We recently advised on the Tier approach taken by Fair Work and recommended factors which were to be given consideration in determining whether a direction to vaccinate in a workplace would be considered reasonable and lawful. This came following companies, including SPC and Qantas, having indicated that they will make COVID vaccinations mandatory for parts of their workforces in the coming months.
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A recent Fair Work decision has provided further guidance as to the options open for employers when dealing with vaccinations in high-risk industries by rejecting an employee’s application to appeal her dismissal.
The relevant employee, Jennifer Kimber (‘Kimber’), was a receptionist at a nursing home who refused to receive the mandatory flu vaccine and was therefore terminated.
In a decision that divided the Fair Work Commission, they determined a rejection for the appeal appropriate due to personal views of Kimber and also not wanting to give encouragement to illegitimate objections to lawful workplace vaccinations in the current pandemic.
This determination not only demonstrates how similar cases may be viewed by Fair Work but also the divide that exists within the Commission. To assist in safeguarding a direction being viewed as reasonable and lawful, employers need to ensure that each employee is assessed on a case by case basis and that they are consulting with their workforce concerning a mandatory vaccine policy.
We are currently drafting communications to the workforce on behalf of employers and preparing vaccination policies. Please don’t hesitate to contact us if you would like any further information regarding the above or have any questions specific to your business.
