Employment Law Articles

The answer depends on who you work for, what you do for work, and why you refuse to get vaccinated.

For the purpose of this article, let’s assume you are covered by the unfair dismissal provisions in the Fair Work Act. In those circumstances, your employer is required to have a valid reason to terminate your employment.

Whether or not refusing the COVID19 vaccination would constitute a valid reason for your termination has not yet been determined by the Fair Work Commission.

However, recent decisions of the Fair Work Commission have determined that, in certain workplaces, a mandate by an employer that all of their employees working in certain capacities, who were able to do so, receive the flu vaccine, was a lawful and reasonable direction. A failure to follow a lawful and reasonable direction is a valid reason to terminate a person’s employment.

The Flu vaccine: a case study

Two recent Fair Work Commission decisions from early 2021, are of particular note.

The first decision involved the termination of an employee who worked as a Care Assistant in Aged Care, for refusing to receive the flu vaccine. The employer, following the issuing of an Aged Care Direction from the Queensland Chief Health Officer making it mandatory for employees working on-site at aged care facilities to have the flu vaccine unless a vaccination was not available to the employee), issued a new Employee Immunisation Policy to make flu vaccines mandatory for all employee in client-facing roles. The Fair Work Commission determined that the employer’s requirement that all employees in client-facing roles receive the flu vaccination was a lawful and reasonable direction and that the employee’s refusal to comply with that direction constituted a valid reason for her termination.

The second decision involved the termination of an employee working in early childhood education, whose employer had introduced an immunisation policy, requiring that all staff must receive the influenza vaccination unless they have a medical condition which makes it unsafe for them to do so.

The employee claimed to have a sensitive immune system, however, her employer determined that the medical certificate she provided was not sufficient to support an objection to the influenza vaccination, and her employment was terminated for her failure to be vaccinated and meet the inherent requirements of her role.

The Fair Work Commission in that matter found that it is reasonable for a childcare provider to mandate flu vaccination for staff who deal with children on regular basis and in close proximity and that the refusal by the employee to receive the flu vaccine constituted a failure to abide by a reasonable and lawful direction, and therefore constituted a valid reason for her termination. The employee’s claim that she had a sensitive immune system was not supported by any evidence from medical professionals, and as such, the Fair Work Commission found that she did not have a medical condition that made it unsafe for her to receive the flu vaccine.

As the above decisions demonstrate, where an employee is working in a client-facing role, with vulnerable clients, such as the aged and young children, a refusal to receive a flu vaccine without a sound medical basis will justify an employer terminating their employment.

Of course, that doesn’t mean every employee across all industries can be sacked for refusing a covid 19 vaccine. The applicability of any public health orders mandating that particular positions must be vaccinated to allow a business to operate is particularly relevant to determining if an employer can sack an employee for refusing the Covid 19 vaccine. However, if an employer wishes, with some justification, to go further than the public health orders, as long as they had a sound basis for doing so, and they have consulted with their workforce prior to implementing a mandatory covid 19 vaccination policy, they could still terminate an employees employment, if, in all of the circumstances, their direction to the employee under that policy was found to be reasonable.

An employer would also be required to explore reasonable alternative employment options, prior to terminating an employee who is required to receive a Covid 19 vaccine, either due to the impact of the public health orders or under the employer’s mandatory vaccine policy. Given the widespread speculation about public health orders and restrictions being lifted later in the year, it may be that a period of stand down or work from home on alternative, productive duties is something that an employer may need to properly consider in the short term, instead of terminating an employee who refuses to receive a Covid 19 vaccine.

Finally, employees who are not able to receive the Covid 19 vaccine for legitimate medical reasons, may be protected from having their employment terminated for refusing to receive a Covid-19 vaccine, thanks to the State and Federal Anti-Discrimination legislation. Such a medical condition could fall under the definition of a ‘disability’ under that legislation, and imposing a blanket policy requiring all employees to be vaccinated against Covid 19, that doesn’t factor in an employees ‘disability’ is arguably indirectly discriminatory: because an employee with a medical condition that prevents them from receiving the Covid 19 vaccination, is not able to comply with the direction in the same way other employees can.  However, an employer is only required to make ‘reasonable adjustments’ for people with a disability in the workplace, under the anti-discrimination legislation.

Again, as with the above discussion regarding reasonable alternative employment opportunities, ‘reasonable adjustments’ could include working from home or on alternative duties away from client-facing roles.  However, an employer is not required to make reasonable adjustments to accommodate an employee’s disability if the required reasonable adjustments would impose an unjustifiable hardship on the employer (for example, that the cost of an adjustment would be prohibitive).

Disclaimer: This article is intended to provide general information to the reader. It is in no way intended to and does not constitute legal advice and should not be relied upon as such. An employee or employer should obtain specific legal advice prior to taking any action with regard to any termination decisions and should not rely on this article.

Conditsis Lawyers has been named as a finalist in the Lawyers Weekly Australian Law Awards for Regional Law Firm of the Year.

The Australian Law Awards is the pinnacle event in Australia for recognising and rewarding dedicated and hard-working legal professionals. Now in its 21st year, and also coming off the back of the turbulent year that was 2020, it gives us reason to celebrate the accomplishments of leading legal professionals more than ever.

Attaining a prestigious accolade from this well-respected event serves as a testament to the outstanding effort and contributions these legal professionals bring with them each and every day.

The finalist list, which was announced on 29 June 2021, features over 350 high-achieving leaders within the legal industry, across 38 submission-based categories.

Lawyers Weekly editor Emma Ryan congratulated all of the finalists for this year’s event.

“The Australian Law Awards is the largest and most-coveted awards ceremony hosted by the team at Lawyers Weekly, with this year shaping up to be the biggest yet,” Ms Ryan said.

“The finalists recognised across the 38 categories are among the best in their field, displaying supreme skills and a passion for their respective practice areas.

“After a year like no other, we are so pleased to be able to bring this event to an exciting format, with its 21st birthday representing a great opportunity to highlight the fantastic work being carried out by legal professionals across Australia.

“On behalf of the team, we’d like to congratulate all of the finalists of this year’s Australian Law Awards.

“We can’t wait to celebrate with you all soon.”

Manny Conditsis, Director at Conditsis Lawyers, said that he was humbled for the firm to be recognised and proud to be named as a finalist in the Australian Law Awards 2021.

Conditsis Lawyers recognition for our excellent contribution to the industry reinforces the strength of our service and dedication to connecting with the community and engaging with clients,” he/she] added.

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[1]. 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.

[1] 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.