An aged care worker sacked for refusing a flu jab has lost her unfair dismissal claim.
The Fair Work Commission described the nursing home’s vaccination requirement as “prudent and reasonable”.
It’s the second time the Commission has found an employer can force staff to be immunised against influenza.
Employment law experts say the decision will have have implications for the current COVID-19 vaccine rollout.
Aged care worker sacked for refusing flu jab
Jennifer Kimber worked as a receptionist at Imlay House aged care facility in Pambula, New South Wales.
In March 2020, the state government issued public health orders requiring aged care workers to have flu vaccinations.
Kimber refused, claiming she experienced an adverse reaction to a flu vaccine in 2016.
She produced a note from a Chinese medicine practitioner which said she preferred “to not have the flu vaccination”.
“I have prescribed her immune boosting herbs as well as antiviral herbs in a formula that has been being [sic] used in China in the prevention of Covid-19 and seasonal flues [sic].”
In April, the aged care facility stood Kimber down before sacking her in June for failing to fulfil the inherent requirements of her role.
‘Prudent and reasonable’
Commissioner Donna McKenna rejected Kimber’s unfair dismissal claim.
“If an employee makes a personal choice not to have a flu shot, then an employer which provides residential aged care services and which is subject to a [public health order] has its own obligations.
“I find that the respondent … acted in an objectively prudent and reasonable way in not permitting the applicant to work within Imlay House absent an up-to-date flu shot.”
Childcare worker loses unfair dismissal
Last week, the Fair Work Commission found another employer also had the right to sack a worker for refusing a flu jab.
A childcare worker refused the vaccine, claiming to have previously suffered an allergic reaction.
However, she was unable to provide medical records to support this claim.
Goodstart Learning Centres sacked the woman for a lack of capacity to fulfil the inherent requirements of the job.
But deputy president Nicholas Lake rejected this argument.
He found the woman could still perform the inherent requirements of the job of an Educator without a flu vaccine.
Instead, he found the requirement to be immunised represented a reasonable and lawful direction, and the worker’s refusal to follow that direction gave the employer a valid reason for dismissal.
Implications for COVID
Employment law expert Miles Heffernan says the Commission’s recent decisions will have implications for those who refuse a COVID vaccine.
“These decisions will give pause to anybody who is hesitant with a COVID vaccine.
“The indication from the Commission is that if the employer makes a policy that is well founded and rational, the employer will have to comply, unless they have a valid medical reason not to do so.”
Australia’s Covid-19 vaccination program is voluntary, although Scott Morrison has also said that national cabinet will determine “where if in any cases there is a requirement to have that vaccine”.
For example, a condition for travel and for frontline health and aged care workers.