Briefing note: To Vax or Sack?
Anti-vaxers and the vax-reluctant at work.
Like a slowly retracting syringe, Australia’s legal decision makers have filled a vacuum left by the absence of a broad Government requirement about compulsory vaccinations at work, rest or play. In doing so the Fair Work Commission (The FWC) and the NSW Supreme Court have answered some questions and left some more important ones unanswered about an employee’s requirement to get vaccinated- or get sacked for not doing so. For employers, the not terribly useful but accurate message from the Fair Work Ombudsman on mandating vaccinations is to “exercise caution” as the legality of vaccination mandates punishable by termination depends on the existence of a Public Health Order, provable adverse health impacts of vaccine and the circumstances of the industry and workplace.
There is a recurring theme here, just like the Government left decisions up to citizens about whether or not they were essential workers, or whether or not to send children to school or to trade face to face from their shops in the middle of a pandemic – so too is the “exercise of caution” an open-to-interpretation concept. When over a quarter of all people aged 16 years and over in Australia or about 4 million of us overall still remain completely unvaccinated it seems the Government’s portrayal of a small number of unvaccinated people is more wishful thinking spin than scientific substance.
THE FAIR WORK COMMISSION WRESTLES
A recent case of the Fair Work Commission known as “Kimber” has been newsworthy because Deputy President Dean found an employee’s sacking for refusing to get vaccinated was an unfair dismissal and a transgression of the holiest of standards by being: “UnAustralian”. For instance, the Deputy President said:
“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.
MINORITY HEADLINES, MAJORITY REASONING
While the Deputy President’s minority decision may attract headlines, the decision of the majority comprising the two other Commissioners (Vice President Hatcher and Commissioner Riordan) sheds light on the Australian national employment tribunal’s approach to employees that postpone or refuse to take a Covid-19 vaccine and in doing so poured acid on the anti-vaxxer camp. As the majority decision declared:
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.
Kimber stands for the FWC’s acknowledgement that an employer can rely on the long established right to give ‘lawful and reasonable’ directions to employees to, in this case, get vaccinated. The rubber hits the road because if that direction is disobeyed without a very good reason the employee can then get the sack that won’t amount to an unfair dismissal.
While each case will turn on its own facts and the employer will need to establish it was “lawful and reasonable” to give a vaccination direction to staff and it’s not a unanimous decision, it’s still a “pretty good” and fresh indicator of how both the “vax-reluctant” and the outright “anti-vaxers” will be treated by Courts and Tribunals in our COVID-19 world. But here is where the caution lives:
1. An employer can only insist on a vaccination (i.e refusal is punishable by termination) if it can be established it is “critical” or better still legally required to have its staff vaccinated (by way of Health order or similar), and
2. The employee cannot establish compelling medical evidence of an adverse medical impact of doing so,
3. Then if the employee still refuses to be vaxed, they can be sacked and the employer will probably (recall it was a 2-1 decision) to be found to be within its legal rights of terminating an employee.
So the questions of an employer’s right to sack:
· in the absence of a Public Health Order or
· where an employee presents compelling evidence of an adverse medical reaction to the vaccine or
· where the public health transmission risks are not clear (say for those that work largely alone),
all remain unanswered for the time being.
Ms Kimber was most recently employed as a receptionist at Imlay House (an Aged Care facility run by Sapphire Coast Community Aged Care) for about 7 years in total. In 2015 and 2016 she had a flu shot that was provided by the employer. Ms Kimber claimed but did not provide any persuasive independent medical evidence in support of her complaint that the flu vaccination in 2016 caused a “severe allergic reaction” including “major and debilitating skin inflammation” with “internal organs also affected” lasting “for many months”. Importantly, nor did Ms Kimber take any time off work or report the injury at the time of the adverse health impact ocurring. Ms Kimber then refused to take the influenza vaccinations in 2017, 2018 and 2019, and the management of Sapphire apparently took no issue with it. She was dismissed on 6 July 2020 for this time again refusing to be vaccinated against influenza in the context of COVID-19 and a relevant Public Health Order requiring vaccination by aged care staff.
