Vaccinations and the workplace

In a particularly interesting decision in an unfair dismissal case, a member of the Fair Work Commission has held that a decision by an employer to refuse to allocate work to an employee who refused to accept an influenza vaccination constituted the termination of the employee’s employment and thus she can now proceed to have the merits of the case determined by the Commission. The employer manages inter alia aged care facilities and also provides care visits to aged persons in their own residences, which the applicant undertook.

“Consideration

Ms Glover has been a long-standing employee of the Respondent, providing in-home care to the Respondent’s clients. For at least the last decade Ms Glover has been permitted to decline an influenza vaccination on the basis that she has declared that she is allergic to the vaccination.

Ms Glover has not provided any medical evidence that she is allergic to the vaccination; she simply asserts it based on her experience as a seven year old girl when vaccinated in the Philippines. There is no reason to disbelieve Ms Glover relevant to her experience at that time. It is Ms Glover’s honest belief that she is allergic to the vaccination and therefore she should not receive a vaccination.

The Respondent has, for at least a decade, permitted Ms Glover to nominate her allergy and therefore decline to receive a vaccination. In doing so, it has permitted her to be unvaccinated and continue to work with its clients in their homes.

The Respondent has now changed its policy and it requires all of its employees, whether working in aged care residential facilities or providing in-home care to be vaccinated. It is now a mandatory vaccination.

In doing so, and enforcing its requirement that unvaccinated employees cannot be permitted to be rostered to work, the Respondent’s decision has resulted in Ms Glover not being permitted to perform any work. She was permitted to utilise all of her paid leave, including personal leave and then annual and long service leave. Once that leave was exhausted, the Respondent explained to Ms Glover that she would not be rostered to work, and it considered that she was then on unpaid leave.

The period of unpaid leave that the Respondent states that Ms Glover will be on is an indefinite period. The Respondent was invited by me to provide to her an undertaking that following a period of three months of unpaid leave it might take some action to inform her that it is considering dismissing her if she is unable to be vaccinated. The Respondent declined to do so, simply stating that it would review her employment status in January 2021.

This is an entirely unsatisfactory proposition; Ms Glover could be held in limbo for months and years while the Respondent reviewed its position. The effluxion of time would have little impact on the Respondent, yet if Ms Glover could not demonstrate that she has been dismissed until such time as the Respondent declares for itself that she has been dismissed, the effects on her are enormous.

She is not rostered for work and will not be rostered for work until such time as she becomes vaccinated. She refuses to become vaccinated on the basis of medical views held by her that to do so would cause risk to her life. She has not obtained any recent medical opinions that her beliefs are medically supported.

In my view, Ms Glover’s employment is not determined based on when the Respondent’s CEO might or might not inform her that she has been dismissed. She is not required to await his determination on this issue.

An employee is dismissed if the actions of the employer result directly or consequentially in termination of employment and the employee does not voluntary leave the employment relationship. 1

The actions of the Respondent in refusing to roster Ms Glover beyond 4 October 2020 when her paid leave was exhausted, and its maintenance of that position mean that Ms Glover is without work now and for the predicted future. She cannot change that, and the Respondent has indicated that it will not alter its course.

I consider that the effects of the Respondent’s decision is that Ms Glover’s employment has come to an end, and it did so on 4 October 2020 when it refused to roster her for work when she is willing and able to work. The dismissal did not occur earlier as Ms Glover was authorised to take paid personal leave, annual leave and long service leave.

It is clear that Ms Glover no longer can meet what the Respondent states is the inherent requirements of the position. She refuses to do, and the Respondent refuses to relax them for her therefore the impasse has been met due to the actions of the Respondent and the employment has come to an end.

Conclusion

Accordingly, I find that the employment came to an end on 4 October 2020 and Ms Glover has capacity to pursue her claim of unfair dismissal.

The jurisdictional objection is dismissed, and the matter will be programmed for hearing to determine the merit arguments.”

Glover v Ozcare (2021) FWC 231 delivered 18 January 2021 per Hunt C