Per Hunter and New England Area Health Service v A [2009] NSWSC 761, an adult with full capacity may refuse medical treatment because they have the right to self-autonomy at common law. However, an employer can direct an employee to get vaccinated if it is considered a lawful and reasonable direction.
Currently, all authorised workers, including occupations in health care and construction, have been mandated to be vaccinated against COVID-19 through a public health direction. In such industries, it is not the Employer’s decision to mandate vaccinations and if an employee refuses to be vaccinated, they cannot attend work. Whilst this mandate is in place, employees may be dismissed or stood down as they cannot fulfil their duties if they are not vaccinated. Even if your occupation does not currently have a government vaccination mandate, your employer may decide to implement a vaccination requirement to attend work. Whether you are required to follow this direction and whether failure to do so would constitute misconduct depends on whether such a direction is lawful and reasonable.
What is a Lawful and Reasonable Direction?
A lawful direction must be within the employee’s scope of work and cannot constitute an illegal act (Grant v BHP Coal Pty Ltd (No 2) [2015] FCA 1374), but does not need to be the most relevant or best action at the time to be reasonable (Briggs v AWH (2013) IR 231 15). The court would examine relevant considerations to determine what is reasonable in the circumstances and may look at the employment agreement, the nature of employment, the employee’s position within the business and what is customary within the industry. In the context of COVID-19, courts may also consider other relevant factors. For example, whether the individual is considered an essential worker, whether they have contact with vulnerable populations, and the health of the individual.
Recent Decisions
Recently, the Full Bench of the Fair Work Commission in Jennifer Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWCFB 6015 upheld the finding that dismissing an aged care receptionist who refused to obtain the Influenza vaccine was not unfair. At the time of her dismissal, an order from the NSW Minister for Health directed that aged care workers may not be on the premises unless they had received an up-to-date vaccination against influenza. In this case, the evidence demonstrated of facial swelling and a rash that the appellant had developed during her last influenza vaccine years ago was not a medical condition that could satisfy the medical exemption clause from the Health Order. Though no direction to be vaccinated was given by the employer, since it was a government mandate, the Commission held that such a direction would have been lawful and reasonable regardless. Therefore the dismissal was not unfair and leave for appeal was refused.
During the appeal, the Commonwealth Government mandated that aged care workers were required to receive a COVID-19 vaccination which the appellant was unprepared to receive at the time. The Full Bench stated at paragraph 58 “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….[pointing] to the lack of utility in granting permission to appeal, since there could be no possibility of granting Ms Kimber’s preferred remedy of reinstatement absent an advance commitment from her to take the COVID-19 vaccine”.
Since the appeal was refused, it may be inferable that not obtaining a COVID-19 vaccination when mandated by the government will constitute a valid reason for dismissal. Though procedural fairness would still be required, the extent of compensation available would be reduced by the absence of an invalid reason for dismissal should a claim be successful. While the decision supports employers in high-risk industries such as aged care in requiring their employees to be vaccinated, it is not a blanket rule, so seeking advice is recommended.