Mandatory covid 19 vaccinations and the workplace

Although not the only matter considered in this unfair dismissal case, an extract of which is published here, the main criteria being considered by the Fair Work Commission was the implication of an employee not being vaccinated against Covid 19.

“Vaccination Reason

General principles

[28] In the absence of a contrary intention, there is a term implied into all contracts of employment to the effect that employees must follow the lawful and reasonable directions of their employer. 24

[29] A lawful direction is one which falls within the scope of the employee’s employment. An employee is not obliged to obey a direction which goes beyond the nature of the work the employee has contracted to perform, although an employee is expected to obey instructions which are incidental to that work. 25

[30] A direction which endangers an employee’s life or health, or which the employee reasonably believes endangers his or her life, will not be a lawful order, unless the nature of the work is itself inherently dangerous, in which case the employee has contracted to undertake the risk. 26 Further, the direction must be lawful in the sense that it must not direct the employee to do something that would be unlawful, such as driving an unregistered or unroadworthy vehicle.27

[31] The reasonableness of a direction given to an employee is a question of fact and must be judged objectively having regard to all the circumstances, including the nature of the particular employment, the established usages affecting the employment, the common practices that exist, the general provisions of any instrument governing the relationship, and whether the employer has complied with any relevant consultation obligations. 28 It is not necessary to show that the direction in question is the preferable or most appropriate course of action or in accordance with ‘best practice’ or in the best interests of the parties. There may be a range of options open to an employer within the bounds of reasonableness.29

[32] A direction lacking an evident or intelligible justification will not be reasonable, but that is not the only basis on which unreasonableness can be established. All the circumstances must be considered. 30

……………………………………………Consideration

[41] Mr Casper’s contract of employment required him to comply with New Horizon’s “policies and procedures” and gave New Horizons the right to summarily dismiss him if he engaged in serious breach of such “policies and procedures”. 31 Mr Casper’s contract did not include an express term requiring him to comply with lawful and reasonable directions issued by New Horizons. I am satisfied that an implied term to that effect formed part of Mr Casper’s contract of employment with New Horizons.32

[42] Mr Casper’s contract of employment also informed him that the terms and conditions of his employment with New Horizons were contained in “the New Horizons Enterprise Agreement 2018 (the Agreement) or any other agreement which replaces the Agreement (its successor)”. 33 There is no dispute that the New Horizons Enterprise Agreement 2018 (Enterprise Agreement) applied to Mr Casper during his employment with New Horizons.34 Clause 8 of the Enterprise Agreement contains consultation obligations.

[43] The obvious purpose and object of the direction for Mr Casper and other New Horizons employees working within the SST program to be vaccinated against COVID-19 was to protect the health and safety of those employees and the vulnerable people with whom they come into contact in providing services. In this regard, the following comments made in the risk assessment undertaken by New Horizons at the request of the DCJ provide important context:

“Supporting and Securing Tenancies (SST) involves supporting some of the people most vulnerable to the consequences and likelihoods of Covid-19, including people who have been rough sleeping and transient.

In many instances, it will not be possible to confirm the health status of the person receiving service, particularly in respect to COVID-19. This includes status in relation to infection; vaccination and close contact or previous known whereabouts.

It has been reported that some of the people we serve will be unable or unwilling to register their attendance at our sites either by using QR codes or more traditional sign-in/attendance records.”

[44] In light of this context and the nature of the work Mr Casper was employed to do by New Horizons, I am satisfied that the direction to be vaccinated against COVID-19 fell within the scope of Mr Casper’s employment with New Horizons. 35

[45] There is nothing illegal or unlawful about becoming vaccinated. 36

[46] The direction for Mr Casper to be vaccinated against COVID-19 enlivened the consultation obligations in the Work Health and Safety Act 2011 (NSW) (WHS Act), including ss 47 to 49, 37 and the Enterprise Agreement. On the basis of the relevant facts to which I have referred above, I am satisfied that New Horizons:

(a) shared relevant information with Mr Casper and its other relevant employees about whether a direction should be made requiring those employees to be vaccinated against COVID-19. In this regard, it is significant that New Horizons explained the basis on which it was considering making the direction to Mr Casper before the risk assessment was completed. 38 In addition, a “live” version of the risk assessment was provided to employees for their feedback before it was finalised;39

(b) gave Mr Casper and its other relevant employees a reasonable opportunity to express their views and contribute to the decision making process;

(c) took into account the views of workers; 40 and

(d) advised Mr Casper and its other relevant employees of the outcome of the consultation in a timely manner.

