What are the current views of the FWC in relation to the flu vaccine. Do the mandates extend beyond COVID-19? - Part 3
This is the thurd and final part in our 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.
In Part 2 of this aricle series we discussed which way the pendulum was swinging.
There has been commentary as to whether we will see a broad-based approach in relation to the implementation of a mandatory vaccination regime for other vaccines (flu) across all workplaces.
It is important to remember that one of the first decisions to address the complications of enforcing the vaccination Orders was in relation to the flu vaccine.
In Jennifer Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWCFB 6015, the FWC confirmed the view that the effect of Public Health Orders (PHOs) may be that an employee is not able to perform the inherent requirements of their role in light of limited exemptions under PHOs and confirms that employers can be justified in terminating employment in such circumstances.
A very recent FWC decision in the matter of Thomas Tew (applicant) v The Bethanie Group Inc. T/A Bethanie Aged Care [2022] (employer) FWC 96 before Commissioner Williams has provided further insight.
Background
The applicant commenced employment with Bethanie Aged Care as a maintenance worker (electrician) in 2018.
The applicant alleged that in May 2021 he was instructed to receive the flu vaccination. He alleged that he was not given any alternative options and believed that if he did not receive the vaccination, he would lose his job.
The applicant claimed that he did some research and decided to use a template of a Notice of Conditional Acceptance (the First Notice) to send to his employer to ask questions.
The notice he provided asked a series of questions of his employer that were not limited to issues of the constitutionality of the vaccines as well as his rights as per international human rights covenants.
The most outlandish requests however were the applicant’s request for damages in the event of injury or illness. The key points of his argument to his employer is listed below:
You agree you will accept full responsibility for any injury caused to me by the wearing of a mask or vaccination, such injury can be confirmed by any member of my family, friends and neighbours if a doctor is not willing to make a claim of injury.
You agree you will pay compensation of ten thousand and dollars ($10,000) for any adverse event which can in anyway be reasonably assumed to be a result of wearing a mask or from any vaccination enforced by you.
You agree you will pay compensation of twenty-five million dollars ($25,000,000) for an adverse event from wearing a mask or from any vaccination enforced by you which results in any Health Impact Events* lasting longer than 24 hours.
You agree you will pay compensation of fifty million dollars ($50,000,000) for any adverse event or Health Impact Events resulting in death, payable to my immediate family members.
On 22 June 2021, a meeting was held between the parties. At the meeting, Bethanie Aged Care informed the applicant that the direction to vaccinate or provide evidence of vaccination was lawful because it aligned with the State Government’s directions for visitors to aged care facilities. And separately it was reasonable because Bethanie Aged Care staff including the applicant would normally interact with one or more residents in the aged care facilities. The applicant’s employment was then terminated.
The applicant then lodged a claim for unfair dismissal in the FWC.
The applicant argued among a number of issues that:
Bethanie Aged Care failed in their duty to relocate him to other available locations or to provide alternative work.
Bethanie Aged Care have failed to prove that they have given the Applicant a lawful direction and have not proved to have a compelling reason to justify mandatory vaccination is a requirement to carry out duties in the workplace.
The FWC found as follows:
That most of the electrical maintenance work is undertaken at Bethanie Aged Care’s residential aged care facilities. As a result, it was not possible to the applicant in employment as an electrician without artificially creating a position which would result in unnecessary inefficiency and expense being incurred by Bethanie Aged Care.
There is no reasonable basis to find that Bethanie Aged Care should have incurred such ongoing inefficiencies and additional costs in order to accommodate the applicant’s personal preference.
The combination of the Chief Health Officers Direction and the applicant not receiving an up to date influenza vaccination meant that he was not able to perform the inherent requirements of his job which also was a valid reason for his dismissal, related to his capacity.
Takeaway points
This decision represents another win for employers.
The key takeaway is that whilst employers are required and encouraged to consider the views of their employees, they are not required to engineer jobs that do not exist on the grounds that an employee merely does not want to obtain a vaccine.
Further, conscientious objections will not succeed as a defence to refusing the vaccine or any vaccine for that matter.
Jim Babalis
Special Counsel
T 03 5225 5205
E jbabalis@ha.legal
Jim Rutherford
Principal Lawyer
T 03 5226 8579
E: jrutherford@ha.legal
