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The Fair Work Commission is investigating an unfair dismissal case whereby an employee’s refusal to be administered a flu shot, despite providing medical certificates advising her history of serious allergic reacts to the flu vaccine, in effect, led to the termination of her employment. The case involves a part time worker – a care assistant, in the health and community services sector, who provides aged care to senior citizens.

Whilst the case played out over the course of 2020, when the Queensland Chief of Health Officer at the time provide and revoked direction that workers in aged care must be administered the flu shot, the worker had not been rostered for work by her employer after the directions were revoked.

The worker was compelled to use annual leave and long service leave during 2020, when she was no longer rostered for work by her employer on the grounds that she was unfit for work. Having placed the work on “indefinite unpaid leave”, Fair Work Commissions found that the worker’s employment was in effect – terminated, when she exhausted all annual leave, and with no rostered hours of work thereafter.

Fair Work Commission have given the greenlight for the worker to pursue a unfair dismissal claim against her employer. The outcomes of case could set a precedence for workplace policies and job requirements, set out by employers, for workers and employees on mandatory vaccinations. Whilst The view of Commissioner Jennifer Hunt is  “each circumstance of the person’s role is important to consider, and the workplace in which they work in determining whether an employer’s decision to make a vaccination an inherent requirement of the role is a lawful and reasonable direction.”.

 

BetterHR provides COVID-Safe plans and resources tailored to the health and community services sector. Clients get access to Covid-19 workplace policy templates, checklists, work health & safety guidance, Jobkeeper directions, and more with a BetterHR Plan.