Earlier this week, a Full Bench of the Fair Work Commission upheld the dismissal of an employee who refused to be vaccinated for influenza, despite a public health order in NSW.  

You can view the decision here.  

The employee – who claimed to have adverse reactions to the flu vaccine – was not permitted by her employer to enter the aged care facility where she worked because of NSW Government requirements in relation to the influenza vaccine.  

These requirements prevent unvaccinated people from entering aged care facilities in NSW.  

The Full Bench upheld the decision at first instance that the dismissal was not unfair, and the employer had a valid reason for dismissal as the employee could no longer perform the inherent requirements of the job amongst other factors.  

Although not related to COVID-19 vaccinations, the Full Bench decision is likely to influence future unfair dismissal decisions relating to COVID-19 mandatory vaccination requirements in Victoria.  

While it is a welcome decision, it does not provide an unrestricted ability for employers to terminate employees for refusal to receive a COVID-19 vaccine.  

We strongly encourage any members dealing with employees that are vaccine hesitant to contact the MBV EIR team prior to making any decisions.  

We recommend that members have open dialogue with employees about their vaccine concerns, consider alternative working arrangements, and potentially explore any paid or unpaid leave arrangements before any final decisions are made about a worker’s ongoing employment.  

MBV's EIR team can be reached on (03) 9411 4555.