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Right of refusal
It ’ s not clear-cut … it is risky for employers to adopt a blanket policy .
Can you be fired for not getting the COVID jab ?
By Wade Zaglas
It ’ s a question that ’ s likely to be on many people ’ s minds : can my employer make a COVID-19 vaccination a condition of my employment ?
While the Australian government is hoping for a vaccination rate of around 95 per cent , feelings of resistance and hestistancy surrounding the vaccine will make broad-coverage vaccination no small feat to achieve .
Safe Work Australia has provided advice on the national roll-out for COVID-19 vaccinations .
“ The Australian Government is committed to providing all Australians with access to free , safe and effective COVID-19 vaccines . While the Government aims to have as many Australians as possible choose to be vaccinated , receiving a vaccination is voluntary . You can encourage your workers to get a COVID-19 vaccination , if they are able to ,” it says .
However , the website goes on to state that , since health is the purview of states and territories , it will be the responsibility of jurisdictions to mandate COVID-19 vaccinations based on risk factors .
“ State and territory health agencies may make public health orders that require some workers to be vaccinated , for example , those considered to be working in high risk workplaces . If public health orders are made , you must follow them .
You should stay up to date with the advice of your health agency .”
As 2021 rolls on , it will be interesting to see which roles are considered risky , which ones are progressively added to the ‘ risky ’ list and how individuals try to negotiate their rights to be vaccinated against others ’ rights not to be .
Two Edith Cowan University lecturers recently addressed this issue in The Conversation , calling it “ an ambiguous legal question ”. Law lecturers Cecilia Anthony Das and Kenneth Yin state that an employer can make vaccinations a requirement of employment , but there are caveats .
In a nutshell , the right of an employer to make vaccinations a condition of employment “ depends on ‘ balancing ’ the employer ’ s duty of care to others with the employee ’ s reason for refusal , and the circumstances of the work they do ”.
A case that illustrates this “ balancing ” of interests is an unfair dismissal case brought before the Fair Work Commission in late 2020 involving Goodstart Early Learning and childcare worker Nicole Arnold .
“ In April 2020 Goodstart made a flu vaccination a condition of employment , though allowing exceptions on medical grounds . Arnold objected . In correspondence with her employer she cited the Bible , the Nuremberg Principles and the Universal Declaration of Human Rights . But she gave no medical reasons . She was dismissed in August 2020 ,” Anthony Das and Yin said in The Conversation .
The commission dismissed Arnold ’ s case , citing that the employer ’ s duty of care to children in its care was “ arguably reasonable ”, while Arnold ’ s refusal was “ arguably unreasonable ”.
In her ruling , Commissioner Ingrid Ashbury said :
“ While I do not go so far as to say that [ Arnold ’ s ] case lacks merit , it is my view that it is at least equally arguable that [ Goodstart ’ s ] policy requiring mandatory vaccination is lawful and reasonable in the context of its operations which principally involve the care of children , including children who are too young to be vaccinated or unable to be vaccinated for a valid health reason .”
In delivering a preliminary ruling on another unfair dismissal case involving an employee of an aged care facility refusing an influenza vaccination on medical grounds ( a final ruling is still pending ), Commissioner Jane Hunt stated :
“ In my view , 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 .
“ Refusal of such may result in termination of employment , regardless of the employee ’ s reason , whether medical , or based on religious grounds , or simply the person being a conscientious objector .”
Simply put , Yin and Anthony Das conclude that making vaccinations mandatory , including for COVID-19 , depends on the employee ’ s role within the organisation and the risk of exposure .
“... If risks to others can be minimised through social distancing and other measures – say , for instance an employee works from home – dismissing an employee for refusing to get vaccinated could be ruled unfair ,” the authors state .
“ Particularly if they have a good reason – that is a medical condition , not a pseudolegal objection . It depends on the balance of the employer ’ s duty of care to others against the employee ’ s claims .
“ So it ’ s not clear-cut . As things stand it is risky for employers to adopt a blanket policy to make COVID-19 vaccinations compulsory .” ■
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