Decision upheld
Worker sacked for refusing flu vaccine has unfair dismissal claim rejected .
By Conor Burke and NCA NewsWire
A
NSW aged care worker has had her unfair dismissal claim rejected after she was sacked for refusing to have a flu jab , The Guardian reported .
Jennifer Kimber , a receptionist with Imlay House in Pambula on the NSW south coast , refused to take the flu jab in 2020 as she claimed to have had an adverse reaction to a previous flu jab in 2016 .
She presented a note from a practitioner of Chinese medicine which said that Kimber would “ prefer to not have the flu vaccination ” and that they had prescribed Kimber with “ immune boosting herbs as well as antiviral herbs in a formula that has been being [ sic ] used in China in the prevention of Covid-19 and seasonal flues [ sic ],” the note said .
Kimber was stood down in April 2020 , before the deadline for all aged care workers to be up to date with their flu vaccinations , and was then sacked in June for being unable to fulfil the inherent requirements of her role .
The Fair Work Commission rejected Kimber ’ s claim against provider Sapphire Coast Community Aged Care and Commissioner Donna McKenna found that the employer was reasonable in its actions .
“ If an employee makes a personal choice not to have a flu shot , then an employer which provides residential aged care services and which is subject to a [ public health order ] has its own obligations ,” she said .
“ I find that the respondent … acted in an objectively prudent and reasonable way in not permitting the applicant to work within Imlay House absent an up-to-date flu shot .”
This case could be important going forward as many employers look to the government for guidance on staff and COVID-19 vaccinations .
COVID-19 vaccinations are currently voluntary in most states , Queensland is the only state to currently mandate its health workers to be vaccinated against COVID-19 , and PM Scott Morrison is still open to the idea of bringing nationally consistent health orders into place .
Queensland AMA President Chris Perry believes that new laws should be made so that employers can find out which staff have been vaccinated for COVID-19 .
Perry told Sky News that vaccination data held in online systems through the Federal Government ’ s MyGov portal cannot currently be accessed by employers , even in high-risk industries such as health and aged care .
“ We would all like to see a bit more strength from the government and some legislation around getting the figures , being an employer being able to look at their staff
“ The government has to look at what they ’ re going to do about people refusing to have a vaccination in certain industries .
who aren ’ t vaccinated and work out what they can do about it ,” he said .
“ What do you do with someone in an aged care facility who refuses to get a vaccine for no other reason than they ’ re scared , or they ’ ve been reading strange science on the internet .
“ They could bring a deadly disease into the community and kill some of the staff , and then the business is liable more than the individual staff member is .
“ It ’ s a real issue and the government has to look at what they ’ re going to do about people refusing to have a vaccination in certain industries in the future , including health , including airlines , meatworks , it ’ s an issue and something we ’ ve got to think through .”
The Public Health Association of Australia Chief Executive Terry Slevin suggests that a vaccine passport might be a solution to the privacy issues .
“ We ’ re going to have to set some precedents that we might not be comfortable with , and we ’ re going to have to work our way through it in good faith ,” he told Sky News . ■
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