Can I be fired for refusing to be vaccinated?

Yes, it is possible that your employer may fire you if you refuse to comply with a lawful and reasonable direction or a public health order to be vaccinated. If a public health order applies to you, you cannot be permitted back at work until you have complied with the order (including meeting an exemption). If no public health order applies to you, then your employer will rely on the concept of a lawful and reasonable direction. Whether a direction is reasonable will depend upon your individual circumstances. We discussed what is considered lawful and reasonable in our previous article here.

You can also read this article from the Employment Law Committee of the Law Society of New South Wales (Carly Stebbing is a member of the Committee).

Recent case on vaccination at work

In a recent decision, Jennifer Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWCFB 6015, the Full Bench of the Fair Work Commission (Deputy President Dean in dissent) upheld Commissioner McKenna’s decision to dismiss the application for an unfair dismissal remedy. In plain English, this means that both Commissioner McKenna and the majority of the Full Bench, found it was not unfair for the employer to dismiss Ms Kimber for refusing to be vaccinated against influenza.

Facts

It is important to note the facts in Ms Kimber’s case as determined by the majority of the Full Bench:

Ms Kimber alleged she had suffered a severe allergic reaction to the influenza vaccine in the past
Ms Kimber did not produce any evidence she ever sought medical treatment for the alleged condition
At the time of her dismissal, there was a public health order requiring Ms Kimber to be vaccinated against influenza
Ms Kimber refused to be vaccinated
Ms Kimber was asked to provide evidence of a contraindication to the vaccine
Ms Kimber produced a letter from a practitioner of chinese medicine that did not cite the limited categories of medical contraindication required for exemption from the vaccination
The employer wrote to Ms Kimber and stood her down from her employment until she agreed to be vaccinated or produced medical evidence of a permitted contraindication
The employer put the employee on notice that failure to follow a lawful and reasonable direction was a valid reason for dismissal and her employment would be at risk
The employee produced a letter of support from a GP that referred to the alleged condition suffered in 2016
The majority observed that the letter was based on what the employee had told the GP and not medical evidence, the employer did not accept the letter as evidence of a permitted contraindication
The employee informed the employer she would consult with an immunologist but did not
The majority observed that Ms Kimber held an anti-vaccination position and that her motivation in not being vaccinated went beyond the alleged condition suffered in 2016
The employee then had her GP complete the required medical contraindication form where the GP cited the employee’s previous alleged condition as a reason for exemption
The employee then sought to re-enter the workplace in contravention of a direction and public health order that she could not re-enter until she was vaccinated and regardless of any exemption
The employee was asked to show cause why her employment should not be terminated and she relied on the medical evidence from her GP
The employer determined that the medical evidence did not support the employee had a permitted contraindication to the vaccine and that she had breached multiple lawful and reasonable directions to be vaccinated
The employer dismissed the employee’s employment.

Medical evidence relied on by the employer

At hearing the employer relied on the medical opinion of Professor Denis Wakefield, a specialist immunologist of over 40 years. He determined based on the available evidence that the employee did not have a contraindication to the vaccine (she had been vaccinated against influenza in 2015 and 2016). This medical evidence was accepted, largely because it was not challenged – the employee did not call on her GP to give evidence at the hearing.

Outcome

It was determined at first instance that given the public health order, the requirement to be vaccinated was both lawful and reasonable.The employee’s failure to comply meant she could not perform the inherent requirements of her job. She could not enter the employer’s premises.

The decision was upheld on appeal and the majority held “we consider the public interest weighs entirely against the grant of permission to appeal. We do not intend, in the circumstances of the current pandemic, to give any encouragement to a spurious objection to a lawful workplace vaccination requirement.”

The controversy

Unfortunately it has been the decision of the dissenting member of the Commission, Deputy President Dean that has garnered the attention of the twittersphere and some right wing facets of the media. To be clear, the dissent is not binding, it is the decision of the majority that must be upheld by individual members of the Commission.

In dissent, DP Dean raised the following issues:

The requirement for freely given and informed consent for medical procedures
Denying an unvaccinated person the ability to work
The requirement to comply with disability discrimination law.

The reality

Let’s break down whether any of those issues will protect your job if you refuse to be vaccinated.

There can be no doubt that freely given and informed consent should be a requirement for medical procedures. An employer cannot force you to be vaccinated, you cannot be forced to be vaccinated in this country but if you decline, as the law stands, you may lose your job and your freedoms may be seriously curtailed.
Contrary to the view of DP Dean, employers in this country can mandate vaccination in some circumstances. This is clearly the view of the majority in the decision and is explained in the articles linked above and in the most recent Fair Work Ombudsman guidance.
Denying an unvaccinated person the ability to work is the consequence of applying the law as it stands today. It can only be upheld where there is a public health order or the direction is otherwise reasonable and lawful considering all of the circumstances and should not be taken where the employee has a contraindication to vaccination.
It does not offend discrimination law to dismiss an employee who fails to have the vaccine, unless the employee has a contraindication to vaccination or other disability or protected attribute preventing vaccination. You can read more about COVID and discrimination law here – it is the Australian Human Rights Commission guidance on the issue.

In short, employees should not rely on the dissent decision to justify a decision not to be vaccinated.

What if I have a medical reason for refusing the vaccine?

If you are subject to a public health order and you have complied with the approved medical form for an exemption then it would be unlawful to fire you on that basis alone. There is no current inclusion in the form for conscientious objections, only medical contraindications (both long term and short term). In the case detailed above it was found that the employee had not provided sufficient evidence of a permissible exemption from vaccination.

What medical evidence is required?

You should have a medical practitioner complete the relevant contraindication form or, where that form does not apply, provide evidence of a contraindication to vaccination.

However, if you are not able to provide a sufficient or detailed enough medical report, then your employer may direct you to attend an independent medical examination (IME) to assist in verifying your medical exemption.

Your employer can also direct you to attend an IME if they have the right to do so under your contract of employment. Case law has also confirmed that an IME can be a lawful and reasonable direction, and “an employer should, where there is a genuine indication of a need for it…be able to require an employee, on reasonable terms, to attend a medical examination to confirm his or her fitness.” (Blackadder v Ramsey Butchering Services Pty Ltd [2002] FCA 603 at [23]).

What are considered reasonable terms will depend on your individual circumstances. To increase the reasonableness of the direction, your employer should organise and pay for the IME and only direct you to attend an IME where the medical evidence provided was not sufficient.

What happens if I suffer adverse side effects as a consequence of mandatory vaccination?

The Federal Government is finalising a No Fault COVID-19 Indemnity Scheme to provide employers and employees with some comfort and a safety net of support, should an employee suffer an adverse side effect. At this stage you can register an intent to claim, while the details of the scheme are being finalised. The scheme will cover the costs of injuries “$5,000 and above” due to the COVID-19 vaccine causing an adverse reaction.

What should I do if my job is at risk?

Step 1: Confirm on what basis your employer is requiring mandatory vaccinations. Your employer should consult with you directly if a public health order applies to your employment or if they are intending to change their vaccination policy.

Step 2: Confirm whether your objection meets either the medical exemptions under the public health order or the workplace vaccination policy.

Step 3: If you believe you are being discriminated against, consider the Australian Human Rights Commission guidance and bring this up with your employer. They should make accommodations if at all possible (if a ground of discrimination is established).

Step 4: If you are still unable to resolve the issue with your employer you should seek legal advice.