The Fair Work Commission has thrown out a request from an ambulance paramedic sacked for refusing the influenza vaccination to refer purported questions of law to the Federal Court.
The paramedic’s employer, St John Ambulance Western Australia Ltd, imposed a mandatory flu vaccination policy after the State Government in April last year promulgated the now-revoked Visitors to Residential Aged Care Directions (Directions).
The paramedic objected to the vaccination “because of a deep sense of morality and desire to maintain my bodily integrity is not punishable by the termination of one’s employment” saying it had been harsh to dismiss her.
She claimed St John had been willing to make reasonable adjustments and “allowances” for other workers deemed unable to fulfil the inherent requirements of their roles.
“Some examples include medical conditions, such as diabetes or epilepsy, hypertension or sleep apnea.
“Other examples include criminal causes; loss of driving license due to convictions related to either drug or alcohol intoxication whilst controlling a motor vehicle”.
But the employer said in response to her submissions in the unfair dismissal case that its hand had been forced by the chief health officer’s direction, which made it compulsory for anyone entering a residential aged care facility to have a current influenza vaccination.
It noted that exemptions are available where a person is responding to an emergency, a vaccination is not reasonably available, or there is a medical contraindication.
The paramedic sought an exemption on unspecified medical grounds and a conscientious objection, but St John rejected it and directed her in August last year to comply with the vaccination policy.
After the paramedic confirmed in April this year that she did intend to be inoculated, St John issued a show cause notice for her alleged failure to follow a lawful and reasonable direction and her inability to meet inherent requirements of her role due to her non-vaccinated status.
It dismissed her in June and the paramedic lodged a dismissal claim that was listed the matter for hearing on October 8.
However, the paramedic early this month asked the President to refer six purported questions of law to the Federal Court.
Vice President Adam Hatcher, acting to determine the matter under delegated authority from President Iain Ross, said the paramedic had made “extensive submissions” to support referral, which he outlined in his ruling.
He concluded that the questions of law put forward by the paramedic “are better characterised as tendentious propositions, masquerading as questions, raised in support of her case that she could not lawfully and reasonably be directed to comply” with the mandatory vaccination policy.
“None of them arises independently as a question of law which necessarily requires determination in the proceeding before the Commissioner.
“And, because they are (at best) simply facets of the larger question as to whether St John’s direction for [the paramedic] to comply with the [vaccination] policy was lawful and reasonable, the ‘questions’ are not, either individually or collectively, necessarily determinative of that significant question.
“Nor, for the same reason, can the questions be determined without findings being made as to the facts bearing on the lawfulness and reasonableness of the direction to comply with the policy.”
Vice President Hatcher said a “significant question arising” in the case involves whether the employer’s requirement that the paramedic comply with the vaccination amounts to a lawful and reasonable employment direction, so that her refusal might give rise to a valid reason for dismissal.
“That is not of itself a question of law; it requires the application of a legal standard to the facts of the particular case, and is therefore a mixed question of fact and law,” he said.
“Whether a direction is lawful and reasonable cannot be determined in vacuo but only by reference to the subject matter and context.
“Accordingly, no determination can be made as to whether a particular direction is lawful and reasonable until the relevant factual findings have been made,” he said.
Krystle Giggs v St John Ambulance Western Australia Ltd [2021] FWC 5991 (27 September 2021)
