Dismissal of non-vaccinated aged care employee upheld

Dismissal of non-vaccinated aged care employee upheld

The Fair Work Commission has upheld the termination of an aged care employee who refused to be vaccinated for COVID-19, despite repeated requests to do so.

The employee `AJS’ was employed by Calvary Retirement Communities Limited (Calvary) as a part-time Care Service Employee at the St Joseph’s Retirement Community (St Joseph’s), a residential aged care facility operated by Calvary in Sandgate, New South Wales.

AJS was dismissed because she could not comply with Calvary’s requirement that she provide proof of vaccination against the COVID-19 virus.

As a Care Service Employee, her primary function was to provide direct personal care assistance to aged care residents at St Joseph’s. The majority of residents at the facility are deemed high care residents, with 126 residents aged between 61 to 101 years old and the average age of residents being 84.

On 26 August 2021, the NSW government issued a Public Health Order that all employees of aged care facilities had to have received at least one COVID inoculation by 17 September 2021, unless the employee is unable to be vaccinated and presents a certificate from a medical practitioner specifying the medical contraindication that makes the person unable to be vaccinated.

In the period leading up to the new requirements becoming effective, Calvary communicated in writing with all employees, including AJS. In one such letter, employees were provided with a Vaccine Exemption Request form highlighting their ability to seek an exemption due to medical contraindications or due to their conscientious objections.

Despite several requests, AJS did not provide Calvary with any evidence that she had received one or more doses of a COVID-19 vaccination or any evidence to support the existence of a medical contraindication. Instead, she wrote to Calvary requesting proof that the requirements were legal and claimed that the request for medical information was in breach of her individual right to privacy.

After several further exchanges of correspondence, she was removed from the roster in early September and then sent a termination letter dated 15 September 2021.

In dismissing the application, Deputy President Tony Saunders determined that Calvary had acted at all times towards AJS in a manner that was entirely consistent with the requirements of the Public Health Order. As he noted,

“Indeed, if Calvary had permitted (AJS) to enter her workplace after 9 am on 17 September 2021, it would have been in breach of the Public Health Order, and its accreditation as an aged care provider may have been put at risk. For all these reasons, Calvary had a sound, defensible and well-founded reason to terminate (AJS’s) employment”.

The Deputy President also noted that Calvary afforded AJS procedural fairness during the events that led to her dismissal. He acknowledged that Calvary had considered the possibility of alternate work for her, but that was not a viable alternative due to the scope of the Public Health Order.

AJS v Calvary Health Care T/A Little Company of Mary Health Care Limited (U2021/8839) 20 January 2022

For questions about the pandemic, mandatory inoculations, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 925 529 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

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