| [2022] FWC 1139 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Evelyn Paul
v
Ozcare
(U2021/8169)
COMMISSIONER SPENCER |
BRISBANE, 12 MAY 2022 |
Application for an unfair dismissal remedy – mandated influenza vaccination – medical contraindication to influenza vaccine – community aged care – not able to perform inherent requirements of job – consultation undertaken – dismissal not harsh, unjust or unreasonable – application dismissed.
[1] Ms Evelyn Paul (the Applicant) lodged an application to the Fair Work Commission (the Commission) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging that the termination of her employment by Ozcare (the Employer/the Respondent) was harsh, unjust and unreasonable.
[2] The Respondent is a not-for-profit organisation that provides client support, home care to 13,000 clients across Queensland. The Respondent advised that all of its clients receiving home care are aged 65 years and over, 8,000 of whom are aged 75 years and above. The Respondent employed the Applicant on 11 May 2010, as a Clinical Nurse in the Community Health Program at their Mackay operations. The Applicant was dismissed from her employment after 11 years of employment, for the failure to meet the Respondent’s direction to receive the influenza vaccination. The Applicant argued she had a medical exemption to the influenza vaccination requirement.
[3] The Applicant initially sought reinstatement, later amending the remedy sought to compensation pursuant to s.392 of the Act.
[4] The matter was heard in Mackay, Queensland; all witnesses (except one) provided their evidence in person. The Applicant was represented by Ms Anne-Maree Roche, Industrial Officer of the Australian Nursing and Midwifery Federation – QNMU Branch (the QNMU/the Union), assisted by Ms Kate Angell, Secretary of the QNMU. The Respondent was represented, with permission by Mr Jim Murdoch, of counsel, instructed by Mr Murray Procter, Partner of FAC Lawyers. The Union did not object to legal representation.
[5] Permission was granted pursuant to s.596 (2)(a) (taking into account the complexity of the matter and issues of efficiency with the proceedings) for the Respondent to be legally represented, with the consent of the Applicant. Prior to the Hearing, the Applicant then raised an objection to the Respondent being represented by counsel. The parties were advised that in line with the Full Bench decision of NSW Bar Association v Brett McAuliffe, 1 once permission to appear has been granted, the permission applies, irrespective of the level of representation obtained.
[6] Directions were set for the filing of evidence and submissions. Additional submissions were filed following the Hearing, in accordance with consent Directions, set by the parties.
[7] The Applicant commenced employment with the Respondent on 11 May 2010, initially engaged as a Registered Nurse, and was appointed as Clinical Nurse on 29 April 2013. The Applicant was dismissed from her employment on 18 August 2021 for the failure to receive a mandated influenza vaccination. The Applicant submitted that this was due to medical grounds.
[8] The Applicant submitted that she had been diagnosed in 1983 with Guillain-Barre syndrome (GBS), which provided a contraindication for the influenza vaccine. In summary terms the Applicant’s case was that reasonable accommodations could have been made to her job, so that she could undertake the role with limited contact to clients. Therefore, she should not have been required to receive the influenza vaccine. The Employer disagreed and stated that the Applicant’s role required direct client contact and to undertake her role without the influenza vaccination presented a significant risk to the Respondent’s clients, (particularly in combination with the risk associated with Covid-19). The events leading up to the Applicant’s dismissal are outlined in detail below.
[9] The Respondent sent correspondence to the Applicant on 8 April 2020, which advised that important measures were being implemented for employees. The letter, signed by Mr Anthony Godfrey, the Respondent’s Chief Executive Officer (Mr Godfrey) stipulated as follows:
“Dear Evelyn,
Thank you for being a valued employee of Ozcare. I am writing to advise you of two important measures we are implementing for employees given the current coronavirus (COVID-19) situation. These measures will help ensure we continue to protect our clients and help stop the spread of COVID-19, while ensuring business continuity for Ozcare.
Mandatory Influenza Vaccination
Due to COVID-19 and the duty of care we have to our clients, we have updated our Employee Immunisation Policy (IPC 015) to make influenza vaccinations mandatory for all employees working in our residential aged care facilities, and all employees working our community care services that have direct client contact.
Ozcare will provide your influenza vaccination to you at no cost. Vaccination clinics are now being scheduled at your local branch or facility and you are required to have your influenza vaccination as soon as possible and prior to 1 May 2020.
If you are unable to comply with this direction due to a medical condition, you must provide supporting evidence by 1 May 2020 to…(redacted).
Annual Leave
Due to COVID-19 we have experienced fluctuations in the demand of our services. As a result, it may be necessary for us to instruct employees to take periods of annual leave as the volume of work changes.
Under clause 6.1.6 of the Ozcare Enterprise Agreement, Ozcare is able to instruct employees to take annual leave with 28 days’ notice. Please take this letter to serve as notice for the next three to six months.
Thank You
I would like to reassure you that Ozcare is well-placed to see this situation through and I thank you for your continued support.
On behalf of the Ozcare board and leadership team, I would also like to thank you for your hard work and commitment to caring for your community. The work you do is invaluable, now more so than ever, and we are very proud of your efforts and your dedication to helping us serve and protect our clients.”
[10] On 17 April 2020, the Applicant provided a medical certificate to the Respondent which certified that the Applicant “has a history of Guillain-Barre syndrome” and after discussions and due consideration, (the Applicant’s general practitioner) Dr Patricia Wong advised she felt “it would be detrimental for Evelyn to have the flu vaccination”. Mr Warhurst, Group Manager People for the Respondent, responded to the Applicant’s medical certificate, by email, on 20 April 2020 as follows:
“Thank you for providing the information about the medical reasons you are unable to receive the influenza vaccination.
As stated in Anthony Godfrey’s letter, we have a duty of care to protect our elderly and vulnerable clients living in our aged care facilities and out in the community. We need to do everything possible to ensure they stay safe and well during the COVID-19 pandemic and into the future.
Queensland’s Chief Health Officer, Dr Jeannette Young, has issued directions pursuant to s362B of the Public Health Act 2005, stating employees cannot enter a residential aged care facility from 1 May 2020 if they do not have an influenza vaccination.
As per the direction above, it is not only our legal responsibility, but also our moral responsibility to ensure we safeguard all our clients. It is now an inherent requirement of your role that you must be immunised annually against influenza.
Unfortunately, if you are not immunised against influenza you will become a non-vaccinated employee which means from 1 May 2020 you will no longer be rostered to work with Ozcare or permitted to enter our premises.
In the interim you can access any personal (sick) or other accrued leave entitlements to cover your period of absence whilst you are unfit to attend work. At this stage, we are unable to advise you how long that will be for.
In consultation with your Manager we will be in contact to discuss your specific circumstances and can answer any questions you may have about the information I have provided.”
[11] The Applicant was granted permission to continue working from home until 28 May 2020. However, the Applicant did not continue working beyond 14 May 2020, when she stated that she was too distressed by the insistence that she have the influenza vaccination, despite her medical contraindication.
[12] On 5 March 2021, the Respondent wrote to the Applicant’s union representative, Ms Roche, advising as follows:
“I write to you in relation to Ms Evelyn Paul.
Background
As you know, from 1 May 2020, Ozcare have not permitted any employees to work with clients unless they are vaccinated against influenza, regardless of the reason an employee has declined the vaccination.
Immunisation of employees against vaccine-preventable diseases is an essential component of Ozcare Infection Prevention and Control Program. The Program is instituted, in part, to comply with Ozcare’s obligations under section 19 the Work Health and Safety Act 2011 (Qld) to ensure, so far as reasonably practicable:
a) the health and safety of workers, including those who are in contact with our clients; and
b) the health and safety of other persons at the workplace, including our clients and visitors who attend the workplace.
Ozcare considers it is an inherent requirement of Ms. Paul’s role that she be able to perform her duties safely and without risk to herself or others. The role of a Clinical Nurse in the community setting is in direct contact with our vulnerable clients and exposed to bodily fluids and tissue. As such, as an unvaccinated employee, Ms. Paul may be exposed to and infect others with influenza.
Medical advice
On 17 April 2020, Dr Wong provided medical advice to Ozcare that it would be detrimental for Ms. Paul to have the influenza vaccination as she suffers from Guillain-Barre syndrome.
We sought your permission for Dr Andrew Lingwood, Consultant Occupational and Environmental Physician to speak with Dr Wong regarding Ms. Paul’s medical condition, however Ms Paul did not agree to this.
On 8 June 2020, Ozcare accepted the advice from Dr Wong that Ms Paul is unable to be safely vaccinated against influenza.
Ms Paul has not been rostered to work since 14 May 2020. Since 25 January 2021, Ms Paul has been on unpaid leave, having exhausted all of her accrued paid entitlements.
On this basis, Ozcare considers that Ms Paul continues to be incapable of performing her employment. As you may be aware, section 352 of the Fair Work Act 2009 makes it unlawful for Ozcare to terminate Ms Paul’s employment at this time. Accordingly, Ozcare does not intend to terminate Ms Paul’s employment now. Ozcare will continue to conduct reviews of Ms Paul situation, with the next scheduled review to occur in May 2021.
Should you or Ms Paul have any suggestions about reasonable adjustments Ozcare may make to her substantive role to accommodate the risk identified above, please let us know.
We understand this is a difficult time for Ms Paul. Ms Paul is able to access Ozcare’s Employee Assistance Program 24 hours per day, 7 days per week. To access this service, Ms Paul can contact them directly on (redacted).
I look forward to hearing from you.
Kind regards
Brett Warhurst
Group Manager People”
[13] Ms Roche replied to the correspondence on 15 March 2021, in an email addressed to Mr Brett Warhurst, the Respondent’s Group Manager People (Mr Warhurst) in which she advised as follows:
“The QNMU refers to your letter dated 5 March 2021 in which you note our member, Evelyn Paul had not be rostered to work since 14 May 2020 and had commenced unpaid leave 25 January 2021. Your letter notes that “section 352 of the Fair Work Act 2009 makes it unlawful for Ozcare to terminate Ms Paul’s employment at this time. Accordingly, Ozcare does not intend to terminate Ms Paul’s employment now”. (emphasis added).
This reference appears to imply once Ozcare considers it no longer unlawful to do so, Ms Paul’s employment will be terminated.
As previously discussed and detailed in correspondence, Ms Paul has not been rostered to work since 14 May 2020 as she was stood down by Ozcare and required to take all her paid leave, due to medical contraindication to the influenza vaccination.
Ms Paul continues to be stood down on unpaid leave.
Ozcare determined, for no apparent reason, that having the influenza vaccination is an inherent requirement of Ms Paul’s employment in Ozcare’s Mackay Community Care program, despite:
1. Ms Paul working in this program for 10 years without being required to have the influenza vaccination and there being no adverse outcomes, for clients or colleagues, as a result;
2. Ms Paul having little to no direct contact with clients at the time such vaccination became an “inherent requirement” of the role; and
3. The Queensland Chief Health Officer’s Direction applying, at the time and currently, to residential aged care facilities as well as having a specific exemption for employees with a medical contraindication.
Therefore, in response to your request to advise of “any suggestions about reasonable adjustments Ozcare may make to (Ms Paul’s) substantive role to accommodate the risk identified” the QNMU submits “reasonable adjustments” were in place at the time Ms Paul was stood down and required to take all her paid leave and can continue because:
1. Since June 2017 to present, Ozcare has accepted and requested Ms Paul undertake higher duties on a permanent basis which involves minimal face-to-face client contact on an ad hoc basis.
It is possible for this role to be further reasonably adjusted to avoid all direct client contact.
Hence there would be no risk to clients of the service.
2. All other staff in the Mackay Community Care Program are vaccinated against Influenza. As a consequence, Ms Paul poses minimal to no risk to her colleagues.
3. From 30 March 2020 to 1 February 2021 Ozcare staff were working remotely, including Ms Paul from 30 march 2020 to 13 May 2020.
Therefore, at the time of being stood down, on the basis of her medical contraindication to the influenza vaccination, Ms Paul was working from home.
For the whole period Ms Paul was required to take her paid leave she could been working from home.
These factors support that only “reasonable adjustment” required of Ozcare is to allow Ms Paul to return to her role and continue working from home.
