Mandatory Vaccine test case

In a case which is likely to have significant ramifications across the workforce the Fair Work Commission (FWC) has rejected Ozcare’s (the Respondent) jurisdictional argument that the Applicant had not been dismissed rather that they had just been placed on unpaid leave and therefore clearing the way for the Applicant to pursue her unfair dismissal.

On 9 October 2020, the Applicant made an unfair dismissal application to the FWC alleging she had been dismissed from Ozcare (the employer) unfairly under s.394 of the Fair Work Act 2009 (the FW Act).

In response to the application the Respondent raised a jurisdictional objection, contending that the Applicant had not been dismissed from her employment rather that the Applicant was absent from work on unpaid leave.

Commissioner Hunt heard evidence that the Applicant commenced employment with Ozcare on 14 December 2009 as a Care Assistant. The role entailed the Applicant visiting people in their homes. The Applicant gave evidence that as a child she had received a vaccination for influenza and had an adverse reaction, suffering anaphylaxis immediately after receiving the vaccine.

Each year of the Applicant`s employment the Respondent had an Influenza Vaccine program and each year the Applicant has completed the Ozcare Employee Influenza Vaccination Declination Form stating that she was declining the vaccination due to the allergies stated. The form was submitted annually to Ozcare and the Applicant had been permitted to continue in her role.

On 8 April 2020 the Respondent issued the Applicant with a letter that stated the Influenza vaccination was now compulsory, and that the policy had been updated to reflect that. The Applicant was directed to have the Influenza vaccination as soon as possible. The Applicant continued to refuse the vaccination on the same grounds that she had indicated each year during the Influenza vaccination program. Due to the higher risks associated with influenza and COVID, the Respondent made having the vaccination an inherent requirement of her position.

After a number of email exchanges the Respondent notified the Applicant that it could no longer roster her for work because she had refused to have the vaccination. At the same time the Applicant was advised that she was permitted to utilise all her paid leave, including personal leave and then annual and long service leave.
Once that leave was exhausted, the Respondent explained to the Applicant that she would not be rostered to work, and it considered that she was then on unpaid leave.

Commissioner Hunt found that the Respondent’s decision to keep the Applicant on unpaid leave was an ‘entirely unsatisfactory proposition’ and that ‘the Applicant’s employment has come to an end, and it did so on 4 October 2020 when it refused to roster her for work when she was willing and able to work. The dismissal did not occur earlier as the Applicant was authorised to take paid personal leave, annual leave and long service leave.’

Having found that the Applicant had been dismissed a further hearing will consider whether the Applicant was unfairly dismissed.

The legal question to be addressed during this case is “was Ozcare’s decision to make the vaccination an inherent requirement of the Applicant’s role a lawful and reasonable one, having regard to the Applicants care responsibilities of vulnerable clients in their home? If so, was her refusal reasonable? If not, did her dismissal constitute an unfair dismissal?”

Ms Maria Corazon Glover v Ozcare [2021 FWC 231 (18 January 2021)

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