Whilst the majority of Australian adults have submitted to state mandates for COVID-19 vaccination, a minority holds out either on the bases that the mandates are unlawful and invalid or are likely to end.
There is no indication yet that a Court will find that vaccine mandates, whether operating within specific industries or generally, are unlawful and invalid.
Therefore people who have not been vaccinated will have to hope that they can “out run” the mandates requiring them to be vaccinated.
The idea, however, that an employer should indefinitely stand down an employee who is not vaccinated, in circumstances where a vaccination policy and mandate apply, was given short shrift in Shepheard v Calvary Health Care T/A Little Company Of Mary Health Care Limited [2022] FWC 92.
Ms Shepheard was a part-time care service employee at a residential aged care facility in New South Wales.
On 22 July 2021 Calvary implemented a mandatory COVID-19 vaccination policy.
On 26 August 2021 Ms Shepheard also became subject to the Public Health (COVID-19 Aged Care Facilities) Order 2021, which specified that an employee of an aged care facility operator not enter or remain at an aged care facility unless the employee had received a least one dose of a COVID-19 vaccine by 9.00 am on 17 September 2021.
By 15 September 2021 Ms Shepheard had made it clear to Calvary that she did not intend to comply with the policy or the public health order with the result that Calvary terminated her employment.
At the hearing of her unfair dismissal application Ms Shepheard argued, amongst other things, that there was not a valid reason for the termination of her employment because Calvary should have stood her down on unpaid leave until the public health order expired.
As to this point, Deputy President Saunders had this to say [at 32]:
I do not consider that there would have been any real utility in standing Ms Shepheard down for an indefinite period in circumstances where even the absence of a public health order would not have altered Calvary’s obligation to take reasonable steps to ensure the health and safety of its employees, as well the vulnerable residents of [the aged care facility]. Calvary’s mandatory vaccination policy had been introduced to address those risks. I do not consider that there was … any realistic likelihood that Calvary would change its policy in the foreseeable future to no longer require its care staff to be vaccinated against COVID-19”.
If you would like advice on any aspect of workplace litigation but in particular as to how vaccination policies and public health orders operate in the workplace please call our team on (03) 9614 7111 or email us at melbourne@nevettford.com.au.