Unfair dismissal and influenza vaccines

A former employee of an aged care facility has lost an unfair dismissal case after she was dismissed when she declined to have an influenza vaccine because of a severe reaction to one previously. It is evident from the Commissioner’s reasons for decision that the employer had managed to persuade her that the employer’s position was defensible because of the employer’s statutory obligations in New South Wales.

“Consideration

[51] Section 387 of the Act identifies the criteria for considering harshness etc. The Act provides that considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account certain matters, which I now turn to consider.

(a) Whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees)

[52] Lawful and reasonable direction to have a 2020 flu shot: The dismissal letter identified that the termination of employment occurred because the applicant had “refused to be vaccinated” despite “multiple lawful and reasonable directions to be vaccinated against influenza” as per clause 5(d) of the March PHO and clause 6(1)(d) of the June PHO.

[53] I find the respondent did not, at any time, give any within-terms “directions” to the applicant to have a flu shot. The evidence simply does not support a conclusion there was any written or verbal direction given to the applicant in such respects by Mr Sierp, Ms Main or anyone else associated with the management of the respondent (let alone “multiple directions”) – and this is so notwithstanding, for example, what the applicant wrote in her letter dated 12 May 2020 to Mr Sierp asserting she had been given such a direction. That is, the applicant wrote in the letter dated 12 May 2020: “I refer to your letter dated 30th April 2020 regarding the recent direction for me to have a mandatory influenza vaccination, …”.

[54] Although no directions were given by the respondent to the applicant to have a flu shot, equally, the respondent nonetheless firmly communicated to the applicant (and to its employees generally) that having an up-to-date flu shot was necessary for attendance for work at Imlay House. The communications from Mr Sierp referred, for example, to the directions given by the NSW Minister for Health in the PHOs rather than the respondent itself giving directions to have a flu shot. That is, the PHOs, within terms, refer to various directions, i.e. “The Minister directs that …”. The expectation or implicit requirement of the respondent that the applicant (and other employees) should receive the 2020 flu shot was couched in terms which referred (initially) to the NSW Government’s March PHO and (subsequently) to the June PHO; and (after 3 April 2020) to the CMO Advice as set out in the Media Release.

[55] Given the respondent did not, in fact, give any direction to the applicant to have a 2020 flu shot, I find the respondent’s reliance in the dismissal letter upon its purported “multiple lawful and reasonable directions to be vaccinated against influenza” was a misstatement. Nonetheless, the practical import of the communications was effectively to indicate that the respondent expected or required the applicant (and other employees) to have a flu shot unless there was a medical contraindication as described in the CMO Advice.

[56] Putting aside my finding that the respondent did not give any directions to the applicant to have a flu shot, there was sharp contest in the proceedings about whether the respondent could give a lawful and reasonable direction to the applicant to have a flu shot – relevantly in the context of the applicant’s attendance at work and/or continuation of employment at the Imlay House residential aged care facility at a time when the PHOs were in place. Certainly, the respondent could not physically compel the applicant to have a flu shot against her own personal wishes. Regardless of any direction by an employer (whether described in terms of being lawful and reasonable, or described in other similarly-pitched terms), an employee is entitled to make his or her own personal choice about whether to have a flu shot. Be that as it may, that is not the end of the matter. 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 PHO has its own obligations under that PHO. Here, specific obligations were imposed upon the respondent by the March PHO and then the June PHO. In the complexity of NSW Government and Australian Government interactions, requirements and pronouncements about aged care facilities that were occurring in 2020, the respondent was not only trying to adhere as best it could to the NSW Government’s PHOs, it also was trying to listen to, and apply, what was being communicated at an Australian Government level (and by Mr Sierp’s reading of the Australian Immunisation Handbook). The approach adopted by the respondent was to apply the CMO Advice as to absolute contraindications rather than allow for other categories of contraindications, as appears to be contemplated in the IVMC Form.

