Dismissal for refusing to provide vaccination status

In the recent decision of Aleisha Jean Shepheard v Calvary Health Care T/A Little Company Of Mary Health Care Limited [2022] FWC 92 delivered on 20 January 2022, the Fair Work Commission (FWC) upheld the dismissal of an employee who did not comply with COVID-19 proof of vaccination requirements at the residential aged care facility.

Despite numerous issues being put forward by the employee, including breach of privacy laws and raising conscientious objections, the FWC was satisfied that the dismissal was not harsh, unjust or unreasonable.

Background

Ms Shepheard was employed as a part-time Care Service Employee by Calvary Retirement Communities Limited (Calvary). Ms Shepheard’s main responsibility was to provide personal care assistance directly to age care residents at St Joseph’s Retirement Community.

The Public Health (COVID-19 Aged Care Facilities) Order 2021 (Public Health Order) issued on 26 August 2021 required all aged care facility workers to have received at least one dose of a COVID-19 vaccine by 17 September 2021, unless exempted due to a medical contraindication. This requirement imposed obligations on operators of age care facilities such as they must take all reasonable steps to ensure their workers comply with the Public Health Order, and provide vaccination evidence. Calvary also had a mandatory COVID-19 vaccination policy in place.

Ms Shepheard failed to provide Calvary with any evidence showing that she had received at least one dose of COVID-19 or that she was exempted due to a medical contraindication. Reasons for her refusal included:

• the Public Health Order was not legally binding, unlawful and invalid;
• the request for medical information was in breach of an individual’s right to privacy under the Privacy Act 1988 (Cth);
• concerns about the existence of any insurance cover in relation to risks associated with taking a COVID-19 vaccine;
• 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;
• the prohibition of force and coercion of medical service under the Constitution; and
• unlawful stand-downs.

After written exchanges, it was clear to Calvary that Ms Shepheard had no intention to obtain the COVID-19 vaccination or to provide relevant information to satisfy an exemption request. Accordingly, Calvary terminated Ms Shepheard’s employment on 15 September 2021.

Decision

The FWC found that Calvary’s decision to terminate Ms Shepheard’s employment was not unfair and dismissed her application. Reasons for the FWC’s decision included:

• the Public Health Order applied to Ms Shepheard and she did not comply;
• as Ms Shepheard was prohibited from entering the workplace from 17 September 2021, she would not be able to fulfil the requirements of her role at the time and in the foreseeable future;
• there were no alternative duties available for Ms Shepheard to undertake;
• if Calvary allowed Ms Shepheard to attend the workplace from 17 September 2021, it would be in breach of the Public Health Order and place its accreditation at risk; and
• there was no real utility in standing Ms Shepheard down for an indefinite period until the Public Health Order expired, as this was uncertain.

Further, following the case of Kassam v Hazzard; Henry v Hazzard [2021] NSWCA, the FWC rejected the argument that the Public Health Order was invalid because it violated an individual’s right to privacy and breached the Privacy Act 1988 (Cth). Calvary was required and authorised to collect personal medical information from its workers under an Act of the Commonwealth, State or Territory (being an exception to Australian Privacy Principle 3).

Interestingly, if Calvary had failed to obtain Ms Shepheard’s consent in collecting the personal information in accordance with Australian Privacy Principle 3, on balance, the FWC would have still found that Ms Shepheard’s dismissal was not harsh, unjust or unreasonable.

The FWC also noted that 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 invalid and unlawful.

Lavan comment

While the decision relates to a public health order being in place, it provides some certainty to employers that if they follow a process involving procedural fairness, show cause, and the opportunity to respond, they will be in a good position to defend any unfair dismissal claim. Further, even in the absence of a public health order, the employer’s duty to provide a safe workplace for its employees and occupants may, depending on the circumstances, warrant dismissal as a disciplinary option.

If you would like to discuss issues with vaccinations in your workplace, please do not hesitate to contact Lavan’s Employment and Safety team.