May 04, 2021

Aged care worker sacked for refusing flu jab has dismissal upheld

Flu jab

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. 

Do you think the federal government should mandate vaccine requirements for aged care workers? Share your thoughts with us below. 

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  1. Surely many of us agree with The Fair Rights Commission decision to back the employer in these cases; in the first a worker in childcare wanting to put young children at risk of contracting and spreading the flu, and in the latest case a woman refusing the flu jab potentially putting at risk our vulnerable elderly.
    I’m sorry, but if you work with vulnerable persons (particularly our young and our aged), workers must be expected to take every precaution to protect them.

  2. No I do not agree with Government or Aged Care facilities that make the Flu or the Covid vaccine shot mandatory nor do I agree that the elderly who need to go to facilities do not have the chose either – there are some elderly cognitively intact who can make there own minds up regarding if they chose to have it or not. It does seem a bit of black mail ( I know a harsh term ) – ( elderly absue), I believe that every person still has the right to refuse any medical intervention if they want, that should include vaccines. I know of a elderly lady 9 intact mentally and physically that was told if she did not get the flu vaccine the could not go to the facility ( she was adamant that she DID NOT want the jab, but because she had no where else to go so under sufferance she agreed but was not happy at all. So where has peoples choice gone.

  3. No, I do not think that the federal government should mandate any vaccines. The general public is anxious about side effect and the careworkers should make to their own choices. Their could be lot of problems arising from the side effects of vaccines if this would become mandate. Who is responsible if the side effects will effect some care workers? It will cause a lot of uproar amongst the people as this will impact freedom of every Australian who should have a choice. If it would become mandate, care workers can leave and find another job. Vaccines can be a part of the work requirements.

  4. Agree with decision.

    Aged Care Workers, along with other healthcare workers, have a duty of care to NOT SPREAD INFECTIONS, respiratory or otherwise, to their aged, vulnerable clients. If Care Workers, do not, or cannot be vaccinated, they must seek alternative employment away from frontline care duties.

  5. Not one scientific evidence has produce conclusive results that the current Covid-19 vaccine is effective in preventing the virus moving to different host. I believe we need to further find the right formula for the mutating virus before injecting it into the workforce.
    There are people in the front line that have the virus and because their immune system is working they have not fallen in a heap. Having a mask on does limit the spread and isolation of fragile people is the best way until such time the science can be 100% sure of their creation.
    I have always had my immunisations and my flu vax each year. Yes they have prevented illness. As a nurse it was mandatory to be vaccinated before doing the job. However, when you read the company’s of the manufactured Covid-19 website there are some interesting and wrongly chosen words which make me aware something is not right.
    Sorry to say I don not trust rushed manufacturing.

  6. As an active resident of an aged care facility where all the residents have been vaccinated and strict precautions to prevent exposure to the coronavirus are in place, i know that one of the potential portals of entry for the virus is though the daily comings and goings of the staff and contractors. Vaccination of staff will help close that portal. Only one unvaccinated staff member would be enough to bring the virus from the community into the facility.
    Just one case of the virus entering would result in very rigid lockdown rules within the facility, including NO movement from any resident’s room.
    This lockdown period would result in further stresses on already vulnerable residents and more work for the staff on duty.
    An unvaccinated worker represents an unnecessary hazard to the whole facilty.

  7. Everyone that works in or visits an aged care facility needs to be vaccinated.
    The employee of course can refuse but they are there to care for the vulnerable, not endanger them.

  8. If the vaccine was mandated it should only be compulsory if the aged care worker qualified for, and was paid the Commonwealth Covid 19 – Virus bonus.

    If the worker did not qualify for the Commonwealth Covid 10 bonus, then they are not a front line age care workers and should be exempt, both now and in the future.

  9. Yes I believe they should. I am all for personal freedom and rights however when you choose to work in an industry where the health and care of residents is paramount minimum health standards a a must.
    It is well know that a dose of the flu can kill elderly patients who are already managing other co-morbidities surely allowing unvaccinated staff to work in health care is playing Russian roulette with our patients.

  10. Should be a personal choice as was flu vaccination in the past. Mandatory immunisation may put staff out of employment they may have studied for years to gain. Older staff will leave the industry as the easier option. This leaves the industry even shorter of staff than previously. Low pay. Huge workloads & no personal choice re own health.

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