Employers Power: If You Breach a Health Order During COVID-19 and Mandatory Vaccination

It’s another blow to businesses and families as the Premier announced another lockdown for 4 weeks due to the COVD-19 outbreak. But two areas of contention relate to outside gatherings in Sydney and in particular the Anti-Lockdown Rally/Protest and whether you can dismiss employees who refuse to vaccinate.

Outside Gatherings

The question is: if you know one of your employees has attended an outside gathering in breach of the health order do you allow them back into your workforce without requiring a quarantine period and a covid test?

Employers need to consider the Work Health and Safety Obligations that they are required to adhere to under the Work Health and Safety Act 2011 and applicable regulations. Health Orders and Directions are mandatory by the NSW Government and must be adhered to, but employers obligations are such that they must go above and beyond to keep employees safe.

You can check out the Public Health Orders and Restrictions here.

In a time of uncertainty in employment law and what is fair and unfair, harsh or unreasonable we want to consider a recent matter that popped up regarding attending a Rally.

A teacher has been suspended after attending the Sydney Anti-Lockdown Rally. The teacher was found out after posting it on social media.

The school has acted swiftly to report the teacher to the police and actioned a suspension on the basis that “people are free to hold their own views and beliefs, but this does not extend to their behaviour and conduct”.

It is the view of the school that such behaviour is in breach of the code of conduct not to mention an intentional breach of the government restrictions.

There is no specific detail if the suspension is paid or unpaid or whether the teacher will be terminated. But watch this space!

Take-Outs

It is now more than ever important that you review your business Work Health and Safety Obligations and have a plan!

The Plan may be to roll out policies that protect you from landing in the Fair Work Commission:-

  1. Roll out a policy that can include:
    • any conduct in breach of the Health Orders and Directions may face disciplinary action;
    • that the health, safety and wellbeing of employees are paramount and set clear and concise requirements for testing and quarantine.

Coutts has the experience to guide you to the best option for your industry and business. We recommend that you speak to us to work out what is best for you and your team.

What about vaccination, can your employer make it mandatory?

Two recent cases in the FWC Commission determined that the employer (in aged care and in child care) could dismiss an employee for failure to vaccinate at the direction of the employer.

Facts:

In Barber v Goodstart Early Learning [2021]

Goodstart implemented a mandatory influenza vaccination policy for all staff. The policy contained an exemption basis for mandatory vaccination on medical grounds. Ms Barber sought an exemption on the grounds that she had a sensitive immune system, suffered from coeliac disease, and had suffered an adverse reaction in the past.

Goodstart required Ms Barber to be vaccinated on the basis that she could not meet the inherent requirements of her role.

FWC Deputy President found that Ms Barber had failed to produce any substantial documentation to support a medical exemption from the policy.

As a result, Ms Barber had failed to comply with the lawful and reasonable direction to be vaccinated in accordance with the Goodstart policy, which resulted in the termination of her employment.

Ms Barber failed on her claim to the Fair Work Commission.

In Kimber v Sapphire Coast Community Aged Care Ltd (2021) (“SCCAC”)

Ms Kimber was an employee and in June 2020 a Public Health Order directed that anyone without an up-to-date vaccination for influenza could not enter a residential aged care facility. The employer directed that unless you have the vaccine or fitted into one of the exemptions you could not attend work.

Ms Kimber refused to have the vaccination and provided a note from her GP that she had previously suffered a reaction. The employer terminated the employment advising that she could not safely perform the inherent requirements of the role.

Ms Kimber took the matter to the Fair Work Commission (“FWC”).

The FWC found that she could not perform her role if she did not comply with the Public Health Order and she had not demonstrated any medical exemption. The dismissal was not harsh, unjust or unreasonable.

Take-Outs

Vaccinations may be lawful and mandatory depending on each circumstance and industry. You need to seek advice before you refuse to vaccinate at the direction of the employer. Further, employers should seek advice before they terminate an employee for failure to follow a direction.

Coutts has the experience to guide you to the best option for your industry and business. We recommend that you speak to us to work out what is best for you and your team.

At this point in time, there are no reported case laws on COVID-19 vaccinations. But watch this space!


ABOUT KARENA NICHOLLS:

Karena Nicholls

Karena is a Partner at Coutts and is the Head of our Injury Compensation (with extensive knowledge in personal injury) and Employment Law teams. She is passionate and dedicated to helping her clients understand their rights and obligations and advising them on the best course of action to achieve their desired outcomes. It is her practical and client-orientated approach that has attributed to her authentic reputation positioning her as a highly regarded compensation and employment lawyer.


For further information please don’t hesitate to contact:

Karena Nicholls
Partner
karena@couttslegal.com.au
1300 268 887

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This blog is merely general and non-specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever to this blog, including all or any reliance on this blog or use or application of this blog by you.