[57] It seems to me that if a direction in fact had been given by the respondent to the applicant to have a flu shot, any such direction would not only have been lawful it would have effectively reflected what in fact was the law as it applied in 2020 concerning employees working within NSW residential aged care facilities (subject to the exemptions within the PHOs); as a corollary, any such direction would not only have been lawful, but also reasonable.

[58] Inability to perform the inherent requirements of the job: The dismissal letter indicated that, as the applicant had not received a 2020 flu shot, the applicant was “unable to fulfil the inherent requirements” of her role.

[59] The applicant was unable to perform the inherent requirements of her job if she was not properly permitted to enter or remain at Imlay House absent having an up-to-date flu shot. That is, if the applicant could not enter Imlay House, she could not perform the (principally) receptionist role and other clerical inherent requirements of her position. Moreover, although the applicant mentioned in her cross-examination that she could have worked from home, there was no evidence the applicant made any application to the respondent to perform from home any of the other clerical and/or administrative aspects of her job (and nor was there any evidence the respondent considered non-receptionist duties on a work-from-home basis as an option). The applicant’s case was that she could attend work at Imlay House to perform the inherent requirements of her job but was prevented from doing so by the respondent – and later unfairly dismissed by the respondent – based upon the erroneous failure of the respondent to accept Dr Mackay’s first Letter of Support, Dr Mackay’s second Letter of Support and, particularly, the IVMC Form with Dr Mackay’s certification. The applicant’s case contended for a conclusion by the Commission that as the applicant had provided to the respondent the IVMC Form the exclusion of the applicant from her Imlay House workplace was without a proper foundation and the dismissal lacked a valid reason – but I have accepted the submissions for the respondent in such respects in preference to those for the applicant.

[60] Flu shot requirement: I find that the respondent, principally through Mr Sierp, acted in an objectively prudent and reasonable way in not permitting the applicant to work within Imaly House absent an up-to-date flu shot. I accept the submissions for the applicant that Mr Sierp did not have a detailed knowledge of the Australian Immunisation Handbook (indeed, Mr Sierp himself professed only to be “familiar” with it), but I find he acted on his best understanding of it, conditioned particularly in the context of the CMO’s Advice as set out in the Media Release. To recap, the Media Release identified matters including the following:

  • “While flu vaccination does not prevent COVID-19, a flu vaccination is critical to protecting the health of Senior Australians, who are more susceptible to contracting influenza.”
  • “Due to the COVID-19 pandemic, the Australian Health Protection Principal Committee (AHPPC), the key medical decision-making committee for health emergencies, has advised that all residential aged care staff and visiting workers should be vaccinated by 1 May 2020.”
  • “State and Territories have issued directions to give effect to these requirements. These directions will be enforced and persons who fail to comply could face penalties including fines for individuals and for bodies corporate.”
  • “Minister Colbeck said he has received the following advice from the Australian Government’s Chief Medical Officer Professor Brendan Murphy:

‘The only absolute contraindication to flu vaccination is a history of previous anaphylaxis following vaccination, those who have had Guillain-Barré Syndrome following previous flu vaccination and people on check point inhibitor drugs for cancer treatment.’

Prof. Murphy said people who suffer from egg allergies – unless they have anaphylaxis – can be safely immunised.”

[61] True it is, as the applicant submitted, the Media Release had “absolutely no force at law”, but it would have been foolhardy indeed for Mr Sierp to purport to put his own gloss on, or ignore, what was said by the CMO and, for example, to substitute his own opinion/s for those of the CMO as to matters concerning contraindications to influenza vaccination – whether based on his own reading of the Australian Immunisation Handbook, or based on the reading for which the applicant contended in the hearing, or otherwise. Counsel for the applicant described Mr Sierp’s adherence to the CMO Advice within the Media Release as “pig-headed”. I reject that regrettable characterisation of Mr Sierp, a CEO who was making his best endeavours in relation to the operations of the residential aged care facility in what was undoubtedly a very difficult period of time within the aged care sector, for example, in relation to the multiple deaths at Sydney’s Newmarch House. An extract of the transcript of the cross-examination of Mr Sierp is illustrative as to the cautious approach in his reliance on the CMO Advice. The questions posed by counsel for the applicant are reproduced in plain text and Mr Sierp’s answers are in italicised text in the following extract:

“That is Dr Mackay’s influenza vaccine medical contraindication form? Do you – you received that on or about 1 July 2020? Yes.

