EMPLOYEE WHO REFUSED TO GET THE JAB HAS UNFAIR DISMISSAL CLAIM DISMISSED

EMPLOYEE WHO REFUSED TO GET THE JAB HAS UNFAIR DISMISSAL CLAIM DISMISSED

CASE STUDYMaria Corazon Glover v Ozcare [2021] FWC 2989

Background of case

Ms. Glover was a care assistant employed by Ozcare. Her role required her to work closely with elderly clients.
In April 2020, Ozcare’s workplace employee immunisation policy was amended to mandate that employees receive the influenza vaccination. These amendments were in response to the Aged Care Directions issued by Queensland’s Chief Health Officer (the Aged Care Directions).


Ms. Glover refused to undertake the vaccine because she had experienced an anaphylactic reaction to the influenza vaccination as a child. Her refusal meant that she was unable to work any further shifts after April 2020 pursuant to Ozcare’s amended immunisation policy.


Ms. Glover commenced proceedings in the Fair Work Commission (FWC) claiming that she had been unfairly dismissed.

FWC Decision

The FWC concluded that Ms. Glover’s dismissal was not unfair because Ozcare had a lawful and reasonable basis to mandate the vaccination for all client-facing employees.


In a high-risk environment where aged care clients would be particularly vulnerable to influenza, the FWC found that this was a reasonable direction issued to employees by Ozcare. The FWC further noted that the reasonableness of an employer’s direction should be assessed in light of the managerial prerogative of the business. In the context of the aged care industry, it is reasonable for an employer to safeguard its clients and employees against health risks such as influenza transmission.


Ms. Glover’s claim was therefore dismissed, and it was held to not be considered harsh or unfair as there had been a valid reason for the dismissal.


Key Takeaways

Although the test of what constitutes ‘lawfulness’ and ‘reasonableness’ was not determined by the Aged Care Directions in this case, the FWC suggested that workplace mandatory COVID-vaccinations due to government directions could be ‘lawful and reasonable’. This was especially in workplaces where there was a high risk of super spreading and interactions with vulnerable people.

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