Aged care worker sacked for refusing flu vaccine has unfair dismissal claim rejected

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 last week and Commissioner Donna McKenna found that the employer was rasonable 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 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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