Regards
Anne-Marie Roche”
[14] On 26 March 2021, the Respondent responded to Ms Roche as follows:
“Ozcare does not agree that it updated its immunisation policy to require influenza vaccinations for “no apparent reason”. I refer to my letter of 5 March 2021 and Ozcare’s previous communications with Ms Paul on 3 April 2020 and 8 April 2020 in this regard.
In response to your suggestion it is reasonable to allow Ms Paul to resume her usual role as an unvaccinated employee:
1. Ozcare has never agreed Ms Paul would undertake higher duties with minimal client contact. Ozcare also does not agree it would be reasonable to adjust Ms Paul’s role to avoid all direct client contact. Ms Paul is employed as a Clinical Nurse. In this role she is required to have direct contact with clients and manage the supervision of Registered Nurses whilst they are performing their role (in direct contact with clients). To remove the requirement for Ms Paul to have direct contact with staff and clients would fundamentally alter the position such that she would not be working as a Clinical Nurse at all. In fact, to do so would require creation of a role that does not otherwise exist and has no operational basis. It is not a reasonable adjustment.
2. Ozcare requires staff to be vaccinated against influenza to reduce the risk of our employees infecting our clients with influenza. Our community care clients are vulnerable and at increased risk of influenza morbidity. As such, the fact all staff at the Mackay Community Care Program are vaccinated is not to the point. As an unvaccinated employee, Ms Paul can present a risk to clients with whom she is in contact.
3. Ozcare’s administrative staff (who are not in client facing roles) were permitted to temporarily work from home in 2020 and did so initially in response to government advice. Ozcare could not continue operating if staff in client facing roles were permitted to work from home permanently. Ms Paul was permitted to work from home for a period of two weeks in May 2020 only whilst further investigations into her medical condition were being undertaken. However, for the reasons explained at point 1 above, it was not and is not practicable for Ms Paul to work from home on a permanent basis. This would essentially remove the requirement for Ms Paul to provide care to clients and supervise Registered Nurses in the performance of their duties. Ozcare does not consider any of their nursing positions can be reasonably performed from home.
Ozcare previously sought permission from Ms Paul for Dr Lingwood, Consultant Occupational and Environmental Physician, to speak with Dr Wong, Ms Paul’s treating medical practitioner. It is possible that, through that process, Ms Paul and Ozcare might receive confirmation (or otherwise) of Dr Wong’s diagnosis that Ms Paul has an accepted contraindication to the influenza vaccine. Ms Paul declined this offer.
The influenza vaccination is a genuine occupational requirement of staff in client facing roles at Ozcare. Should Ms Paul’s medical status be such that she is able to be safely vaccinated against influenza, she will be capable of performing her role as a Clinical Nurse. So, if Ms Paul is interested in further investigations into her ability to receive the vaccine, Ozcare maintains its offer for Dr Lingwood to consult with Dr Wong with Ms Paul’s permission. If Ms Paul is interested in this further investigation regarding her ability to have the vaccine, please let us know.”
[15] The Applicant denied that she declined the offer to meet with Dr Lingwood. As the matter evolved Dr Lingwood clarified that he could not provide a direct medical consultation to her.
[16] On 14 May 2021, the Applicant was presented with a Show Cause letter requesting that she show cause why her employment with the Respondent should not be terminated for her failure to meet the ongoing requirements of her role to receive an influenza vaccination. The show cause letter, signed by Mr Warhurst, stipulated as follows:
“This letter is to inform you that you have an opportunity to show cause as to why your employment with Ozcare should not terminate on the basis you fail to meet the ongoing requirements of your role that you receive an annual influenza vaccination. The relevant background is as follows.
1. In April 2020, Ozcare updated its Employee Immunisation policy to require all staff in client facing roles to be vaccinated against influenza from 1 May 2020. The reasons for the introduction of this requirement and the consequences for failing to comply have been communicated to you in writing on numerous occasions, including on 3 April 2020, 8 April 2020, 20 April 2020, 8 June 2020 and 5 March 2021. Ozcare also discussed these matters with you by telephone on 24 April 2020 and 3 June 2020.
2. You declined the influenza vaccination and on 17 April 2020, and provided Ozcare with a medical certificate from Dr Patricia Wong which stated that due your previous history of Guillain-Barre syndrome, Dr Wong was of the view that the influenza vaccination would be “detrimental” for you.
3. On 24 April 2020, Ozcare sought your permission for Occupational and Environmental Medicine Consultant, Dr Andrew Lingwood, to discuss your circumstances further with Dr Wong, which you declined. On 25 March 2021, Ozcare against sought your permission (through the QNMU) for Dr Lingwood to discuss your circumstances with Dr Wong, and Ozcare did not receive any response.
4. As you have not been vaccinated against influenza, you have not been permitted to enter Ozcare’s premises (including your normal place of work, the Mackay Community Health Office) since 14 May 2020. Ozcare permitted you to work from home on a temporary basis in the period 14 May 2020 to 1 June 2020 whilst you gave further consideration as to whether you would have the influenza vaccination, and Ozcare considered your medical circumstances. Since 2 June 2020, you have remained on paid leave and on 25 January 2021, you commenced unpaid leave.
5. Whilst you remain unvaccinated, Ozcare does not consider there are any reasonable adjustments which it can make your substantive role of Clinical Nurse, including for the reasons set out in Ozcare’s letter of 26 March 2021.
6. Ozcare understands that you intend to maintain your objection to the vaccination requirement, having regard to Dr Wong’s medical opinion. Ozcare also understands that you are not interested in any further investigation regarding your ability to have the influenza vaccine.
Ozcare is considering terminating your employment due to your continued absence in the above circumstances.
Request for response
Ozcare would like to hear from you and consider your response before we make any decision about your employment. We would appreciate your response to the matters raised in this letter by 5:00pm Friday 28 May 2021.
If we do not hear from you by this time, Ozcare will make a decision based on the information available to it…”
[17] The QNMU responded to the Show Cause letter on the Applicant’s behalf, by email, on 4 June 2021. The email, addressed to Mr Warhurst, stated that:
“Essentially the reason for Ms Paul’s continued absence in her inability to comply with Ozcare’s recently changed “Employee Immunisation Policy” requiring all employees to have the influenza vaccination.
This letter provides Ms Paul with an opportunity to respond to the proposal before a final decision is made. Ms Paul relies on previous correspondence in relation to this matter, in particular the attached email dated 15 March 2021, which the QNMU sent on behalf of Ms Paul in response to your letter dated 5 March 2021.
The QNMU submits there are “reasonable adjustments” Ozcare can make to allow for Ms Paul’s continued employment as a Clinical Nurse (CN).
Despite the generic CN position description applicable to Ms Paul’s substantive CN role, her day-to-day duties have been office based for the past two years up to and including 14 May 2020 when she was required to deplete all her leave because she could not have the influenza vaccination.
Further, Ms Paul advises, from 30 March 2020 until 14 May 2020 she was working from home as were other Ozcare staff, with no negative impact on her capacity to perform her duties.
Ms Paul could continue to work from the office or partially from the home and office with minimal to no client interaction.
On behalf of Ms Paul, the QNMU reiterates she is not refusing the influenza vaccination because she has no “objection to the vaccination requirement”.
Ms Paul has a medical contraindication to the influenza vaccination in that she has a history of the auto-immune condition, Guillain-Barre syndrome as well as a strong family history of auto-immune and auto-inflammatory conditions about which she advised Ozcare in April 2020.
The QNMU further submits it is not correct that Ms Paul is “not interested in any further investigation regarding (her) ability to have the influenza vaccine” as maintained in your letter.
As a long-term employee, Ms Paul considered Ozcare would accept the advice of her treating general practitioner of 26 years and had initially declined Business Operations Manager, Ms Andrena Farlow and Health and Safety Manager, Mr Rohan McKay’s offer to seek advice from Ozcare’s Dr Lingwood.
Ms Paul subsequently agreed to seeking Dr Lingwood’s opinion regarding her medical contraindication.
However; Ms Paul was then advised by Mr McKay that Dr Lingwood could not provide such individual advice. (see attached correspondence)
At no time did Ozcare request Ms Paul to undertake further investigation regarding her medical contraindication.
In the circumstances the QNMU submits it would be harsh, unjust and unreasonable for Ozcare to terminate Ms Paul’s employment. …”
[18] The ‘attached correspondence’, as referred to in QNMU’s response to the show cause letter above, is in relation to the email correspondence sent by Ms Roche on 15 March 2021.
[19] The Applicant was sent for an Independent Medical Examination on 28 July 2021. An Independent Medical Report, in respect to this examination, was completed on 9 August 2021 by Dr Malcolm Wright (the IMR). In summary terms, the IMR confirmed the views of Dr Davies and that of the Applicant’s current general practitioner in Mackay, Dr Wong in respect to the administration of the influenza vaccination to the Applicant. In particular, the IMR stipulated that:
“Administering an influenza vaccine to Ms Paul would be contraindicated on the basis that while a recurrence of Guillain-Barre syndrome remains rare, the consequences could be disastrous and could result in a very severe disease and potentially death from the consequences of respiratory paralysis.”
[20] On 18 August 2021, the Applicant was issued with a Termination Letter, which set out as follows:
“Dear Evelyn,
As you know, on 14 May 2021, Ozcare wrote to you asking you to show cause why your employment should not terminate on the basis you fail to meet the ongoing requirement of your role to receive an annual influenza vaccination.
On 4 June 2021, you provided a response which noted, amongst other things, you had never been asked to undertake further investigation as to the medical reasons for your objection. Your response also noted further medical reasons as to why you were unable to have the influenza vaccine, but no medical evidence was provided in support of those reasons.
Following that response, Ozcare asked you to attend a medical assessment with Dr Malcolm Wright on 29 July 2021 as regards to your ability to have the influenza vaccination.
Dr Wright has advised Ozcare that you reported suffering a reaction to the vaccine in 1983 (resulting in a diagnosis of Guillain-Barre syndrome) and as a result, influenza vaccination is not recommended for you now or in the future. A copy of Dr Wright’s report is enclosed, for your records. If you have any questions or comments on the report, please let me know.
Ozcare have carefully considered Dr Wright’s advice, and the other matters raised in your response of 4 June 2021, including:
1. You say that the reason for your continued absence from the workplace is because of your inability to comply with the Employee Immunisation Policy. Although this is unfortunate, given the industry in which Ozcare operates, and the vulnerabilities of Ozcare’s clients, Ozcare does not intend to amend its policy to allow exemptions to the vaccination requirements, for any reason. Having regard to Dr Wright’s report (and consistent with your position to date), Ozcare anticipates that you will continue to decline the influenza vaccination in the future.
2. You suggest there are reasonable adjustments that can be made to your position as Clinical Nurse (on the basis you would work as an unvaccinated employee), including:
a. home working,
b. minimal to no client contact when working in the office, and
c. as otherwise outlined in your email of 15 March 2021.
We disagree that these are reasonable adjustments for the reasons outlined in our letter of 26 March 2021.
We remain in the unfortunate position where you will not (based on medical advice) receive the influenza vaccination, and Ozcare is not willing to permit you to work in the position of Clinical Nurse as an unvaccinated employee. You have not been rostered to work 14 May 2020 and it is unlikely you will be rostered to work again.
There are no other roles available within Ozcare that we can offer you which would allow you to work as an unvaccinated employee.
Regrettably, this means your employment will terminate on 18 August 2021. You will receive a payment in lieu of your notice period, being 5 weeks wages.
This is not a decision Ozcare have made lightly and we understand this will be disappointing for you.
Ozcare thanks you for service and wishes you all the best in the future.
Kind regards
Brett Warhurst
Group Manager People”
[21] Pursuant to s.394 of the Act:
“394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.
Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.
Note 2: For application fees, see section 395.
Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.
(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.”
[22] Further, ss.385 and 387 of the Act relevantly provide as follows:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
[23] As to any remedy to be ordered, s.390 of the Act provides:
“390 When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) The FWC may make the order only if the person has made an application under section 394.
(3) The FWC must not order the payment of compensation to the person unless:
(a) the FWC is satisfied that reinstatement of the person is inappropriate; and
(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.
