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Employers operating in high-risk environments such as aged and child care have been given further confidence that they can force workers to immunise after the Fair Work Commission today upheld the sacking of a long-serving care assistant who refused a compulsory flu shot on allergy grounds.

Commissioner Jennifer Hunt’s ruling comes within five weeks of two similar findings rejecting unfair dismissal cases.

The Fair Work Commission flagged its own growing confidence in its members’ reasoning as President, Justice Iain Ross, declined Commissioner Hunt’s invitation to refer the most recent case to a full bench.

Left to consider herself whether Ozcare’s direction was “lawful and reasonable having particular regard to [the care assistant’s] care of vulnerable clients in their home”, Commissioner Hunt ultimately found no reason to reach a different conclusion to her fellow members.

After more than 10 years visiting Ozcare clients in their homes, the 64-year-old care assistant was in April last year directed to take a flu shot but declined, explaining that her parents had told her that she “could have died” after reacting to a shot when she was seven.

Ozcare in response said annual inoculations were now an inherent requirement of the assistant’s role, citing Queensland Chief Health Officer Dr Jeannette Young’s since-revoked directions that workers could not enter residential aged care facilities unless they had an influenza vaccination.

The Queensland public health directive specified that vaccination was required if “available”, clarifying that it was “not available to the person with [a] medical contraindication to the influenza vaccine”.

Despite providing Ozcare with a medical certificate stating she could not be vaccinated “as she had anaphylaxis with Flushot in childhood” and she was not to attend work until after September when “flu infection time” passed, the care assistant was informed she would not be rostered or allowed to enter Ozcare’s premises for an unspecified period.

When her annual and long service leave ran out on October 4, Ozcare said that while it would be unable to offer shifts this did not constitute dismissal, as she would be on unpaid leave.

Commissioner Hunt in January found otherwise to clear the way for the care assistant to pursue her unfair dismissal claim.

“Not a widget maker in a widget factory”

Observing that the care assistant’s evidence of her supposed allergy amounted to no more than informing her GP that she believed she suffered from the condition, Commissioner Hunt said her role “was not that of a widget maker in a widget factory where her status as an unvaccinated employee might not matter”.

“In that scenario, it might be lawful for a widget factory employer to mandate influenza vaccinations for widget makers where no such government directive had been made; however, it might not be or is not likely to be reasonable in all of the circumstances.

“On any plain reading of the Aged Care Direction first issued and later superseded by many further Aged Care Directions until December 2020, it was a lawful requirement to be vaccinated against influenza to enter or remain on the premises of a residential aged care facility unless a vaccination was not available to the person.

“It is further noted that the various Aged Care Directions provided such strict rules around only residential aged care facilities and did not apply to community care or in-home care.

“[The care assistant] considers that it was not reasonable for Ozcare to introduce a policy which went above and beyond the Aged Care Direction, and which she could not meet due to the condition she understands that she has.”

The commissioner did not accept, however, that this meant that Ozcare’s decision to introduce mandatory vaccination was unlawful.

“Ozcare has not physically required any employees, including [the care assistant] to be vaccinated against their will.”

“It has not held an employee down against their will and inflicted a vaccination upon them.

“Further, I do not consider its stated position requiring employees to be vaccinated or face termination is unlawful.

“I note it does not breach any ground of discrimination.

“Where Ozcare has mandated influenza vaccinations for client-facing employees, I consider it to be a lawful requirement for continued employment.

“The consideration then turns to whether it was a reasonable requirement in all of the circumstances.”

A backdrop of managerial prerogative

Commissioner Hunt accepted evidence from Ozcare that its community-care employees could potentially become influenza “super-spreaders”, noting that it would be a “comfort” to the employer if it could declare all its client-facing employee were vaccinated in the event of any litigation.

The commissioner also agreed with Ozcare’s argument that the reasonableness of its direction should be assessed “against the backdrop of managerial prerogative”.

“Ozcare has determined, and I accept, that this is a decision the business considered necessary to take to safeguard its clients and employees as far as it is practicable to do so.”

“Having regard to all of the evidence and submissions before the Commission, I find that Ozcare’s decision to mandate influenza vaccinations for all of its client-facing employees, without allowing any exemption was lawful and reasonable.

“I do not consider the reason for the dismissal was capricious, fanciful, spiteful or prejudiced.

“I am satisfied there was a valid reason for the dismissal having regard to [the care assistant’s] capacity and Ozcare’s operational requirements.”

Also finding that the dismissal was not harsh, unjust or unreasonable, Commissioner Hunt dismissed the case.

Maria Corazon Glover v Ozcare [2021] FWC 2989 (26 May 2021)