[47] Having regard to all the circumstances, I am satisfied that New Horizons complied with its consultation obligations under the WHS Act and the Enterprise Agreement in connection with the making and communication of its decision for employees working in the SST program, including Mr Casper, to be vaccinated against COVID-19 unless they had a medical contraindication.

[48] There is no doubt that Mr Casper has a right to choose what occurs with respect to his own person. However, Mr Casper’s right to personal and bodily autonomy and integrity was not violated by the direction for him to be vaccinated against COVID-19 in order to continue working in the SST program. 41 That direction did not purport to confer authority on anyone to perform a medical procedure on anyone else. As Beech-Jones CJ at Common Law said in Kassam v Hazzard:42

“It can be accepted that there is room for debate at the boundaries of what external factors might vitiate a consent to medical treatment so as to render the treatment a battery and a violation of a person’s right to bodily integrity. […] People may choose to be vaccinated or undertake some other form of medical procedure in response to various forms of societal pressure including a law or a rule, an employment condition or to avoid familial or social resentment, even scorn. However, if they do so, that does not mean their consent is vitiated or make the doctor who performed the vaccination liable for assault. So far as this case is concerned, a consent to a vaccination is not vitiated and a person’s right to bodily integrity is not violated just because a person agrees to be vaccinated to avoid a general prohibition on movement or to obtain entry onto a construction site. Clauses 4.3 and 5.8 of [Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order (No. 2) 2021 (NSW)] do not violate any person’s right to bodily integrity any more than a provision requiring a person undergo a medical examination before commencing employment does.”

[49] I do, however, take into account in my assessment of the reasonableness of the direction issued to Mr Casper that the effect of the direction was to apply pressure to Mr Casper to surrender his bodily integrity (by undergoing medical treatment) in circumstances where he did not wish to do so. 43

[50] The direction for employees working in the SST program to be vaccinated against COVID-19 has a logical and understandable basis. In particular, employees working in that program have face to face contact with vulnerable people, who may or may not be vaccinated or have COVID-19 at the time, and who may be susceptible to contracting COVID-19 or becoming seriously ill or dying from it. The evidence on which New Horizons relied from the decision of the Supreme Court of New South Wales in Kassam v Hazzard, and which is consistent with the expert medical evidence accepted by the Full Bench in Mt Arthur, 44 establishes that “COVID-19 vaccines reduce the risk of infection and transmission of the disease, attenuate the symptoms and possible consequences, and generally have only mild to moderate short-term side effects”. While it is true, as Mr Casper submits, that vaccines against COVID-19 do not stop people from contracting the disease, becoming ill or dying from it, or transmitting it to other people, the vaccines do reduce the risks of contraction, transmission and serious consequences. It is the reduction of such risks on which the direction issued by New Horizons was focused.

[51] I am satisfied that the requirement for employees working in the SST program to be vaccinated against COVID-19 was a reasonably proportionate response to the risk created by COVID-19. Taking a COVID-19 vaccine involves some risk. New Horizons relied on the finding by Justice Beech-Jones in Kassam v Hazzard that vaccines “generally have only mild to moderate short-term side effects” [emphasis added]. 45 No scientific or medical evidence was adduced in these proceedings to challenge or contest that finding. The risks of taking a vaccine must be weighed against the benefits of doing so. The benefits are obvious in circumstances where employees in the SST program deal with vulnerable persons and the vaccines reduce the risk of contraction, transmission and serious illness or death from COVID-19. I am also satisfied that the requirement was imposed having regard to the circumstances of those employees working in the SST program and the vulnerable people with whom they come into contact.