Note: Division 5 deals with procedural matters such as applications for remedies.”
[24] Furthermore, s.392 of the Act provides:
“392 Remedy—compensation
Compensation
(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the FWC considers relevant.”
[25] Section 352 of the Act states:
“Temporary absence--illness or injury
An employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.”
[26] The Applicant submitted that she was unfairly dismissed and originally sought reinstatement to her position of Clinical Nurse. However, the Applicant later submitted that reinstatement is no longer appropriate, when considering all of the circumstances of her termination. The Applicant sought compensation for wages lost since the date of her termination, the withdrawal of her dismissal, to be allowed to resign with a statement of service, and any other order the Commission considers appropriate. It was recognised by the Union that a range of the items sought were not within the jurisdiction of the Commission to award on arbitration. The Applicant’s representative later provided a revised compensation submission (as per the Directions), which sought compensation in the amount of $21,073.56.
[27] The Applicant noted that she was dismissed on 18 August 2021, with immediate effect, due to her inability to comply with the requirement to have the influenza vaccine because of a medical contraindication, namely Guillain-Barre syndrome (GBS). The Applicant contended that all verbal and written communication from the Respondent indicated that her dismissal was related to this reason and not her conduct. The Applicant submitted that the Respondent was unwilling to allow any exemption to the requirement to have the influenza vaccine. Further it was submitted that, the Respondent stated that the Applicant’s role as Clinical Nurse in the Community Care Program could not be reasonably adjusted, to allow the Applicant to continue her role as an unvaccinated employee.
[28] The Applicant agreed she had an obligation to follow a lawful and reasonable direction of the Respondent, and that the Employee Immunisation Policy (the Immunisation Policy) may be lawful. However, the Applicant submitted that the Policy is unreasonable to the extent that it does not allow for an exemption from the vaccination based on a medical contraindication.
[29] It was the Applicant’s view that the direction that all employees be vaccinated against influenza, with no exceptions, was unjust and unreasonable. In addition, the Applicant argued that reasonable modifications could be made to her job to continue her employment. The Applicant accepted that the rationale for the policy is to protect vulnerable clients from contracting strains of influenza, for which a current vaccine is available. The Applicant argued that the Respondent has a duty of care to protect elderly and vulnerable clients, living in aged care facilities. However, the Applicant submitted that the Respondent’s duty of care is not negatively impacted by the Applicant not taking the vaccine due to a medical contraindication. This argument was based on the Applicant’s duties, where she submitted that she has minimal direct client contact, and all her colleagues who have direct client contact, are vaccinated, resulting in little likelihood of her contracting or spreading influenza.
[30] The Applicant contended she has successfully performed her role in the past 10 years without having the influenza vaccination, and her medical circumstances were previously accepted by the Respondent as being a valid reason for declining the vaccine. The Applicant stated that she had provided further medical evidence supporting her inability to take the vaccine and noted that the IMR cautioned against the Applicant having the influenza vaccination due to potential, serious consequences which can include potential death. The Applicant submitted that these factors distinguish her inability to have the vaccination from the reasons argued in previous related vaccination matters determined by the Commission, as not being unfair dismissal.
[31] For example, it was submitted that in the decisions of Bou-Jamie Barber v Goodstart Early Learning (Barber) 2 and Maria Clover v Ozcare (Clover),3 the Applicants in both cases, were unable to provide sufficient evidence to support a claim of medical contraindication. The Applicant further differentiated her circumstances from the decisions of Clover and a decision of the Full Bench in Kimber v Sapphire Coast Community Aged Care Ltd4 where the Applicant’s role required daily contact with the vulnerable clients. In consideration of the above, the Applicant submitted that the termination is unjust and unreasonable.
[32] The submissions regarding matters relevant to s.387 and s.392 are considered later in this decision.
Summary of the witness evidence
[33] The Applicant advised that on 19 June 2017, she was appointed to the second in charge (2IC) role. Whilst still a Clinical Nurse, the Applicant said she was responsible for the management of the community nursing team, which was predominantly an office based administrative role, with limited direct client contact, but was a largely client based role. This role included managing the clinical oversight of nurses who visit clients. The Applicant said this can be supported through her timekeeping records. The Applicant advised that the role description for a Clinical Nurse is generic, across the organisation, in which the daily duties are tailored to the requirements of each Branch. In June 2019, the Applicant recalled submitting a request for her role description to be reviewed, so that it may reflect the change in her daily tasks. However, this request was declined.
[34] On 30 March 2020, the Applicant, and many other employees, commenced working remotely at home, due to the COVID-19 pandemic. The Applicant continued working remotely until 14 May 2020, when she then took personal leave due to her inability to have the influenza vaccination. The Applicant noted that during her employment, she had not been offered the influenza vaccine in the past, due to her history of Guillain-Barre syndrome (GBS). The Applicant explained that she has a strong family history of several rare conditions and her general practitioner of 26 years, advised against her taking the vaccination, specifically due to her medical history.
[35] In relation to the Government’s and Employer’s Health Direction, regarding vaccination of employees in residential aged care centre, the Applicant noted that each direction provided an exemption for medical contraindications. However, as stated in the Respondent’s standard letter to all employees dated 8 April 2020, the changes to the Immunisation Policy meant that the influenza vaccination was mandatory for all employees, including those in community services that have direct client contact. The same letter required employees who were unable to comply with this direction, due to a medical condition to provide supporting evidence by 1 May 2020. The Applicant thought at this time, that she would continue to be exempt from taking the vaccine due to her medical contraindication and because she submitted that she had no direct client contact.
[36] The Applicant noted that the Respondent’s Memorandum dated 14 April 2020, further advised that it was an inherent requirement under the Immunisation Policy that, amongst others, all employees have an up-to-date vaccine from 1 May 2020. The Memorandum stipulated that employees may access their leave entitlements to extend their absence from 1 May 2020, which would be reviewed on a case-by-case basis, in discussion with affected employees. The Applicant stated as a result of this, she was concerned that she would require further medical evidence to support her exemption and therefore provided correspondence to the Respondent on 17 April 2020, outlining her General Practitioner’s medical opinion, that she should be exempt from the influenza vaccine, due to her history of GBS.
[37] Despite providing this medical evidence, the Applicant was advised by Mr Warhurst, in an email dated 20 April 2020, that she would not be rostered to work or be permitted to enter the premises as being vaccinated was an inherent requirement of her role from 1 May 2020. In the same email, Mr Warhurst reiterated the Public Health Directions, and that the Respondent has a legal and moral responsibility to safeguard their clients. The Applicant advised that she was an immunisation nurse, and therefore did not oppose vaccinations. However, she submitted that she understood that the need for “herd” immunity through vaccination, but that her refusal to take the vaccination was due to a genuine medical contraindication. It was her view, that as an immunisation nurse, a small number of staff members, like herself, who were unable to take the vaccine, due to a genuine medical contraindication, would not negate the overall benefit of the majority of staff being vaccinated.
[38] On 8 June 2020, the Applicant noted her medical advice had been received and she was advised to access her personal, and other, leave entitlements, with her employment status being reviewed in three months. The Applicant confirmed to access her leave from 14 May 2020.
[39] The Applicant advised that she found the entire process stressful and had asked the Respondent to communicate to her through Ms Roche. The Applicant said she was upset by the Respondent’s letter, dated 5 March 2021, as the Respondent was aware that she had minimal client contact in her role. Further, as all staff at the Mackay Community Care were vaccinated, she was of the view that she held a minimal risk to them and the clients they visited. However, as identified in the letter, dated 26 March 2021, from the Respondent. The Respondent disagreed with her view and found that even if all other staff were vaccinated, the Applicant presented a potential risk to clients.
[40] After Ms Roche noted in the response to the Show Cause letter, that at no time had the Respondent sought an independent medical assessment on the Applicant’s medical claim, the Respondent arranged a medical assessment with Dr Wright who was a General Physician and Intensive Care Physician. The assessment took place on 28 July 2021. The Applicant noted it was Dr Wright’s view that administering the influenza vaccination is contraindicated, because of the risk of recurrence of Guillain-Barre syndrome which, while rare, could have disastrous consequences, including potential death due to respiratory paralysis. However, the Applicant stated that on the basis of this report, the Respondent terminated the Applicant’s employment, effective immediately, on 18 August 2021.
[41] The Applicant viewed the termination as harsh, unjust and unreasonable, as she had a genuine medical contraindication to the influenza vaccine, and she was able to work with minimal contact with vulnerable clients. She advised that any potential risk to the Respondent’s clients or employees would have been further reduced by all of her former colleagues being vaccinated.
[42] Ms Brant was employed by the Respondent for 11 years, (ending in February 2021), at the Mackay Community Care Program. During her time with the Respondent, Ms Brant advised she was the Applicant’s line manager, initially as the Clinical Nurse Manager then subsequently as the Branch Manager. The Clinical Nurse Manager role technically ceased to exist, and Ms Brant continued to be the Applicant’s line manager, whilst the Applicant took over a component of Ms Brant’s former role.
[43] Ms Brant stated that she maintained responsibility for major reports, relevant for matters, such as contracts and government funding. The Applicant was responsible for the day-to-day clinical management of clients and staff. Ms Brant further confirmed that the Applicant is a nurse immuniser, and part of her duties was to immunise clients, as part of the Respondent’s immunisation services.
[44] When the Applicant commenced as a Clinical Nurse, Ms Brant recalled that at least 90% of the Applicant’s duties, did not include direct client contact. The Applicant however would on occasion have client contact activities, such as training or undertaking client service provision due to unexpected staff absences. However, the Applicant predominantly worked alone in a separate office at the back of the open plan administration area. During the COVID-19 lockdown in March 2020, Ms Brant advised that all Community Care staff were working from home. From around June 2020, and staff slowly returned to the office. Ms Brant recalled that field staff did not return to the office for some time, as this was to reduce any potential risk. Therefore, the physical location of items such as car keys in the office, were moved, so that field staff had very little contact with other staff members.
[45] Ms Brant confirmed that the position description for a Clinical Nurse, is generic across the organisation, with each branch tailoring the role to suit local needs. As the Branch Manager, Ms Brant considered she could have accommodated the Applicant’s need to have minimal physical contact with both field staff and clients, due to her inability to take the vaccination due to her medical history.
[46] Ms Northcroft had been employed as an Administration Office Manager with the Respondent’s Mackay Community Care Program for nine years from January 2012 to March 2021. Ms Northcroft confirmed that when working with the Applicant during this time, the Applicant worked alone in a separate office at the back of the open plan administration office area, immediately adjacent to Ms Northcroft’s desk.
[47] Ms Northcroft advised that for at least 6 years prior to May 2020, the Applicant worked completely in the office. She understood that the Applicant’s standard hours of work were 7:30am to 3:30pm from Monday to Friday, and the Applicant was often in her office whenever Ms Northcroft arrived at work at 8:30am and when she left at 5:00pm. To the best of her knowledge, Ms Northcroft believed that the Applicant’s role was to manage the administrative side of nursing care provided to clients. Ms Northcroft, however, confirmed she had no knowledge of whether the Applicant visited clients, before she commenced work.
[48] Ms Northcroft stated she was aware that the Applicant did not take the vaccination due to a medical reason. She further confirmed that all Community Care staff worked from home between March 2020 and May 2020. She was not aware at the time why the Applicant did not return to work after May 2020.
[49] In response to the Respondent’s submission regarding the immunisation policy having no exceptions, the Applicant submitted that the Respondent appeared to have misinterpreted the Public Health Directive. The Applicant contended that the directive allowed for exemptions for medical contraindications, which allowed for reasonableness. The Applicant further submitted that the term “available” in the context of a vaccination is available to a person, operating in a residential aged care facility, should be given a wide interpretation that considers health risks and other factors. In short, even though the Applicant was physically able to access the vaccine, it was medically unsafe for her to take it. Therefore, it was argued that the vaccine was not “available” to her.
