employer should give consideration to the following matters (amongst others):
- The current health advice given by the Federal Government;
- The industry the employer is engaged in;
- Workplace health and safety obligations;
- Provisions in employment contracts, awards, or enterprise agreements;
- Consultation with employees (if any); and
- Exemptions to the direction.
The Fair Work Commission has recently provided some guidance regarding this situation in a decision handed down in the matter of Ms. Jennifer Kimber.
Ms. Kimber was employed as a receptionist at Sapphire Coast Aged Care.
Ms. Kimber was dismissed because she refused to comply with a requirement to be vaccinated against influenza.
Ms. Kimber filed an unfair dismissal complaint which was dismissed.
However, Ms. Kimber appealed that decision.
Ms. Kimber had declined to have influenza vaccinations in 2017, 2018, and 2019, and the management of Sapphire apparently took no issue with this.
Ms. Kimber’s decision to decline the vaccination was based upon an adverse reaction she had to an influenza vaccination in 2016.
The Commission Dismissed the Appeal
Vice President Hatcher and Commissioner Riordan stated “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”.
The Commission’s decision was not however unanimous.
In a strongly worded dissent, Deputy President Dean commented “All Australians should vigorously oppose the introduction of a system of medical apartheid and segregation in Australia.
It is an abhorrent concept and is morally and ethically wrong, and the anthesis of our democratic way of life and everything we value.”
The Commission’s decision is available here.
Bambrick legal recommends that employers who are considering mandating a vaccination policy obtain advice before directing employees to be vaccinated.
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