Introduction
Many employers are addressing the questions of what their organisations should be doing to manage the risk of Covid-19 and in particular, the Delta Covid-19 variant that presents risks not only to their employees but to their businesses, their customers and the public at large.
The topic of mandatory workplace vaccination is understandably generating much interest and debate.
The Australian federal government’s current broad policy appears to be that it will not impose an obligation on all Australians to be vaccinated. However, we appreciate that this is an unhelpful statement in the context of workplace Covid vaccination with many employees due to return to work from 11 October 2021.
The question of whether it is reasonable to direct an employee to be vaccinated will largely depend on whether vaccination is a necessary control measure to address the risk of Covid in the particular workplace.
Specifically in NSW, there are two scenarios where workers are required to be vaccinated in order to come to work:
- COVID-19 vaccination is mandatory for residential aged care workers; and
- From 8 November 2021, all NSW school and preschool staff will be required to have received two doses of the COVID-19 vaccine Broadly speaking, employers have a right to direct employees to be vaccinated against Covid-19, where it is lawful and reasonable to do so.
Is there a precedent that can be followed?
The concept of mandatory vaccination in the workplace is not a new concept and has applied to various workplaces in relation to the mandatory vaccination for influenza, particularly relating to businesses involving the treatment of sick, elderly or vulnerable people.
Two Fair Work Commission unfair dismissal cases decided in April 2021 relating to the refusals by employees to have flu vaccinations offer some insights into the approach that may be adopted by the Fair Work Commission and other Courts or Tribunals regarding the issue of mandatory workplace Covid vaccination. The cases in question are those of Ms Bou-Jamie Barba v The Goodstart Early Learning [2021] FWC2156 and Jennifer Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWC1818.
Both cases involved the dismissal of employees who had refused flu vaccinations and both dismissals were found to be fair. However, the particular circumstances of both the employer and employee scenarios in the above cases as well as any applicable government health orders or guidance must be considered and extreme caution ought to be exercised before attempting to use these cases as a blanket authority that employers may dismiss employees for refusing to be vaccinated.
Can an employer terminate an employee’s employment if the employee refuses a lawful and reasonable direction to be vaccinated?
A critical issue to consider in dealing with this question is whether the employer has afforded the employee procedural fairness in affecting a disciplinary process for refusing to follow a lawful direction.
In the context of mandatory vaccinations, procedural fairness to employees may include:
giving the employee the opportunity and time to obtain the vaccination or to give the employee the opportunity and time to obtain any medical evidence to support the employee’s objection to having the vaccination; and
considering whether there are other methods that may be available to enable the employee to perform the work without having to have the vaccination.
Takeaways
An employer does not need to wait for a government mandate in order to seek to implement mandatory Covid workplace vaccination. That said, a public health order or a government mandate in place will substantially strengthen the employer’s argument that the employer’s direction to the employee to be vaccinated is lawful and reasonable.
An employee direction must be lawful, in other words it must be consistent with any employment contract or all industrial agreement and with any Commonwealth, state and territory law that applies.
It may not be reasonable to assume that Fair Work Commission may adopt a similar approach in relation to a direction to take a Covid-19 vaccine, but employers are still required to accord employees an appropriate level of procedural fairness before treating their employee’s refusal to be vaccinated as a ground for termination of employment.
Employers that are not in the medical, aged care or school education environment need to carefully consider the risk profile of their workplaces and whether that justifies a reasonable and lawful direction to the employees to obtain a Covid vaccination.
It is likely that the risk assessment of the workplace will confirm whether it is reasonable to impose mandatory vaccinations in that workplace.
According to medical advice, people who are vaccinated can still contract Covid-19 and therefore transmit the virus to others. Thus, even the employees who are fully vaccinated still have an interest whether their co-workers are vaccinated or not.
If you would like further information or to discuss a specific matter, please contact us on (02) 9212 1099 or info@dls-lawyers.com.
If you would like further information or to discuss a specific matter, please call us on 61 2 9212 1099 or email info@dls-lawyers.com.