[50] The Applicant submitted that the Immunisation Policy needed to be reasonable, and therefore was required to be flexible, where there is evidence of a medical contraindication. In addition, in support of her case, the Applicant’s evidence referred to the decrease in the number of clients she visited from 2018 to 2020, that other staff and the majority of clients are vaccinated, and therefore the Applicant had a legitimate reason for declining the influenza vaccination. The Applicant argued that the purpose of the Immunisation Policy, to protect vulnerable clients, must be balanced against its discriminatory effect on employees. The Applicant said that it is arguable that the policy amounts to discrimination, under relevant legislation, on the basis of a recognised, medical condition.
[51] The Applicant further submitted that the influenza vaccination, is not an inherent requirement for her role, similar to a nursing qualification. It was submitted that the vaccination had no bearing on the Applicant’s ability to carry out the core components of her role, and merely provided a level of protection for staff and patients where possible. The Applicant submitted she had been able to perform the role for 10 years, without a vaccine or declining to visit clients. She stated that other vaccination policies allow for exemptions on medical, or religious grounds, which demonstrated that vaccination is not an inherent requirement of a nursing role. The Applicant further advised that a stipulation in the employment contract, does not mean the particular requirement is an inherent requirement of the role. The Applicant submitted that the reference must be relevant to the function the employee performs, as part of the employee’s undertaking. Therefore, the Respondent’s action in updating the position descriptions and contracts to enforce the new policy does not, in themselves, make vaccinations an inherent requirement of the role.
[52] The Respondent submitted that the Applicant was dismissed for a valid reason, relating to her lack of capacity to undertake the role as required. The Respondent contended that the requirement of an influenza vaccination reduced, (so far as reasonably practicable), the risk of transmission of the influenza virus between its staff, clients in its care, and the community. It is the Respondent’s view that the vaccination requirement, having no exemptions, was a reasonable response to the hazard of transmitting influenza in the workplace. This position also had regard to the demographic of its clients and the Regulations they must comply with. Further, the Respondent emphasised (contrary to the Applicant’s submissions), that direct contact with staff and clients was an inherent requirement of the Applicant’s role as Clinical Nurse.
[53] The Respondent submitted that it was not reasonable to adjust the Applicant’s position to remove the requirement of direct contact with clients and staff. Alternatively, it was not reasonable to permit the medical exemption as it would create a risk to the health and safety of other employees, and most importantly, its vulnerable clients.
[54] The Respondent submitted that the Applicant’s dismissal was preceded by a 15-month period of consultation and the Respondent advised that at no point was the Applicant refused a support person. She did not perform work from 15 May 2020 to 18 August 2021, when she was dismissed. She was, however, permitted to take all of her accrued personal leave entitlements during this period.
[55] In response to the Applicant’s assertion that due to her medical contraindication, she could not comply with the requirement to be vaccinated, the Respondent advised that Dr Wright confirmed that the Applicant was not recommended to have the influenza vaccination either now, or in the future. It was submitted that it cannot be unreasonable to dismiss an employee holding the position of a Clinical Nurse, who would never be able to comply with the inherent requirements of this role. Whilst the Applicant sought an adjustment to her duties by removing direct clients from her role, the Respondent submitted that the direct client contact is a core function and an inherent requirement of her role. The Clinical Nurse in the Community Care Division must be able to visit clients in their homes, including for staff training, supervision purposes, assessment of individual client needs, management of critical incidents and backfilling where required. The Respondent did not find that the proposed adjustments were reasonable, and it would have required the creation of a role that did not exist, and was not operationally required.
[56] In response to the Applicant’s assertion that her dismissal was harsh due to economic and personal circumstances, the Respondent submitted that the Applicant is a competent registered nurse. Material filed by the Applicant demonstrated that she had been able to obtain alternative employment. The Respondent submitted that the Applicant has vast workforce experience within and outside of the Respondent’s organisation. Accordingly, she is not without skills and experience to use, in seeking other employment.
[57] In the circumstances, if the Commission finds the dismissal unfair, the Respondent submitted that compensation should be assessed as zero, as the Applicant would never have been able to comply with its requirement to be vaccinated.
[58] Mr Warhurst commenced employment with the Respondent on 23 April 2012, being responsible for overseeing the Human Resources department. He has held various job titles; his current title is Group Manager of People. His position is within the Executive Leadership Team and reports to Mr Godfrey, the Respondent’s CEO.
[59] Mr Warhurst provided evidence that the Respondent employs 3,771 staff, 200 volunteers and 700 student placements annually. The total workforce is comprised of 1,900 staff working in residential aged care, 1,427 in community home care, 69 in day respite centres, 80 in corporate support offices, 11 in retirement villages and 284 working at the Canossa Private Hospital. The workforce consists of various professions, such as nurses, care assistants, allied health professions, support workers, therapists, administrative and clerical employees, cooks, maintenance workers, bus drivers and coordinators.
[60] According to Mr Warhurst, before the onset of COVID-19, only employees with direct client contact and potential exposure to blood or bodily substances were required to be vaccinated against Hepatitis B. All employees were offered free influenza vaccination, but this was only recommended for staff. It was also recommended for staff to be vaccinated against measles, mumps, rubella, varicella and pertussis. A record of these vaccinations for employees would be kept by the Respondent, in accordance with contractual requirements.
[61] In 2016, Mr Warhurst advised that an immunisation declination form, was introduced. The form was intended to emphasise the importance of vaccinations and encourage as many individuals as possible to be vaccinated whilst also keeping a record of reasons why an employee declined the vaccination. The Applicant completed this form in 2018 and declined the influenza vaccination, due to her history of GBS.
The revision of the Flu Vaccination Policy post COVID-19
[62] Mr Warhurst recalled that a Public Health Emergency was declared on 29 January 2020 in relation to COVID-19 in Queensland. This outbreak led the Respondent to review their measures they had in place, in preparing and responding to the effects of the pandemic, or other infectious diseases, in the workplace. At the time, Mr Warhurst advised he had regular discussions with Dr Andrew Lingwood, a Consultant Occupational and Environmental Medicine Physician (Dr Lingwood) regarding COVID-19 and its impact on the organisation. However, there was little known about the virus at that stage other than it was a serious respiratory disease with no vaccines and that it could be fatal, spread quickly and a risk to those with compromised immune systems and the elderly.
[63] On 9 March 2020, Mr Warhurst recalled Mr Godfrey sending an organisation wide email with an update on COVID-19. The email emphasised that “the health and wellbeing of our clients and our staff and volunteers remained our number one priority”. Shortly after, on 18 March 2020, the Prime Minister issued a media statement advising that the transmission of COVID-19 was increasing rapidly and protecting and supporting elderly and vulnerable Australians is their priority. The Statement outlined restrictions on entry into aged care facilities, including that individuals not vaccinated against influenza after 1 May 2020 should not be permitted to enter the facility. On 21 March 2020, Queensland’s Chief Health Officer (the CHO) issued directions mandating influenza vaccination for visitors to aged care facilities.
[64] On 26 March 2020, Mr Warhurst advised he met with Mr Godfrey, and Mr Damian Foley, the Chief Operating Officer (Mr Foley) where they discussed mandating influenza vaccinations for all employees with direct client contact, and not just those working in residential facilities as mandated by the Government. Mr Warhurst explained that the basis of the discussions, was because those working in community care also dealt with the same type of clients as those in residential aged care facilities, performing similar work, and are often exposed to more clients. These employees could see numerous clients on any one day, and as such, the risk of transmitting infectious disease is greater as the Respondent has no control over who attends the client’s homes, and in turn any infectious disease to which their community care workers would be exposed to.
[65] Mr Warhurst stated he attended another meeting with Mr Godfrey and Mr Foley on 31 March 2020 where Mr Godfrey expressed that the Respondent had a responsibility, and the ability, to implement changes to protect their clients and prevent risks should the client contract both influenza and COVID-19. Therefore, to limit the risk, it was decided that it was necessary and appropriate to introduce mandatory influenza vaccination for all employees with direct client contact.
Implementation of mandatory influenza vaccination and the Applicant’s objection
[66] The Immunisation Policy was discussed and finalised by the senior executives on 2 April 2021. This meeting included Mr Warhurst, Mr Foley, Mr Russell Brighouse, Head of Community Care (Mr Brighouse), Mr Joel Reading, Group Manager, Risk and Compliance (Mr Reading) and Ms Lanna Ramsay, Head of Aged Care (Ms Ramsay). It was agreed at the meeting that in addition to staff, all volunteers and contractors entering the aged care facilities and students on placement would be required to have the vaccination. It was also agreed that anyone who refused the vaccination on any grounds, would not be rostered to work from 1 May 2020. Mr Godfrey notified the staff of the updated Immunisation Policy and the rationale behind this in an email on 3 April 2021. Staff were also advised that they would receive a letter with further information and were asked to be vaccinated by 1 May 2020. Similarly, all Registered Training Organisations that had placements with the organisations were notified of this requirement in an email sent on 6 April 2020.
[67] All staff were then provided an additional letter, signed by Mr Godfrey, which stipulated that any employee that was unable to be vaccinated, due to a medical condition, must provide supporting evidence by 1 May 2020. The Applicant received this letter dated 8 April 2020. Mr Warhurst recalled having many teleconferences with operational managers explaining the updated Immunisation Policy. He had sent an internal memorandum to all Facility Managers, Branch Managers and Day Respite Coordinators on 14 April 2020, providing instructions in relation to the influenza vaccination and non-rostering of employees who were not vaccinated.
[68] On 14 April 2020, Mr Warhurst said he spoke with Ms Brant and she raised that the Applicant was concerned about taking the vaccine due to her history of GBS. Ms Brant advised that the Applicant was going to speak with her general practitioner. Mr Warhurst said he contacted Dr Lingwood shortly after seeking advice regarding the safety of influenza vaccination for someone who had GBS. Dr Lingwood advised:
“…unless they have developed [GBS] within 6 weeks of a previous flu vaccination, current medical evidence does not support the notion that they should avoid vaccination… individuals may of course still wish to decline the vaccination, but unless they developed [GBS] within 6 weeks of a previous flu vaccination, this should be treated as a person choice that they are making and not due to a medical contraindication.”
[69] Mr Warhurst said he forwarded Dr Lingwood’s advice to the Applicant on 15 April 2020 and asked her to consider the information with her general practitioner. On 17 April 2020, however, the Applicant sent her objection to the vaccination to Ms Brant, which was forwarded to Mr Godfrey. The Applicant did not provide any information other than a medical certificate from Dr Patricia Wong of Plaza Medical Mackay (Dr Wong), which stated that the Applicant has a history of GBS, and it would be detrimental to the Applicant if she took the vaccination. Mr Warhurst said he wrote to the Applicant on 20 April 2021 and noted that she would not be rostered to work from 1 May 2020 as she was an unvaccinated nurse and would create a risk to clients. He told the Applicant, however, that she may access her leave entitlements and would be in touch to discuss her circumstances.
[70] On the morning of 27 April 2020, Mr Warhurst advised that he received an email from Mr Foley, which stated that the Applicant would have until 1 June 2020 to be vaccinated against influenza provided that she worked from home and had no client contact until that time. Mr Warhurst understood that this was because the Applicant’s daughter was in hospital. No other employee was given such extension. Mr Warhurst explained that around this time, a number of staff worked from home in accordance with the Government directives. However, for client facing roles, this meant that they were required to start and finish their day at home rather than attending the office. Mr Warhurst explained that community care staff were still required to attend client’s homes to provide care and were also required to attend branches to obtain equipment and make calls. The Respondent never intended to adopt the work from home model to be permanent, as it was not practicable in the industry. All staff eventually returned to normal work.
[71] According to Mr Warhurst, the Applicant offered on 7 May 2020, to speak to Dr Lingwood about her circumstances directly. However, after consulting with Dr Lingwood, the Applicant was informed on 12 May 2020 that this was not appropriate, as the Respondent did not want to provide the Applicant with medical advice about her ability to have the vaccine. Mr Warhurst, was not aware whether Dr Lingwood did speak with the Applicant.
