Jennnifer Kimber, a former receptionist at aged care home Imlay House in Pambula, New South Wales, filed an unfair dismissal claim saying that she had an adverse reaction to a flu vaccine in 2016. She presented a note from a traditional Chinese medicine practitioner, who prescribed “immune boosting herbs” to her.
However, Kimber’s claim against Sapphire Coast Community Aged Care was rejected, upholding the employer’s right to dismiss her on the basis of vaccine refusal.
This marks the second such case in a month, confirming an employers’ right to request vaccination is “lawful and reasonable”.
In early April, a childcare worker was fired for refusing to get a flu vaccination. The Fair Work Commission also refused an unfair dismissal claim in this case, upholding the firing and finding the direction to be vaccinated as lawful and reasonable.
In late March 2020, the NSW government put a public health order in place, responding to the spread of COVID-19, which required aged care workers to be vaccinated against the flu.
“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],” it said.
In response, she was stood down from her role in April 2020, before the deadline to receive a flu vaccine, and was later fired in June for “being unable to fulfil the inherent requirements of her role”.
After submitting an unfair dismissal claim with the Fair Work Commission, commissioner Donna McKenna made the decision to uphold the dismissal.
“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.”
As it stands, the Australian rollout of the COVID-19 vaccine program remains voluntary. According to the Fair Work Ombudsman, Queensland is currently the only state which requires healthcare workers to receive the COVID-19 vaccination.
However, Prime Minister Scott Morrison has said the national cabinet will determine “where if in any cases there is a requirement to have that vaccine”, calling for consistent public health orders regarding the vaccine across the country.
These health orders may mean the COVID-19 vaccine becomes mandatory for aged care workers.
In a poll conducted by HelloCare on its Aged Care Worker Support Group, 16% of respondents said they would never take the COVID-19 vaccine and 4% said they were concerned about side effects.
Safe Work Australia has said that employers are not required to make their staff get a vaccine in order to continue working, and the Fair Work Ombudsman has warned employers that “in the current circumstances, the overwhelming majority … should assume that they can’t require their employees to be vaccinated against coronavirus”.
As the vaccine program continues rolling out, many aged care staff remain on the fence about getting the jab, however, they may find themselves in a position where they don’t get a choice.
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