Can an employer force an employee to have a COVID-19 vaccination?

Yesterday the Fair Work Commission handed down a decision that will provide guidance on this interesting question. It dealt with influenza injections but will have application to COVID-19 vaccinations.

The decision was an appeal from a decision of Commissioner McKenna in an unfair dismissal application by Ms Jennifer Kimber. Ms Kimber worked in an aged care facility. Her employer required her to have an influenza injection which was consistent with the Federal Governments policy.

Ms Kimber had previously had an adverse reaction to an influenza injection in 2016. Ms Kimber declined to have the injection and was stood down from her employment. Ultimately after a period of leave, Ms Kimber was dismissed from her employment.

Vice President Hatcher and Commissioner Riordan dismissed the appeal and said:

we consider that 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.

Deputy President Dean disagreed. In a strongly worded dissenting judgment she indicated that particular care should be taken to examine the legislation and public health orders in force. Her conclusion was that mandatory directions to employees in many workplaces will not be valid directions. She comments:

All Australians should vigorously oppose the introduction of a system of medical apartheid and segregation in Australia. It is an abhorrent concept and is morally and ethically wrong, and the anthesis of our democratic way of life and everything we value.

The majority and hence the decision is broadly consistent with the opinion of many legal commentators. My view is that where it is required by a public health order it will be lawful for an employer to require unvaccinated employees to be stood down. Whether dismissal will then be justified will depend on a variety of factors and many cases will turn on their own facts.

Here is a link to the decision [2021] FWCFB 6015

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