[72] On 22 May 2020, the Applicant provided the Respondent a medical certificate dated 15 May 2020 from Dr Wong which stated that the Applicant was unfit for her usual occupation for the period between 18 May and 29 May 2020. The Applicant did not return to work until after 15 May 2020. On 28 May 2020, the Applicant sent an email disputing the Respondent’s decision to extend the influenza vaccination requirement to community nurses and also the Respondent’s refusal to accept her medical condition, to be an exemption to the mandatory vaccination. Mr Warhurst advised that he spoke to the Applicant, Ms Roche and Mr McKay on 3 June 2020, on the requirement for community care nurses to be vaccinated and how the Applicant’s position, required direct client contact was discussed. The Applicant was advised she could not be rostered, but could access her accrued entitlements.
[73] Mr Warhurst said he wrote to the Applicant on 8 June 2020, acknowledging her medical advice and confirmed that she would not be rostered, and her employment would be reviewed in three months. Mr Warhurst advised that other employees who had not demonstrated medical contraindications but refused the vaccine had, had their employment terminated.
Review of the Applicant’s situation
[74] By 28 August 2020, Mr Warhurst advised that the Applicant was still refusing the vaccine and had apparently been “helping out” at a medical practice she worked at 13 years ago. In October 2020, Ms Roche requested written confirmation of a further review of the Applicant’s employment on her behalf. This was provided on 21 October 2020, where the Respondent noted that the Applicant was unable to comply with all of the requirements of her role whilst unvaccinated, and there were no alternative roles for the Applicant to perform. Mr Warhurst stated that the Applicant had exhausted all of her paid leave entitlements on the fortnight ending 24 January 2021 and thereafter commenced unpaid leave.
[75] The Applicant’s employment was reviewed again, and this was communicated to the Applicant on 5 March 2021, as set out above. The Applicant, through Ms Roche, responded on 15 March 20201, wherein they challenged the introduction of the vaccination and claimed she had little to no direct client contact. Nevertheless, the Applicant said her role could be reasonably adjusted which the Respondent disagreed with, as communicated on 26 March 2021.
The Applicant’s role, duties and qualifications
[76] Upon review of the Applicant’s cover letter and resume, Mr Warhurst noted that she worked as a Practice Nurse at the Plaza Medical Mackay 14 years ago, and Dr Wong was listed as a referee. Looking at the interview notes, Mr Warhurst noted that the Applicant described her clinical experience and how it related to the provision of care in a community, including surgical nursing, practice nursing, wound care, excisions, immunisations and travel vaccinations and health assessments.
[77] Mr Warhurst refuted Ms Brant’s statement that the position description for the Clinical nurse is generic across the organisation and tailored for each branch. Mr Warhurst stated this was misleading, as the position description sets out the key requirements across the board for the role, including residential aged care facilities. The Clinical Nurse covers planned and unplanned leave for Registered Nurses, training new staff, conducts performance reviews of Registered Nurses and provides assistance to Registered Nurses on the ground as required. The Respondent does not permit any of its employees to work from home, it expected or required them to have client contact, otherwise this removed the essential elements to provide client care.
[78] Mr Warhurst advised that as a nurse immuniser, the Applicant also administered vaccinations as part of the Respondent’s service. He is of the view that it is not possible for a nurse to administer a vaccine without direct contact with clients. The Respondent does not permit any nurse immunisers to work from home or to have no direct client contact, as it would remove the requirement to administer vaccinations.
[79] When the Applicant became the 2IC, the Applicant was required to act as the Branch Manager when the Branch Manager was on annual leave for more than four days. Mr Warhurst explained that Branch Managers are involved in all aspects of the service to clients. It is not practicable or possible for this role to be performed from home. It is not permitted for Branch Managers to work from home or have no client contact, as they need to have direct client contact as it arises. Mr Warhurst provided an example where in dealing with client complaints or where the Branch Manager is a registered nurse, they are required to backfill any shortages of staff. Mr Warhurst provided evidence of payroll adjustment forms submitted by the Applicant in 2018 and 2019 in her role as Clinical Nurse, where she was required to attend on a palliative care client in their home after hours, including also a client who had passed away.
The Applicant’s contact with clients
[80] Mr Warhurst advised that upon review of the data available from Procura, a system in which the Applicant submitted her time and attendance, Mr Warhurst found that the Applicant conducted 1,995 visits to clients in the community since 2015. He broke this down further by each year, where the Applicant visited 500 clients in 2015, 877 clients in 2016, 346 clients in 2017, 158 clients in 2018, 100 clients in 2019 and 14 clients between 1 January 2020 and 1 May 2020. Mr Warhurst stated that for a comparison, he conducted a review on another employee who was appointed to the Applicant’s position whilst she was absent, and found that from 1 May 2020 to 31 December 2020, this individual visited 324 clients. Further, from 1 January 2021 to 15 November 2021, this employee visited 184 clients.
Show cause process and termination of employment
[81] As a result of the Applicant’s continued absence from the workplace, Mr Warhurst advised that a show cause letter was sent to the Applicant on 14 May 2021. The Applicant, through the QNMU, responded on 4 June 2021, where she said, amongst other things, that the Respondent at no time requested for the Applicant to undertake further investigation regarding her medical condition. The Applicant was of the view that adjustments could be made to the role most notably, the requirement for direct client contact could be removed.
[82] Mr Warhurst disagreed with the Applicant, that she had not been asked to undertake further investigation into her condition. The Respondent had sought her permission for Dr Lingwood to speak with Dr Wong on numerous occasions, but the Applicant refused. In any event, Mr Warhurst advised that the Applicant attended an Independent Medical Examination with Dr Wright on 28 July 202, to assess her ability to have the vaccine, either now or in the future. Dr Wright provided the Applicant the IMR on 9 August 2021. Upon review of this, the Respondent considered it was unlikely the Applicant, could ever return to her substantive role, as it was recommended, that she should not ever receive the vaccine. Mr Warhurst advised that there were no other roles available for the Applicant to be deployed to, as an unvaccinated employee. The Respondent further did not consider it was a reasonable adjustment to the role to remove the requirement for direct client contact. To remove such, would require the creation of a role that did not exist and was not operationally required. As a result, the Applicant’s employment was terminated on 18 August 2021, and she was paid five weeks wages in lieu of notice on termination.
[83] Mr Warhurst further noted that as a result of the Applicant’s continuing employment despite her declining the vaccination, she was able to access 238.01 hours of accrued personal leave, which she would not have been paid out on termination. The Applicant also accessed 320.45 hours of long service leave and 303.37 hours of annual leave.
Vaccination Outcomes
[84] Mr Warhurst advised that out of the 30,000 or more workforce at the time the mandatory vaccination requirement was introduced, 37 employees initially declined prior to 1 May 2020. Out of these 37 declinations, 15 received the vaccination despite that some of these employees raised egg allergies and adverse reactions, 6 had resigned, 10 were dismissed, 2 were casual employees and were not rostered to work, and 4 (including the Applicant) raised medical objections which were accepted by the Respondent and were able to access their accrued paid entitlements. None of these employees were permitted to work unvaccinated, and one subsequently resigned; where the remaining three, including the Applicant, was dismissed.
[85] Since 1 May 2020, no employees were permitted to work if they had refused the mandatory influenza vaccination requirement, except for the Applicant who was permitted to work from home, without direct client contact for two weeks in May 2020.
Influenza vaccination requirement in the future
[86] According to Mr Warhurst, the Respondent has no intention to change the Immunisation Policy in the future to remove the requirement for staff to be vaccinated, or to allow exemptions to the policy. The Immunisation Policy had since been updated to require all employees with direct client contact, to be vaccinated against COVID-19. The Applicant would have been required to comply with this, as she would have had direct client contact. There were no exemptions to this requirement and employees were required to provide evidence they had received their first dose of the vaccination by 17 September 2021. If the Applicant did not comply with this requirement, she would have been dismissed following a show cause process.
Summary of the witness evidence of Ms Andrina Farlow
[87] Ms Farlow advised she commenced working for the Respondent as a Registered Nurse in 1996. Since September 2009, she was employed in a position which held various titles, with the current being Business Operations Manager (BOM), Community Care. Ms Farlow’s primary responsibility involves oversight of community care in Emerald, Rockhampton, Mackay, Brisbane South, Ipswich, and Logan. She supervises each of the Branch Managers in these regions. Ms Farlow reports to Mr Brighouse.
[88] Ms Farlow advised that the Clinical Nurse is a senior Registered Nurse. They generally have less direct client contact than Registered Nurses, who would perform 95% of their duties directly with clients. This is because Clinical Nurses spend more time on administrative tasks and non-direct time. However, she noted that there is still a requirement that Clinical Nurses have direct client contact in the position. The degree of contact may vary between branches however it is not a requirement which can be removed. For example, Ms Farlow noted that Clinical Nurses must maintain their nursing registration, act as expert consultants for other nursing staff, provide on the job training and assistance, manage critical incidents that occur, supervise other nurse, support workers and assistants. Clinical Nurses are also expected to cover periods of planned and unplanned leave of nurses, provide advanced nursing management, assessment, planning and evaluation of nursing interventions for clients (which may require Clinical Nurses to conduct physical assessments to determine the most appropriate care strategies), need to ensure their team are clinically competent, which would involve sighting their clinical practice, and act on complaints and conflict resolution between staff and clients.
[89] Considering the position requirements, Mr Farlow disagreed with Ms Brant’s assertion that the Clinical Nurse position in Mackay only requires direct client contact about 10% of the time. The Applicant was the only Clinical Nurse in the Mackay Community Care Branch but also performed the position of the Acting Branch Manager when Ms Brant was on leave. She noted Ms Brant’s statement that she would have supported the Applicant in having minimal physical contact with clients and field staff as an unvaccinated employee. However, Ms Farlow does not consider this would be appropriate, or possible, to provide clinical services or accurately supervise and assess other nurses by video link. For example, the Applicant would not be able to administer drugs, change wound dressing or perform CPR by video. It is of Ms Farlow’s view that the quality of care would diminish if nurses out in the field needed to hold a video camera whilst trying to provide clinical services on a full-time basis so that supervision, assessment, and training could occur virtually. Ms Farlow would not have authorised such a change as it would remove the requirement for physical contact, and would be creating a position which does not exist in the organisation.
[90] Ms Farlow advised that the only position within the organisation that does not require any direct client contact is an Assistant Coordinator Scheduler. However, even direct client contact cannot be ruled out, and the position is in frequent contact with other staff who have regular, direct, client contact daily. Therefore, the influenza vaccination is needed for this position. She noted that even in her role, she is required to be vaccinated as it cannot be ruled out that she may need to visit a client in their home as part of her role. It was Ms Farlow’s view that clinicians cannot perform their duties at home. They can begin their day from home, and some still do. However, it would not be possible for a clinician to perform their entire role from home.
Mackay Community Care Branch
[91] Ms Farlow explained that the Mackay Community Care branch building occupies two levels; the lower level has a large training room and kitchen. The Respondent’s dementia program brings clients there, for aspects of care, and is often used as a clinic for clients to visit. Ms Farlow advised that the Applicant has seen clients on the lower level to perform for Life Screen, which is to take blood, and blood pressure and to provide immunisations and injections. Although staff are not required to work on the lower levels, they do walk through the lower level to get to the second floor. Staff also use the kitchen and toilets on the lower level. The Applicant’s office, in particular, is situated closer to the Registered Nurses who go out in the community providing care daily. There were nine Registered Nurses employed immediately prior to the vaccination requirement being introduced, and the Respondent was actively recruiting more due to staff shortage.
[92] Ms Farlow recalled that during and after extreme weather events in North Queensland, the Respondent offered nursing staff to help administer first aid to the public. This included providing Clinical and Registered Nurses. All clinical staff would be expected to either assist with the public or to backfill staff to ensure that the Respondent’s services continued. The Applicant is also an immunisation nurse and had provided vaccinations through the Immunisation Services. This is not, however, part of the position requirements for a Clinical or Registered Nurse.
[93] Ms Farlow disagreed with the Applicant that she was performing the duties of a Clinical Nurse Manager and advised that there was only one person who currently holds this position. Ms Farlow explained that this position would supervise 6 Clinical Nurses (who together supervise 10 Registered Nurses) on the Gold Coast. There are over 200 employees and 1,905 clients in this region. Ms Farlow advised that the Applicant did not have supervision of other Clinical Nurses.
