Termination for refusing flu jab upheld

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Termination for refusing flu jab upheld

The Fair Work Commission has rejected an unfair dismissal claim by an employee in an aged care facility who refused to have a mandatory influenza injection. The Commission determined that her refusal to have the injection resulted in the employee being unable to undertake the inherent requirements of her role and therefore provided a valid reason for her dismissal.

The employee had been engaged by a not-for-profit community aged care group in a receptionist administrative role as a permanent part-time employee working four days per week. She had been directly employed at the Imlay House facility since April 2013, with five years previous service at the same facility, engaged through a contracting agency.

Following the COVID-19 outbreak, the NSW government introduced stricter inoculation requirements for employees in aged care facilities concerning influenza injections.

The employer responded by advising all employees in writing that they would need to have the injection or not be permitted to attend for work. They were also advised that exemptions may be granted based upon “written evidence from your GP or specialist”. In previous years, they had offered free influenza injections to staff.

The employee voluntarily had influenza injections in April 2015 and April 2016. However, she claimed that following the second injection, she developed a severe skin inflammation that lasted for ten months. There was no evidence that she advised her employer of the condition or that she took sick leave absences as a result. She did not provide any definite medical evidence linking her condition to the injection. Indeed, at hearing, the employer provided expert evidence that it was improbable that her condition was linked to the injection (as she believed).

In April 2020, the employer became aware that several employees were refusing to have the injection. The employer wrote to the receptionist advising her that following her refusal, she would be stood down from her position. She did provide some documentation from her treating doctors; however, none of them directly linked her condition to the injection. Following a series of meetings and letters between the parties, she was terminated effective from 6 July 2020.

Commissioner Donna McKenna, in her decision, acknowledged the right of the employee to make a personal choice to refuse the injection.

However, in refusing the injection,

The applicant was unable to perform the inherent requirements of her job if she was not properly permitted to enter or remain at Imlay House absent having an up-to-date flu shot. That is, if the applicant could not enter Imlay House, she could not perform the (principally) receptionist role and other clerical inherent requirements of her position”.

Consequently, her application for unfair dismissal was dismissed.

JK v Sapphire Coastal Community Aged Care Ltd [2021] FWC 1818 (29 April 2021)

For queries about mandating medical inoculations or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 WAL LAW, 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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