You saw that it was an official New South Wales government form? Yes.

And you saw on that form that there were other medical contraindications written on that form apart from anaphylaxis – did you see that? Yes.

Did that cause you to doubt the completeness of the Minister’s attribution to Professor Murphy about that being the only genuine contraindication? No.

Why not? Because we had always followed what the Minister and Professor Murphy utilized as their definitions.

So I don’t want to be rude but did you think the department and the state minister were just waffling in the air when they added all those other boxes to be ticked? No.

What did you think they were doing? I didn’t write the form.

Doesn’t – can I just put to you that that form indicates that the narrow advice or part of advice from – that was quoted in the Minister’s press release is just that narrow and only part of the advice about what are accepted medical contraindications to the influenza vaccine? Did that cause you to think that? It didn’t tie in with Professor Murphy or the Minister’s – – –

Yes, precisely, so it didn’t tie in with what you understood Professor Murphy to be saying through the Minister’s press release and did that cause you to doubt what – what was the appropriate definition of a medical contraindicator to the influenza vaccine for the purposes of Ms Kimber’s case? It wasn’t challenging the contraindications.

Sorry? Did it cause you to doubt that Professor Murphy’s statement was complete? No.

You just thought those extra boxes about the cancer and those things were – they were just there for no reason, did you? Did you? No.

What reason did you think they were there for? Like a number of forms that are produced it did not tie in with this contraindication. As the provider, we’re allowed to challenge the information that we receive.

It didn’t tie in with what Professor Murphy had said, did it? That’s your evidence? In which question?

The matters on the form didn’t tie in with what Professor Murphy had said about medical contraindications to influenza vaccine, did it? It didn’t tie in with the public health order and the fact that the exemption – – –

Sorry, I’m asking you it didn’t tie in with what Professor Murphy had said, did it – or what you understood him to have said? The other box didn’t coincide with Professor Murphy’s.

But that didn’t cause you to doubt what Professor Murphy had to say, did it? No.”

[62] The respondent did not accept what was put forward by the applicant in relation to her refusal to have a flu shot and, in such respects, I find Mr Sierp took an objectively prudent and appropriate approach in his reliance on what was said by the CMO as identified by the federal Minister for Aged Care in the Media Release titled “Aged care workers must get flu vaccination”. Although the applicant submitted that the CMO Advice as set out within the Media Release amounted only to “hearsay” and that “the minister’s press release is really just some sort of throw-away”, it seems to me it carried greater weight than that; I did not find the submissions as to hearsay persuasive in as much as those submissions sought to diminish the significance of the advice of the CMO, albeit as set out in a media release. The March PHO was succeeded by the June PHO, which operated from 23 June 2020 (with an anticipated cessation on 21 September 2020). There was no evidence of any change in the associated advice from the CMO on the matter of contraindications in the time following the Media Release to the date the applicant was dismissed.

[63] Given my acceptance of Mr Sierp’s reliance on the CMO Advice as being objectively reasonable, I find there was a valid capacity-related reason for the dismissal given the applicant chose not to have an up-to-date flu shot in 2020. The respondent determined, appropriately I consider, not to allow the applicant to enter Imlay House to work without an up-to-date flu shot. As I found earlier, if the applicant could not enter Imlay House, she could not perform the inherent requirements of her job.

[64] Although the submissions for the applicant proceeded, in part, to suggest the applicant’s dismissal may have involved a contention about serious misconduct, it is unnecessary to consider those submissions. No aspect of the respondent’s case contended the applicant had misconducted herself or had been dismissed for misconduct, let alone serious misconduct, in not having a flu shot.”

Kimber v Sapphire Coast Community Aged Care Ltd (2021) FWC 1818 delivered 29 April 2021 per McKenna C