Discussions with the Applicant regarding vaccination requirements
[94] Ms Farlow recalled engaging in discussions around April or May 2020 with Dr Lingwood, Ms Brant and the Applicant regarding the vaccination requirements. She recalled being informed by Dr Lingwood that there was a higher incidence of GBS after contracting influenza itself than after receiving the influenza vaccine. Ms Farlow passed this information to the Applicant, in which the Applicant said, words to the effect of, “I absolutely won’t have it, I’ve had Guillain-Barre, so I know there is a risk.” The Applicant further said that she does not get sick and keeps herself healthy. Ms Farlow recalled the Applicant categorically told her that she would not be having the vaccine. Her evidence was that at no time did the Applicant ever tell her that she had contracted GBS, six weeks after a previous dose of the flu vaccine.
Summary of the witness evidence of Mr Damian Foley
[95] Mr Foley advised that he had commenced working with the Respondent in May 2012, and since July 2016, he held the role of Chief Operating Officer. Mr Foley is responsible for the daily operations of the residential and community (home) care services, and retirement villages. He reports to the Chief Executive Officer, Mr Godfrey, and stated that he works closely with other members of the Executive Leadership Team, including Mr Reading, Ms Ramsay, Mr Brighouse and Mr Warhurst.
[96] He explained that the Respondent provides a range of services across Queensland to aged care, retirement living, disability care, respite care, nursing, allied health and more at 40 locations. For the last 20 years, the Respondent has also provided immunisation services to workplaces and schools. The Respondent has 16 residential aged care facilities in Queensland alone, which services 2,200 clients. The Respondent also provides home care to 13,000 clients across Queensland. Mr Foley advised that the “home care” services were to assist clients with their daily living, to allow them to live independently, and safely, in their own home for as long as possible. The level of care is case dependant, where some clients require care for a few hours a day, whilst others need a few hours each fortnight. The services could include personal care, respite care, medication management, general health check-ups, domestic duties, meal preparation, wound dressing or palliative care. The Respondent also provides services to those who are recovering from surgery or if their usual carer is unwell. These services can be provided by carers, nurses, dementia advisors, allied health professionals and case managers.
[97] Mr Foley advised that when a client can no longer live safely and independently in their home, they may choose to move into a residential aged care facility where they will have personal care, medication management, meal preparation and domestic duties twenty-four hours, seven days a week. Residential aged care is provided by nurses, carers, allied health professionals, cooks and client service staff. A registered nurse is on duty 24 hours a day. These services, including home care services, are regulated by the Aged Care Quality and Safety Commission. Mr Foley stated that they share the same industry standards, however infection control is more regulated in residential aged care facilities.
[98] The work provided by staff in residential aged care facilities is largely the same service as provided in home care. The only difference being that aged care facilities have higher needs and require constant care. Mr Foley advised that of the home care clients:
• 346 are aged over 95;
• 3,000 or more are aged over 85;
• 5,000 or more are aged over 75; and
• 5,000 or more are aged between 65 to 75.
[99] Mr Foley advised that 80% of home care clients are considered vulnerable. Most of whom are those with compromised immune systems (including cancers), elderly clients, chronic disease, other chronic medical conditions (such as cardiovascular conditions or diabetes); and also those with chronic respiratory medical conditions.
Risks of outbreak of infectious disease in home care
[100] It is Mr Foley’s view that clients receiving home care are at a greater risk of catching and spreading infectious disease, than in residential aged care facilities. This is because the Respondent has stricter control over the management of residential aged care facilities. The Respondent has very little control as to what happens at a clients home, and has no way of knowing what third parties had attended the client’s home. Mr Foley also noted that staff providing home care may visit between 4 to 10 clients in their homes, or possibly even 20 each week. He also noted that social distancing is not practicable in the services provided. Mr Foley further advised that another service, called Respite Care, involves picking up home care clients on a bus and bringing them to a day respite centre. This provides social interaction for clients and respite to a client’s carer if they have one. There are up to 300 staff, clients and their carers and families passing through the Respondent’s five day respite centres on any given day.
[101] Mr Foley advised that 90% of home care services are provided in accordance with contracts with the Commonwealth Health Department. The Respondent also has contracts with Queensland Health in relation to transition care (i.e. care for patients who have been in hospital). These contracts require the Respondent to warrant that their employees meet the vaccine preventable disease screening requirements, set out in the Human Resources Policy B1: Recruitment and Selection (the HRP-B1), or the Health Services Directive #QH-HSD-047-1:2016 (the HSD). In particular, the HSD requires workers, contractors, volunteers and students to be vaccinated against Hepatitis B, measles, mumps and rubella, pertussis and varicella. In addition to this, the HSD requires the Respondent to follow the recommendations of the Australian Immunisation Handbook in regard to healthcare workers. Mr Foley noted that the Handbook strongly recommends healthcare workers and carers receive the annual influenza vaccination. Mr Foley stipulated that the policy of mandatory influenza vaccinations for staff is a furtherance of their contractual obligations to the State of Queensland and Queensland Health.
Coronavirus pandemic and introduction of the mandatory influenza vaccination
[102] Mr Foley explained that given the potential impact COVID-19 had, the organisation needed to ensure it can continue providing care in the safest manner possible for both clients and staff. In early March 2020, the Respondent commenced dedicated staff meetings with senior operational managers to discuss a strategy in response to COVID-19. This was because anecdotal evidence available at the time suggested that someone, contracting influenza and COVID-19 could be fatal for clients. On 12 March 2020, Mr Foley sent an email to all senior management regarding measures the Respondent, was taking for home care clients in response to COVID.
[103] Mr Foley advised that in and throughout the meetings, he became aware that clients, carers and their families were raising concerns regarding what steps the Respondents were taking, to ensure the safety of those in their care. These concerns were raised across all divisions within their business, and it was discussed amongst the executives. On 13 March 2020, Mr Foley said he was copied into an email from Mr Brighouse which attached a guide for staff to use in responding to concerns raised by clients and their families. On the same day, the Respondent received a letter from Professor Brendan Murphy, the Commonwealth’s Chief Health Officer, which stated that, amongst other things, given the increased risk to Australians if they were to contract COVID-19, aged care providers needed to finalise arrangements for seasonal flu vaccinations for residents, staff and volunteers. Mr Foley understood that the letter was issued to all aged care providers.
[104] On 18 March 2020, Mr Foley recalled the Prime Minister issuing a media statement instructing that all visitors and staff (including visiting staff) should not be permitted to enter an aged care facility unless vaccinated against influenza from 1 May 2020. On 19 March 2020, the Respondent decided to temporarily close all corporate offices, all community branch offices and their day respite centres as social distancing was not practicable and the Respondent did not want to place clients and staff at risk. Mr Foley advised that staff that worked in corporate offices and community branch offices work from home.
Queensland CHO direction on 21 March 2020
[105] Mr Foley noted that on 21 March 2020, the Queensland Chief Health Office issued an Aged Care Direction stating that those who did not have an up-to-date influenza vaccination must not enter or remain on the premises of an aged care facility. Mr Foley advised that at this point, it was a legal requirement for all of the Respondent’s aged care staff and visitors to those facilities be vaccinated from 1 May 2020.
[106] Mr Foley learnt from other aged care providers that on and from late March 2020, nearly 2,000 of home care clients, stopped carers from coming into their homes because they feared for their safety. This meant some clients went without showers, had to do their own cleaning, administer their own medication and in some cases, manage to get out of bed without assistance or relied on family and friends.
[107] On 26 March 2020, Mr Foley engaged in discussions with Mr Godfrey and Mr Warhurst regarding mandating the influenza vaccination for direct client contact roles. On 31 March 2020, Mr Foley recalled attending another meeting with Mr Godfrey and Mr Warhurst where Mr Godfrey advised that it was in the best interest for staff and clients, that the influenza vaccination be mandated for all employees in client facing roles. Mr Foley agreed with this view, having regard to the nature of the work performed by staff and the vulnerabilities of their clients.
[108] From April 2020, Mr Foley advised he attended weekly teleconferences held by the Honourable Senator Richard Colbeck, the Minister of Aged Care and Senior Australians with all aged care providers. During these calls, the Respondent and other large, aged care providers expressed frustration and concerns about the requirement for influenza vaccinations was only mandated for staff in residential aged care facilities and not for home aged care settings. These concerns and frustrations were expressed for several months. On 2 April 2020, Mr Foley met with other members of the Respondent’s executive team to finalise the details of the influenza vaccination requirement and to update the policy. On the following day, Mr Foley advised that staff were notified of the influenza vaccination requirement and that those who were not vaccinated from 1 May 2020 would not be rostered to work. Mr Foley noted that the Aged Care Directions requiring vaccination upon entry to aged care facilities remained in effect until 1 December 2020.
[109] Mr Foley advised that the Respondent has not permitted anyone in residential aged care facilities or home care to be rostered to work since 1 May 2020 without the influenza vaccination and maintains this policy to date. Mr Godfrey, Mr Warhurst and Mr Foley did give consideration to allowing exemptions to the vaccination policy generally, and in respect to the Applicant. However, the decision was ultimately that exemptions would not be allowed. Mr Foley explained that the primary business of the Respondent is to provide support and care to frail, aged members of the Community. Clients of the Respondent have been and remain to be the most vulnerable group to the effects of COVID-19, and by the time clients begin to receive services from the Respondent, they have a range of morbidities, which potentially increases their dangers and the health risks of COVID-19. Mr Foley advised that this feature of the service provides the guiding principle, through which they decided not to allow exemptions to the vaccination requirements.
2021
[110] Mr Foley advised that where social distancing is not possible, the Respondent requires all home care staff to wear masks whilst performing their duties which is in accordance with the recommendation of Queensland Health. On 10 November 2021, the Australian Health Protection Principal Committee recommended a national framework for mandatory COVID-19 vaccination requirements for in-home and community aged care workers to be established under public health orders. Mr Foley stated that on 10 November 2021, the CHO issued directions mandating the COVID-19 vaccination for all workers in healthcare including those who work in “aged care services funded by the Australian Government and delivered in the home”.
[111] Mr Foley noted that since the onset of the pandemic, the Respondent has:
• implemented outbreak cleaning protocols;
• enforced a restricted visitor policy and restricted visiting hours at the aged care facilities;
• introduced mandatory temperature checks and screening questionnaires to all visitors to our aged care facilities and day respite centres;
• introduced mandatory influenza vaccinations and later, mandatory COVID vaccinations, for all of the Respondent’s staff working at their aged care facilities and in their home care services;
• placed additional hand sanitisers throughout their services;
• ensure vigilant monitoring of clients by all staff members for any early ‘flu like’ symptoms and immediate reporting of these to clinical management, senior management and GPs; and
• maintained internal reporting protocols for unwell clients, staff and volunteers
Summary of the witness evidence of Dr Andrew Lingwood
[112] Dr Lingwood advised he has been engaged by the Respondent as an occupational medicine consultant since 2011. In this role, Dr Lingwood provided medical risk management advice, including advising the Respondent on its implementation of a mandatory influenza vaccination program for staff in light of government regulations in the aged care sector.
[113] Dr Lingwood is of the opinion that when considering the aged care industry and in particular the operations Respondent, “any requirement for mandatory influenza vaccinations of staff should be the same for nurses in aged care facilities and nurses working in the community, regardless of how much interaction with clients the nurse has”. He noted that there are differences in the level of risk of contracting and transmitting influenza depending on the degree of patient or client contact, but in general, any individuals working in a nursing position with patient or client contact will have a significantly increased risk of exposure to influenza compared with non-nursing roles. He further noted that this is consistent with recommendations in the Australian Immunisation Handbook, which strongly recommends that all healthcare workers and staff of aged care facilities receive annual influenza vaccination, and that this recommendation is not documented as being dependent on a minimum level of patient or resident contact.