Ms Kimber provided an initial letter of support from a Chinese medicine practitioner and then a further letter of support from a general practitioner (Dr Mackay) along with a completed IVCM form (a required vaccine exemption form).
After her dismissal on 6 July 2020 she filed an application for unfair dismissal.
MEDICAL EVIDENCE ASSESSED
Despite providing a letter in support from a General Practitioner and that doctor filling out an approved form that would (perhaps at a stretch) constitute a lawful exception to being required to taking the vaccine consistent with the Public Health Order, the appellant’s evidence regarding her adverse health impacts she experienced from taking the influenza vaccine were not persuasive to the majority of the FWC. Unusually, the Fair Work Commission not only peered behind the doctor’s evidence but also assessed it:
‘It plainly is not the case that the mere completion of the approved form on the basis of the identification of an alleged medical condition or episode that is not, in fact, a medical contraindication is sufficient to satisfy the [lawful exemption].’
“taking Ms Kimber’s assertions about her skin condition at their highest, it did not constitute a medical contraindication.”
Once the medical evidence was dealt with by the Fair Work Commission, the decision followed the normal path of establishing a valid reason to dismiss (grounded in a lawful and reasonable direction- that was in turn found in the Public Health Order), and procedural fairness being applied by the employer along the way.
Ultimately the appeal bench found:
“In circumstances where Ms Kimber was given ample opportunity by her employer to get vaccinated or demonstrate that she had a medical contraindication, no other consideration could operate to render her dismissal unfair.”
The majority decision was not made in a vacuum either:
The fact that Ms Kimber is unprepared, in the context of the current COVID-19 pandemic and the requirement for her to be vaccinated in order to work in residential aged care, to indicate a willingness to take a vaccine that is different to the influenza vaccine supports the inference that she holds a general anti-vaccination position.
A case with different facts may produce a different result. It is unknown how the Commission or the Courts would treat a case where:
· There is not a clear public health order requiring vaccination (Yes, Public Health Orders are still not National or even uniform across different industries)
· An employee could persuade the Tribunal or Court that they would experience a serious adverse re-action from the vaccine.
In the absence of Government action, this decision is the best employees and their unions and employers have to deal with mandatory vaccination and the consequences of refusal.
For completeness, the Courts have also assessed the legality of the Minister’s Public Health Order making power.
THE SUPREME COURT RULES
The Supreme Court also upheld the validity of orders requiring vaccination to work. In Kassam v Hazzard and Henry v Hazzard. Both plaintiffs refused to be vaccinated and claimed that various Public Health Orders requiring vaccination were invalid. The Court knocked back the claim with gusto. First, the Court decided that the Minister’s power to make public health Orders and the effectiveness of vaccines are not matters for the court but “are all matters of merits, policy and fact for the [Minister]”. Consequentially, the judgement was limited to determining the legal validity of the Orders in question. Unsurprisingly the Court dismissed both proceedings as the Orders were among other things:
· A genuine exercise of the Minister’s Power, and;
· The orders were reasonable and necessary to deal with the public health issue;
Electorally it comes as no surprise that the Government is none too keen to pick a fight with Trumpy anti- vaxers and the vax- reluctant. Governments fear losing the votes of people who are unlikely to be vaccinated at any point. However, the Government’s failure to work with the States (if constitutional power is in question) to provide a nationwide Public Health Order requiring vaccination (just like they have with international arrivals to Australia) is ultimately a cop-out that risks death and serious injury to the public. Vaccinated people can still die from Covid, so too the vax-unable cohort would be best protected by maximum vaccination coverage. Until then, people will need to look to courts and tribunals for guidance about dealing with the unvaxed at work and take their chances with increasingly optional BYO face masks. This creates a muddied hotchpotch of rights and obligations and an unjustifiable health risk that no syringe can fix.