Employment Law Articles
Prime Minister Scott Morrison last month declared that the states have agreed it would not be unlawful to work in aged care without being vaccinated stating that “they’re not recommending that that be the case” but “that doesn’t mean that that mightn’t be a position in the future”. It is apparent from these statements that the government intends to leave it to employers to sort through the hot mess of whether employers can enforce a ‘no jab, no job’ policy.
Can an employer direct an employee to get the coronavirus vaccine and if the employee refuses, can their employment be terminated?
The Fair Work Commission has already recently considered an employer’s mandatory vaccination policy in relation to the influenza vaccine where a child care worker was dismissed because she did not comply with a direction to be vaccinated and she did not have a medical condition or medical grounds to refuse the vaccination. The test appears to be whether in the context of an employer’s operation, the direction to employees to get vaccinated is lawful and reasonable and further whether the policy is necessary for the employer to discharge its duty of care with respect to persons in its care.
A refusal to follow a lawful and reasonable direction can amount to a valid reason for termination. However, if the direction is not reasonable, then employers open themselves up to an unfair dismissal claim.
What is reasonable will depend on the circumstances. What is reasonable in an aged care, hospital or child-care setting will be different to what is reasonable in an office or on a building and construction site.
The issue is an issue of health and safety. A direction to be vaccinated is more likely to be lawful and reasonable for businesses that are considered ‘high risk’ or susceptible to an infection outbreak. This would include places of employment such as hospitals, nursing homes, schools and child-care centres where the children are too young to be vaccinated themselves and rely on ‘herd immunity’.
Employers considering implementing a ‘no jab, no job’ policy should consider whether the policy is necessary for employees to comply with the inherent requirements of the job (for instance, to care for children, the elderly or the sick) and if an employee does refuse to be vaccinated, can reasonable adjustments be made to accommodate the employee’s refusal (for instance face masks and social distancing) and whether medical grounds will form an exception to the policy.
Contact Conditsis Lawyers today for answers to all your employment questions.
 Arnold v Goodstart Early Learning (U2020/11961) 18 November 2020
As the relaxing of social distancing restrictions are coinciding with many workplaces holding their Christmas parties, it is timely to remind employers about their legal obligations to staff, to provide a safe environment at the Christmas party – as well as help employers manage their exposure to claims during the Christmas period.
Although Christmas is a great opportunity for staff to relax after a big year, and for employers to show genuine appreciation for their hard work, the combination of being dressed up and out of the work environment (and, let’s be honest, free drinks) often results in Christmas parties full of inappropriate behaviour from staff and managers alike.
Despite Christmas parties usually being held off site, employers can be held liable for the behaviour of staff during the party. Such behaviour can result in an employer spending time and money investigating a claim, hiring external investigators, defending time consuming and costly litigation, the involvement of insurance companies and the financial and cultural losses incurred from a drop in staff engagement and well-being.
Accordingly, at Conditsis Lawyers, we strongly recommend that employers take some simple actions to ensure firstly – that no claims are made after their Christmas party, and secondly – if a claim is made, they have taken all reasonable steps to ensure they are not held liable.
With that in mind, here is some practical Christmas advice when planning the all-important end of year event:
C – Create a policy! The easiest and most effective way of making sure employees understand their rights and obligations at social events is to ensure you have an informative, easy to read and, most importantly, accurate and up to date Workplace Function Policy in place. And, while we’re on policies, don’t stop at one. Ensure your Drug and Alcohol, Bullying, Harassment and Discrimination, WHS, Grievance Procedure policies and Code of Conduct are watertight. (When in doubt, ask a lawyer).
H – Help staff understand your policies. All new staff should be provided with a suite of company policies at onboarding. A HR representative, or Supervisor should be well versed in the policies and able to answer questions on them.
R – Reminders. There’s no point drafting, or paying for great workplace policies, if they are hidden in a drawer. Remind employees of their obligations to both be aware of, and follow all workplace policies. Pin them to staff noticeboards. Send an email to staff in the lead up to the Christmas party, reminding them that they are still covered by the policy and about your expectations of appropriate behaviour. Use clear examples of inappropriate behaviour: “just because a female is nice to you, it doesn’t mean she wants to kiss you”.
I- Internet parties are still workplace events! Even if your Christmas party is a zoom meet up, inappropriate behaviour can occur (just google it). Be careful not to let the shield of the internet cause employees to forget their obligations.
S- Safety first. Are your employees working the next day? Think about their duties, for example, are they on a construction site, or required to drive as part of their role? If so, do not serve alcohol – remember, blood alcohol readings can be over the limit the morning after.
T- Taxi, anyone? Consider providing access to taxis or a shuttle bus as a way for intoxicated employees to get home.
M- Munchies.Provide sufficient food available to absorb all that eggnog.
A- Alcohol – If you’re providing free drinks, ensure your party is held at a venue where responsible service of alcohol requirements are followed. If it’s more of an after-work-beers-and-chips-in-the-boardroom situation, make sure water is available.
S- Set an example. Remember, your employees look to you for clues on how to behave. Be the leader you want them to follow.
Men with beards are often told when attending job interviews or attending their workplace that they need to be clean shaven (i.e. that their beard needs to go) but does such a request amount to discrimination?
According to the Australian Human Rights Commission, Commonwealth laws and the state/territory laws generally overlap and prohibit the same type of discrimination. As both state/territory laws and Commonwealth laws apply, an employer must comply with both. However, these laws generally only protect certain attributes (for example sexuality, race, religion/culture, political opinion, disability, national extraction etc) and employers are permitted to have rules about how their employees look and dress on the proviso that those rules don’t conflict with the law.
In that regard, if an employee has a beard because of religious/cultural beliefs then the employer can face discrimination accusations when asking a bearded employee to be clean shaven.
Religion is one of the most prevalent forms of culture which impacts a male’s choice of beard. For many there are strict rules and their facial hair extends beyond the realms of fashion, style or hipster trends. Some examples of religious/cultural hair grooming practices that would be protected by Australian discrimination laws include the Sikh beard, the Jewish beard or Peyes (sidelocks).
However, if the employees choice to have a beard isn’t on grounds of religious/cultural reasons then there is likely to be no cause of action or protection under Australian discrimination laws, as those laws do not protect “personal preferences” (i.e. a person’s personal preference to have a beard) and in such circumstances, an employer will not be in breach of the law by asking their employees to be clean shaven.
If you have any further questions about the above information (either as an employer or as an employee) please contact our offices and/or the Australian Human Rights Commission.