Influenza clinical features, complications and mortality
[114] Dr Lingwood advised that influenza is an infectious disease that is transmitted from person to person, caused by a variety of influenza viruses and impacts the respiratory tract. Most who contract influenza, as opposed to other common viral infections, become significantly unwell for a few days up to two weeks, but usually recover without lasting ill-health effects. Symptoms typically include fever, sore throat, other respiratory symptoms, muscle or join aches and fatigue. Dr Lingwood however noted that some strains of seasonal influenza are more severe than others. Adults aged over 65 years, and residents in aged care or other long-term facilities, are generally considered at a higher risk for serious complications of influenza. For example, the influenza could progress to pneumonia or other complications which are very serious and may result in hospitalisation or even death. The increased risk in individuals aged over 65, likely relates to changes in the immune system with aging. In older individuals, there is also an increased likelihood of coexistence of other chronic medical conditions, which can also increase the risk of complications. It is however not possible to definitively predict who will be severely affected and who will not.
[115] Dr Lingwood referred to the Australian Immunisation Handbook, published by the Australian Government Department of Health, which supports this opinion about the manifestations of influenza and groups that are at particular risk. 5 He also referred to similar information which is publicly available on the “Centers for Disease Control and Prevention” (CDC) website,6 which provides that complications of influenza in adults include:
• pneumonia. This occurs where either the influenza virus or a secondary bacterial infection directly infects the lung tissue;
• acute respiratory distress syndrome and multi-organ failure;
• myositis and rhabdomyolysis (which refers an inflammation and break down of muscle tissue);
• cardiac complications including acute myocardial infarction (heart attack) and myocarditis or pericarditis (inflammation of the heart muscle or lining of the heart);
• central nervous system complications including encephalopathy;
• inflammation of the spinal cord;
• meningitis; and
• GBS. 7
[116] Dr Lingwood stated that the majority of mortality from influenza occurs in the over 65 age group. The CDC suggests that 70-85% of mortality from influenza occurs in this age group. A recently published paper from 2019 based on United States data suggested that 90% of influenza mortality occurs in the over 65 age group. 8 Further, Australian surveillance data similarly concludes that the majority of influenza mortality occurs in the over 65 age group. A summary of data collected in the 2018 Australian influenza season for example suggested that 75% of mortality occurred in this age group.9
Coronavirus and influenza
[117] Dr Lingwood stated that the risk of hospitalisation and mortality from coronavirus is significantly increased in elderly individuals. Increasing age is widely accepted to be a risk factor for more severe disease. The CDC estimates that around 80% of coronavirus deaths in the USA have been in individuals aged over 65. 10
[118] Dr Lingwood referred to research published in the British Medical Journal on 23 September 2020 which noted that individuals infected with both influenza and coronavirus were more than twice as likely to die as an individual who is infected with coronavirus alone. Most of these cases of coinfection were in older individuals. 11
[119] Dr Lingwood stated that that research on this topic is still ongoing given the relative recency of the coronavirus pandemic and this data has not yet been fully peer-reviewed. However, some preliminary data does suggest worse health outcomes for individuals who are coinfected.
Influenza transmission
[120] Dr Lingwood discussed how influenza is transferred via droplets or aerosols when infected individuals sneeze, cough or talk. The droplets from the infectious individual may land on or near the mouth or nose of another individual and directly enter the individual’s respiratory tract. Alternately, the droplets may land on a surface which is subsequently touched by another individual who then touches their own mouth, nose or eyes, again resulting in influenza gaining access to the body. Droplets are typically thought to travel around 180cm, but the smaller aerosols may travel further. 12 It is understood that the virus can survive for up to an hour in the air in an enclosed environment, or for more than eight hours (potentially up to 48 hours) on hard surfaces (such as door handles, handrails, desks or similar).13
[121] Dr Lingwood stated that the modes of transmission and the virus’s ability to survive for extended periods in enclosed spaces and on surfaces, makes indoor environments where individuals are living or working together settings which can easily spread the disease.
[122] Dr Lingwood noted that while there are no additional or unique modes of transmission in a residential aged care facility when compared to a home care environment which increases the risk of transmission of influenza, in that the virus would still spread by droplet transmission as described above, the nature of the work, with a nurse being in close, direct contact with a client, or touching surfaces or other items that the client is in contact with, can facilitate transmission in this environment.
The importance of vaccinations in an aged care workplace
[123] Dr Lingwood referred to s.19 of the Work Health and Safety Act 2011 (Qld) which provides that employers hold two duties; so far as reasonably practicable, to ensure the health and safety of workers, including community care workers, clients and visitors who attend the workplace. Dr Lingwood stated compliance with these duties involves identifying workplace hazards and introducing control measures for those hazards. The legislation requires risks arising from the hazard to be eliminated in the first instance. If elimination is not reasonably practicable, the employer is expected to introduce other control measures that reduce the risks so far as is reasonably practicable. He further noted that control strategies are ranked from the highest level of protection and reliability (elimination) through to the lower and less reliable controls. This is referred to as the “hierarchy of controls”, which are as follows:
• elimination;
• substitution;
• isolation;
• engineering controls;
• administrative controls; and
• personal protective equipment.
[124] Dr Lingwood noted that influenza is a workplace risk which is not able to be eliminated or substituted as it would require the Respondent to be able to reliably identify and remove or exclude all employees, clients, and visitors (which would include visitors of client’s homes) who are potential transmitters of the virus. This is not possible, particularly noting that influenza can be spread prior to individuals developing symptoms. Alternatively, he considered that it would require complete immunity from influenza for all staff, clients, and visitors which is also not possible.
[125] Dr Lingwood considered that, given these limitations, aged care employers need to introduce a mix of alternate control measures to reduce rather than eliminate risk of influenza. He set out the available control measures for influenza, as follows:
• substitution or substituting the risk of influenza with a lesser risk is not a feasible or realistic option for preventing influenza transmission;
• isolating individuals with influenza as a control measure does have the potential to reduce the risk of transmission, such as individuals not to come to work when sick. This method however is reliant upon employees taking a step of identifying their influenza infection and then voluntarily isolating themselves and not working. The incubation period of influenza in adults is typically quoted as being between one and four days with an average of two days. Viral shedding (which can pass on the virus) has been detected one to two days before the onset of symptoms. The amount of virus shed prior to the onset of symptoms is significantly lower than during the period where the individual is symptomatic. As such, people with influenza are most contagious in the early period of their illness once symptoms commence, however it is documented and accepted that infected individuals can infect others prior to developing symptoms. Therefore, isolation is not a complete measure and additional controls need to be introduced to manage the risk;
• the next relevant level of control in the hierarchy is engineering controls to reduce the risk. This could include introducing technology or other changes in the work environment (such as physical barriers) to stop the spread of the virus. In an aged care environment (residential care and home or community care), engineering controls are not a realistic measure, due to the physical nature of aged care and the necessary interaction between workers, clients, and visitors. Human contact and direct physical interaction are an inherent requirement of the work; and
• the lowest levels of control are administrative controls and personal protective equipment. Administrative controls may include procedures around hand hygiene, cough etiquette, cleaning of the work environment and supporting individuals with respiratory illnesses and known influenza to stay away from work. Personal protective equipment such as masks and gloves can also play a role in reducing the risk. These lower order controls however are a last line of defense in a safety system and are liable to human error. As such, they do not present an exhaustive control measure in and of themselves. Employers thus need to attempt to introduce other controls such as influenza vaccinations to strengthen the overall level of risk control.
[126] Dr Lingwood noted that workplace vaccination programs have become increasingly common over recent years to help reduce the risk of outbreaks. These programs are important due to the significant risk of transmission of influenza, in working environments, where individuals work in proximity with one another, and the ability of the virus to live on surfaces for up to 48 hours. While there are many strategies which can be adopted, vaccination is a key component of any comprehensive program. 14
Vaccines as a control measure
[127] Dr Lingwood expressed that the vaccination of workers is a vital control measure available to the Respondent to reduce the risk of transmission of the influenza virus. In particular, in relation to nurses in an aged care environment, the nature of the nurse’s role where they interact closely with clients, places a greater risk of transmission of influenza virus. This foreseeable risk of transmission of influenza may be either from client to nurse, or from nurse to client. Dr Lingwood advised that if a nurse contracts influenza from their client, then the additional risk is of the nurse passing the infection onto other clients that they are providing for (noting the potential for the transmission of the virus prior to any symptoms becoming apparent). Dr Lingwood referred to the significantly increased risk of mortality if an older individual who is receiving care contracts influenza from their nurse.
[128] Dr Lingwood noted that when considering the practical difficulties with higher order controls, and also noting that other administrative controls such as hand and general hygiene are very user dependent, vaccination becomes increasingly important and has advantages over the other control measures he identified. He stated that it is a measure that should be introduced into the workplace in combination with other control measures to decrease the risk of influenza transmission between employees and between employees and clients, their carers and families.
[129] Dr Lingwood listed the ways in which a program of vaccination for employees reduces the risk of transmission, in the context of an aged care employee. Vaccinations have been widely regarded as the most important measure which have been supported by studies that demonstrate the vaccination, significantly decreasing the likelihood of contracting influenza. For example, a large review of studies by the authoritative Cochrane group found that in healthy adults, vaccination decreases the risk of contracting influenza by 59%. The range of reduction of different studies varies between a reduction of 64% and 53%. People with immune dysfunction, the elderly or those with other chronic medical problems may achieve a lower level of protection from the vaccination. 15
[130] Dr Lingwood further noted that health authorities routinely look at the effectiveness of vaccinations each year in reducing the risk of disease in the population. He explained that the studies of the effectiveness of the vaccine varies each year dependent on how good the match is between the strains of virus and the vaccine, and the actual strain in the community. In 2019, studies in Australia found that vaccinations reduce the risk of infection between 40% to 60%. In 2018, the data found a risk of reduction of 68%. Similarly, USA studies observed vaccination typically reduces the risk of infection by between 40% and 60%. Dr Lingwood advised that if an individual does not contract influenza themselves, it is not possible for them to transmit the infection to others. Further to this, Dr Lingwood advised influenza may be transmitted all year around, although it is more common in Australia between April and October.
[131] Dr Lingwood concluded that vaccination is an effective measure to reduce the spread of influenza. The risk of transmission will be significantly decreased in vaccinated individuals regardless of the amount of direct contact an employee may have with clients or others. Maximising influenza vaccination rates (in line with the Australian and international recommendations) is central to any influenza prevention strategy noting that individuals spend a significant period of time at work, and potentially in close contact with other individuals.
Guillain-Barre syndrome
[132] Dr Lingwood stated that GBS is a serious condition often discussed as having a potential relationship with influenza vaccination. It is a rare disorder in which the body’s immune system attacks part of the nervous system which can lead to numbness, muscle weakness and sometimes paralysis; and is typically preceded by a viral illness (including an influenza virus infection). Dr Lingwood further stated that most people recover after a few weeks but in rare cases it can be fatal. The risk of GBS increases with age and is greatest in those aged 50 years or older (irrespective of whether they have had a vaccination or not).
[133] Dr Lingwood stated that there was a small increased risk of GBS noted after the administration of one particular type of influenza vaccination in the United States in 1976. Since that time there has been very close monitoring of GBS cases occurring after vaccinations. Subsequent data on the association between seasonal influenza vaccination and GBS has been variable from season to season. Some years there has been a slightly increased risk in the order of one to two additional cases observed per million influenza vaccinations administered. This compares to one additional case per approximately 100,000 people who received the 1976 vaccination.
[134] Dr Lingwood noted that the current evidence suggests that while GBS may occur at a very low rate of less than one in one million doses of influenza vaccination, this does not necessarily mean that the vaccination has caused the GBS, just that the condition has been observed to occur sometime after the vaccination. He also noted that studies suggest that a person is several times more likely to get GBS due to an infection with influenza rather than influenza vaccination.