[52] Further, the direction was put in place by New Horizons after being required by its client, the DCJ, to undertake a risk assessment in the management of COVID-19, including as to whether vaccination was a reasonably practicable step to manage COVID-19. New Horizons sought input from relevant employees, including Mr Casper, into that risk assessment, which identified and weighed up a range of risks and control measures. I am satisfied that the direction to be vaccinated against COVID-19 has an evident and intelligible justification. In addition, the timing for the commencement of the direction was determined by reference to the circumstances imposed by the DCJ and COVID-19 cases in the community in late 2021.

[53] Mr Casper’s arguments in reliance on s 51(xxiiiA) of the Constitution fail on a number of fronts. First, this case does not concern any law which the Commonwealth parliament has made. Secondly, as I have already sought to explain, Mr Casper had a choice as to whether or not to be vaccinated against COVID-19. His free will was not removed or violated. Mr Casper elected not to be vaccinated. A consequence of that choice is that he did not comply with the direction given to him by New Horizons that employees working in the SST program be vaccinated against COVID-19, unless they have a medical contraindication. Non-compliance with that direction resulted in the termination of Mr Casper’s employment. I acknowledge that the choice for Mr Casper was a difficult one. However, it remained his decision to make.

[54] There is no substance to Mr Casper’s argument in reliance on s 109 of the Constitution. This case does not involve a law of the Commonwealth or a law of a State. Hence there is no inconsistency between any such laws. This case involves the giving of a direction to an employee pursuant to an implied term in a contract of employment.

[55] As to Mr Casper’s contention that COVID-19 vaccinations are both schedule 4 poisons and experimental drugs, the vaccines which New Horizons directed its employees to take if they wished to continue working in the SST program are vaccines approved by the Australian Technical Advisory Group on Immunisation (ATAGI).

[56] I am satisfied on the evidence given by Mr Miles that New Horizons responded reasonably to Mr Casper’s requests for information about its direction and the basis for it. Those responses provided appropriate information and links or suggestions of additional places where Mr Casper could obtain further information. The reality is that Mr Casper did not agree with the direction to be vaccinated or the information given to him by New Horizons to support its decision in that regard.

[57] There is no merit in Mr Casper’s suggestion that neither New Horizons nor any of its employees are authorised officers of the New South Wales government, with the result that they did not have any authority to require him to be vaccinated. Notwithstanding some erroneous references in Mr Miles’s correspondence to Mr Casper in relation to public health orders, there were no public health orders that applied to Mr Casper in connection with his employment with New Horizons. Reliance was placed by New Horizons on its contractual power to issue lawful and reasonable directions to its employees. An employer does not require authority from any government to exercise such contractual powers.

[58] Having regard to all the circumstances, I am satisfied that the direction requiring Mr Casper to be vaccinated against COVID-19, unless he had a medical contraindication, was lawful and reasonable.

[59] There is no dispute that Mr Casper was not, during his employment with New Horizons, vaccinated against COVID-19 and he did not have a medical contraindication. 46 It follows that Mr Casper did not comply with New Horizons’ lawful and reasonable direction that he be vaccinated against COVID-19, unless he had a medical contraindication, if he wanted to continue working in the SST program. I am satisfied that Mr Casper’s failure to comply with this lawful and reasonable direction gave New Horizons a sound, defensible and well founded reason to terminate his employment.

…………………………………………..Conclusion

[82] After considering each of the matters specified in section 387 of the Act, my evaluative assessment is that New Horizons’ dismissal of Mr Casper was not harsh, unjust or unreasonable. New Horizons issued Mr Casper with a lawful and reasonable direction to be vaccinated against COVID-19, unless he had a medical contraindication, if he wished to continue to work in the SST program. Mr Casper did not comply with that direction. In addition, Mr Casper engaged in inappropriate conduct by delivering a box containing white feathers to New Horizons employees, as an attempt to intimidate, bully or harass those employees. Those matters gave New Horizons a valid reason to dismiss Mr Casper. I consider that New Horizons afforded procedural fairness to Mr Casper prior to making a decision to bring his employment to an end.

[83] I am satisfied that New Horizons’ dismissal of Mr Casper was not unfair within the meaning of the Act. The application is dismissed.”

Casper v New Horizons (2022) FWC 1269 delivered 24 May 2022 per Saunders DP