An aged care receptionist who refused the flu vaccination because of what she believed to be a previous allergic reaction was not unfairly dismissed, the Fair Work Commission has held.

Ms Kimber was a receptionist for the employer, Sapphire Coast Community Aged Care Ltd. She was dismissed for failing to have the flu vaccination in 2020. At the relevant time, the flu shot was mandated for aged care workers under a NSW public health order.

Ms Kimber had refused the shot because, in 2016, she developed severe skin inflammation and a burning sensation and her “internal organs were also affected”. This condition persisted for 10 months and Ms Kimber considered that it was a result of receiving the flu vaccination. However, the medical evidence did not support this conclusion.

In considering whether the dismissal for failure to follow a “lawful and reasonable direction” was valid, Commissioner McKenna found that the employer had not in fact “directed” Ms Kimber to have the flu vaccination. Nonetheless, the employer had made it clear that having an up-to-date flu shot was necessary for attendance at work. The employer had been navigating complex government advice and public health orders in 2020. The Commissioner found that if a direction had been given to Ms Kimber to be vaccinated, it would have been lawful and would have effectively reflected what was the law as it applied in 2020 concerning employees working in NSW residential aged care facilities. Such a direction would also have been reasonable.

The Commissioner also found that without the flu vaccination, Mr Kimber could not perform the inherent requirements of her job because she was not permitted to be on aged care premises under the existing public health orders. There was no evidence that Ms Kimber could have worked from home.

Accordingly, there was a valid reason for the dismissal. The unfair dismissal application was dismissed.

Source: Jennifer Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWC 1818, 29 April 2021.