Is mandating vaccines lawful?

There is a lot of uncertainty around in this ever-changing COVID-19 environment as the vaccine rollout continues across Australia.  There is not a lot of helpful guidance for employers, but we are keeping track of all unfolding developments.

Yesterday the Fair Work Commission upheld an earlier decision that the termination of employment of a non-compliant employee was fair. 

The case of Jennifer Kimber v Sapphire Coast Community Aged Care Ltd (C2021/2676) stemmed from the termination of employment of a receptionist at an aged care facility in NSW.  The employee refused to have an influenza vaccination as required in aged care, under Government imposed public health orders.  The employee stated that she had an allergy, but failed to provide evidence of any allergy.

On appeal, the Full Bench of the Fair Work Commission dismissed the appeal and upheld the original decision.  The Full Bench stated that it would not encourage spurious objections to lawful workplace requirements.

The take-away for employers is that if the workplace mandates vaccines in order to comply with public health orders, if an employee fails to comply, it is a lawful reason to terminate the employment if it makes the employment untenable.  However, of course, if the person has a lawful reason for non-compliance, such as an allergy, that situation will need to be addressed on its merits.  Employers are reminded to always comply with equal opportunity legislation.

The full decision is available here: [2021] FWCFB 6015