Which way is the pendulum swinging? - Part 2
This is part two in a three-part article series which examines recent approaches that the Fair Work Commission (FWC) has taken in relation to vaccine mandates by employers.
In Part 1 of this article series we discussed recent developments in the are of mandatory vaccines.
What has been the view of the Fair Work Commission (FWC)? Is the trend of enforcing the mandates in favour of employers?
A very recent decision from the FWC confirms the difficulties for employees relying on the theoretical basis of conscientious objections when refusing to comply with obligations imposed by public health directions or refuse to receive vaccines as required as a condition of being able to attend their workplaces.
The recent FWC decision of Aleisha Jean Shepheard v Calvary Health Care T/A Little Company of Mary Health Care Limited [2022] FWC 92 highlights the view that the Commission is taking. In this matter, the FWC found there was no utility for the Employer to agree to the Employee's request to be stood down without pay indefinitely (until the Public Health Order (PHO) requiring the vaccination, expired), because of its health and safety obligations to its staff and aged care residents which applied in any event.
The matter was heard by DP Saunders.
Background of decision
Ms. Aleisha Shepheard (applicant) was employed by Calvary Retirement Communities Limited (Calvary/employer) as a part-time Care Service Employee (direct care) at the St Joseph’s Retirement Community (St Joseph’s), a residential aged care facility operated by Calvary in Sandgate, New South Wales.
The applicant was dismissed because she did not comply with the requirement that she provide proof of vaccination against the COVID-19 virus. The applicant contended that her dismissal was harsh, unjust and unreasonable.
On 26 August 2021, the NSW Government issued a PHO that would take effect from 17 September 2021.
The effect of the PHO was that an employee of an operator of an aged care facility must not enter or remain on the premises of an aged care facility unless the employee had received at least one dose of a COVID-19 vaccine.
It must also be noted that requirements of the PHO were also reflected in a Residential Aged Care – Mandatory COVID-19 Vaccination Policy, which Calvary implemented on 22 July 2021. The employer also provided to the applicant an exemption form that listed the criteria for an exemption to apply.
Calvary’s COVID-19 Vaccine Exemption Assessment form sets out criteria for Calvary to assess the risks associated with an employee not being vaccinated against COVID-19. The form requires Calvary to consider “whether or not it is possible to redeploy the employee to an alternate facility outside of their existing place of work (should a position exist)”.
The applicant did not provide Calvary with any evidence that she had received one or more doses of a COVID-19 vaccine or any evidence to support the existence of a medical contraindication. Nor did the applicant complete Calvary’s COVID-19 Vaccine Exemption Request form. Instead, the applicant raised several concerns, in writing, with Calvary.
The concerns were as follows:
asking Calvary to “provide a copy of the law that evidences Covid 19 Vaccines are mandatory”;
asserting that Calvary’s request for medical information from employees was “in breach of an individual’s right to privacy under the Privacy Act 1988”,
raising concerns about the existence of any insurance cover in relation to risks associated with taking a COVID-19 vaccine,
raising issues associated with the Commonwealth Constitution, the Biosecurity Act 2015, Article 6 of the UNESCO statement on Bioethics and Human Rights, Article 1 of the Nuremburg Code, and the Australian Government’s Immunisation Handbook, and
asking questions about a range of matters, including whether Calvary had sought advice “regarding the risk to anyone subject to a mandated Covid-19 vaccine, and that the Public Health Order directive is lawful”.
Calvary responded to the applicant and pointed out the risks associated with COVID-19 and confirmed that it would continue to adhere to PHOs. Calvary also explained to the applicant that she could make an exemption request and informed her that it was “committed not to misuse the information [provided by an employee] for any purpose other than to meet our obligations under work health and safety legislation”. As to the concerns raised by the applicant relating to issues such as the constitutionality of mandatory COVID-19 vaccination and alleged breaches of privacy, Calvary responded as follows:
“To the extent those views are right or wrong are irrelevant for these purposes. To be clear, Calvary is not suggesting that you must have a COVID-19 vaccination, just that you require COVID-19 vaccination to be an employee of Calvary.
The choice as to whether you obtain a COVID-19 vaccination remains yours.”
Over the course of several weeks, correspondences were exchanged between the parties on the issue of the vaccination requirements and the challenges posed with the conduct and views of the applicant.
Finally, a letter of termination of employment dated 15 September 2021 was sent by Calvary to the applicant. The letter set out the relevant background and concluded as follows:
“Having regard to the above Calvary gives formal notice that your employment is terminated effective 15 September 2021 on the basis that it is clear you have no intention to obtain the COVID-19 vaccination and you will be prohibited to work under the Public Health Order.
Your notice period will be paid in lieu and all unpaid wages and applicable accrued entitlements shall be paid to you in due course.”
The applicant then challenged this termination by lodging an unfair dismissal application.
Key arguments of the applicant
That Calvary could have “stood her down” on unpaid leave until the PHO expired (first issue).
That she did not want to disclose private medical information to Calvary and the requirement that she do so was, a breach of the Privacy Act (second issue).
What did the FWC say about the applicant’s contentions and arguments?
Unsurprisingly, the FWC was not impressed.
On the first issue around a stand down, DP Saunders stated as follows:
“I do not consider that there would have been any real utility in standing Ms. Shepheard down for an indefinite period in circumstances where even the absence of a public health order would not have altered Calvary’s obligation to take reasonable steps to ensure the health and safety of its employees, as well as the vulnerable residents of St Joseph’s. Calvary’s mandatory vaccination policy has been introduced to address those risks. I do not consider that there was, as of 15 September 2021, any realistic likelihood that Calvary would change its policy in the foreseeable future to no longer require its care staff to be vaccinated against COVID-19”.
On the second issue around privacy, the FWC rejected the argument. The FWC was of the view that the PHO required that the applicant be vaccinated against COVID-19 for her to enter her place of work from the date of effect of the PHO.
In order to be exempt, then she had to present “to the operator of the residential aged care facility a certificate, in the form approved by the Chief Health Officer, issued by a medical practitioner, specifying the medical contraindication that makes the person unable to be vaccinated”. Accordingly, the disclosure of medical information to Calvary was required by the PHO, in circumstances where an exemption was sought. Calvary had no option but to comply.
It follows that when Calvary invited the applicant to provide relevant information to support her claim and she elected not to provide any such information, the applicant had no capacity to undertake her role as a Care Support Employee in an aged care facility because she was prohibited from entering such a facility. In the absence of any suitable alternative duties, Calvary had a sound, defensible and well-founded reason for her dismissal related to her capacity.
The FWC found against the applicant and stated as follows:
"There was no requirement for Calvary to go further and respond to every reason why Ms. Shepheard was contending that the Public Health Order was, in her opinion, invalid and unlawful."
Takeaway points
The key takeaway is that employers should follow all the requirements of the PHO and provide employees with procedural fairness in order to defend an unfair dismissal claim. It also shows an unwillingness of the FWC to consider theoretical viewpoints about vaccine refusal (i.e. conscientious objectors) that do not fall within the prescribed exemptions.
For further information please contact:
Jim Babalis
Special Counsel
T 03 5225 5205
E jbabalis@ha.legal
Jim Rutherford
Principal Lawyer
T 03 5226 8579
E: jrutherford@ha.legal