[135] Dr Lingwood stated that in Australia, influenza vaccination is not recommended for individuals with a history of GBS whose first episode occurred within six weeks of an influenza vaccination. It is not an absolute medical contraindication for the vaccination, but in this cohort of people, specialist assessment to discuss the balance between the potential for GBS recurrence if vaccinated versus the potential for recurrence of the condition following an influenza infection is advised. In some situations, vaccination may be recommended after specialist assessment. 16
Adverse Reactions
[136] Dr Lingwood discussed the most severe potential adverse reaction to influenza vaccination, anaphylaxis. He noted that the data suggests an incidence of between 0.3 and 2.1 cases per million vaccinations in general and around 1.35 cases per million influenza vaccinations. 17
Dr Lingwood’s involvement in the Respondent’s mandatory influenza vaccination policy
[137] Dr Lingwood stated that he was not involved in the Respondent’s decision to make influenza vaccinations mandatory. Once the decision had been made to implement mandatory influenza vaccination, he assisted with reviewing a program or procedure for individuals who declined influenza vaccination. He was also asked to review a number of responses to this letter from individuals’ treating medical practitioners or other statements from individuals or their medical treating practitioners and provide his opinion as to whether these constituted a genuine medical contraindication to influenza vaccination.
The Applicant
[138] Dr Lingwood recalled that in April or May 2020, the Respondent requested his opinion on medical advice which it had received regarding the Applicant’s influenza vaccine. He noted that the Applicant had submitted a medical certificate from her general practitioner describing a history of GBS but that the certificate did not specify the circumstances of the episode of GBS. He indicated to the Respondent that unless the Applicant reported GBS occurring within six weeks of the influenza vaccination, any prior history of GBS would not be a recognised condition that prevents an individual from receiving the vaccination.
[139] Dr Lingwood recalled having a discussion with the Applicant shortly after providing this advice, to obtain further information about her condition. He stated that it was not reported to him during his discussion, that the Applicant reported GBS, occurring after a previous dose of the influenza vaccine. Dr Lingwood stated that he offered to speak with the Applicant’s general practitioner to obtain further information about her condition however he understood that the Applicant did not consent to this.
[140] Dr Lingwood stated that he reviewed Dr Wright’s report regarding the Applicant’s ability to receive an influenza vaccination. He noted that he had not seen the medical certificate dated 9 July 2021 which Dr Wright refers to on page three of his report. He stated that although he had not assessed the Applicant, if she had reported to him the same matters which were reported to Dr Wright, and assuming the Applicant’s history is correct, he would have likely reached the same conclusion as Dr Wright, that the influenza vaccination is not recommended for the Applicant. He noted that he would not have concluded that the Applicant has a contraindication to the vaccine, because the only absolute contraindication to vaccination is anaphylaxis, but he would have concluded that any decision to consider vaccination would have required a risk-benefit assessment by a neurologist.
GBS and COVID-19 vaccination
[141] Dr Lingwood stated that current research indicates that GBS does not represent a medical contraindication to COVID-19 vaccination. There is a suggestion that people who have contracted GBS should have an mRNA vaccine, such as Pfizer-BioNTech or Moderna. mRNA vaccines use mRNA created in a laboratory to instruct the body’s cells to make a protein from the virus in order to trigger an immune response. 18 Dr Lingwood noted that specialist advice from her treating neurologist or an immunologist may be considered to discuss the benefits and risks of COVID-19 vaccination for the Applicant.
Summary of the witness evidence of Mr Joel Reading
[142] Mr Reading has been engaged by the Respondent for 18 years. Prior to his current role, Mr Reading was engaged as the Regional Manager of Operations and prior to that as the Head of Residential Aged Care. In his current role as Group Manager, he is responsible for the Respondent’s compliance with regulatory matters and oversees the models of clinical and service practice.
Occupational health and safety framework
[143] Mr Reading stated that under the Work Health and Safety Act 2011 (Qld), the Respondent is required, so far as is reasonably practicable, to ensure the health and safety of workers and others at the workplace. The Respondent must identify hazards at the workplace and associated risks, and act on them by implementing reasonably practicable control measures to eliminate or minimise the identified risks.
[144] Mr Reading stated that biological hazards are a key workplace hazard for the Respondent. The Respondent may be exposed to claims of contravening statutory workplace health and safety obligations where a biological hazard was present in the workplace and the Respondent’s efforts to control the exposure of the biological hazard to workers was insufficient; and/or workers were required to perform tasks that gave rise to the risk of exposure to the biological hazard without the provision of adequate control measures. Mr Reading noted that “workplaces” for the Respondent include residential aged care facilities, day respite centres, community care branches, support offices, and the homes of clients where home care is provided.
[145] Mr Reading stated that from a work health and safety perspective, the Respondent is a high-risk workplace when considering the exposure to the risk of infectious disease. This is because of the inherent risk factors in aged care work, which includes close contact between workers and clients (including exposure to bodily fluids) and the fact clients are elderly, vulnerable and often suffering from illness and disabilities.
The Respondent’s statutory obligations to clients
[146] Mr Reading discussed the Commonwealth Government’s regulation of the Aged Care industry. He said the Respondent owes duties to its clients in accordance with various statutory regimes, which is regulated by the Aged Care Quality and Safety Commission (the ACQSC). Compliance is assessed at least 40 or 50 times each year by the ACQSC through random audits, and since the Coronavirus pandemic, additional audits focused on infection control have been conducted. Mr Reading referred to:
• the Aged Care Act 1997 (Cth) (the Act) is the main law that covers government-funded aged care. It sets out rules for things like funding, regulation, approval of providers, quality of care and the rights of people receiving care.
• the User Rights Principles 2014 (Cth), which includes in schedule 1 the “Charter of Aged Care Rights” (the Charter). The Charter establishes common rights for all recipients of aged care, whether that care be in a residential aged care service or home-based care in the general community. The first right is “I have the right to safe and high quality care and services”. 19
• the Quality of Care Principles 2014 (Cth), which makes provision for the Aged Care Quality Standards (Standards) in Schedule 2. The Standards apply to all aspects of the Respondent’s business. A failure to meet the Standards may result in the removal of an approved provider status. Relevantly, these standards require the Respondent to actively work to identify and address potential risk, to ensure the safety of service users, staff and the organisation. 20
• the ACQSC, which provides guidance on the expectations and requirements of approved providers to meet the requirements in the Standards. 21
[147] Mr Reading referred to the relevant Standards, as follows:
• Standard 2 deals with ongoing assessment and planning with consumers. Standard 2(3)(e) requires the Respondent to regularly review care and services for effectiveness, including when circumstances change or when incidents impact on the needs of the consumer;
• Standard 3 deals with personal care and clinical care. Standard 3(3)(a)(1) provides that the Respondent must demonstrate each client is getting safe and effective personal care, clinical care, or both personal and clinical care that is best practice, tailored to their needs and which optimises their health and wellbeing. Standard 3(3)(g) requires the Respondent to minimise infection related risks through implementing standard and transmission-based precautions to prevent and control infection. Organisations must develop and implement an effective infection prevention and control program that is in line with national guidelines. National guidelines include the Australian Immunisation Handbook. Organisations must assess and take steps to prevent, detect and control the spread of infections;
• Standard 4 deals with services and support for daily living. Standard 4(3)(a) requires the Respondent to ensure each consumer gets safe and effective services that optimises their health, well-being and quality of life;
• Standard 7 deals with human resources. Standard 7(3) requires the Respondent to have a workforce that is planned that enables the delivery and management of safe and quality care and services; and
• Standard 8 deals with organisation governance. Standard 8(3)(e) requires the Respondent, when providing clinical care, to establish a clinical governance framework, including but not limited to antimicrobial stewardship.
[148] Mr Reading also noted ss.8 and 10A of the Aged Care Legislation Amendment (Influenza Vaccination in Residential Care) Principles 2018 (Cth), which amended the Quality of Care Principles 2014 (Cth) and the Records Principles 2014 (Cth) with respect to residential aged care employees. 22 These require the Respondent to provide staff with free annual influenza vaccination and promote the benefits of vaccination to staff and care recipients, and to keep records of staff that are vaccinated. Although these requirements are only focused on residential aged care facilities, the Respondent applies this to all aspects of its business.
[149] Mr Reading also noted that whilst the Queensland Government is not a regulator of aged care services in Australia, it can influence the Respondent’s practices by exercising its wide powers under the Public Health Act 2005 (Qld).
Public health and safety
[150] Mr Reading noted that the Respondent, as a not-for-profit organisation and has a longstanding relationship and engagement with Queensland’s public health unit in relation to infectious disease outbreaks. He stated that, by law, an aged care provider is required to notify Queensland Health if there are three confirmed cases of a notifiable disease (which includes influenza) in a residential aged care facility within 36 hours. This allows public health to test and trace and alert others. If there is an outbreak of any disease within the organisation, the Respondent’s practice is to call the public health unit and ask for their expert advice, which it relies on. The Respondent invites public health officers to attend its facilities and recommend control measures (for example this might include closing a wing, or increasing infection control cleaning), which it adopts.
Infection control and immunisation policies
[151] Mr Reading stated that the Respondent places great importance on health and safety in respect of its employees, clients, and their families. He annexed copies of the Respondent’s infection control and immunisation policies and procedures and outbreak management plan in relation to COVID. 23
Introduction of the mandatory influenza vaccination requirement
[152] Mr Reading noted that, for a number of years, the Respondent’s Governance Risk and Compliance Committee and executive have considered vaccination as an important measure to prevent infectious disease outbreaks and provide safe and quality care to clients. The issue of influenza vaccinations becoming mandatory as a means of complying with statutory duties took on greater importance as a result of the Coronavirus pandemic.
[153] Mr Reading stated that, on and from March 2020, he and other members of the executive met regularly (initially weekly and then fortnightly) to discuss how the Respondent could continue operating in a pandemic. During these discussions, the members considered matters such as best practice requirements, the statutory requirements including those of the accreditation system, clinical risk management and the ethical position in regard to protecting clients. All of these aspects informed the Respondent’s decision to mandate the influenza vaccination for its workforce. In the Respondent’s view, the introduction of public health notices requiring mandatory influenza vaccination for residential aged care services recognises the risks of influenza to those who are receiving aged care, and the Respondent recognises the risk extends to its elderly and immunocompromised, community-based clients.
[154] Mr Reading referred to the Australian Immunisation Handbook which recommends influenza vaccination for carers, and noted that the Standards require Respondent to prevent infectious outbreaks and adopt best practice, having regard to the Australian Immunisation Handbook. Mr Reading stated that, by mandating influenza vaccinations of its entire workforce (including the home care workforce), the Respondent improves the safety of its clients and responds to the Charter’s requirement by reducing their risk of infection from its workforce. It is reasonably foreseeable to the Respondent that its clients may be infected with influenza and as such requiring staff to be vaccinated against influenza will reduce the risk of transmission to them.
[155] Mr Reading noted that, in addition to addressing the risk to clients, it is in the interests for the health and safety of the Respondent’s staff that they be vaccinated so they do not contract influenza in the workplace. This is because it is self-evident that several of the Respondent’s clients are immunocompromised and may have transmissible disease.
Present day
[156] Mr Reading stated that the required level of governance oversight on vaccine preventable diseases has increased as the Coronavirus pandemic has been ongoing. The Respondent’s Board requires Mr Reading and CEO, Anthony Godfrey, to report on vaccination status (influenza and COVID-19) of all employees on a regular basis.
[157] Mr Reading stated that the Australian Aged Care Quality Agency would generally visit the Respondent’s community care branches once in a three-year accreditation cycle. In 2017, new standards in community care requiring increased infection control were introduced. The last audit of community care occurred in November 2021 as audits were postponed in 2020 due to the Coronavirus pandemic. The Respondent’s most recent audit featured a significant degree of scrutiny on infection control measures, specifically issues such as staff and client vaccination and its own infection control training and practice. Staff vaccination records were examined. Mr Reading said he expected the increased scrutiny on the Respondent’s infection control processes will continue in the future, and that he is confident the steps the Respondent have taken, including mandating influenza vaccination, will be an important feature of its successful ongoing accreditation.
[158] Following the hearing in this matter, a Full Bench of the Commission, with Justice Ross presiding, issued the decision of Construction, Forestry, Maritime, Mining and Energy Union v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal (the Mt Arthur decision). 24 The Mt Arthur decision found on a preliminary basis that a COVID-19 vaccine mandate implemented by BHP was unlawful, on the basis that BHP had failed to undertake the consultation required, pursuant to the relevant industrial instrument. Noting the potential relevance to the current matter, parties were invited to make written submissions addressing the Mt Arthur decision. Both parties provided submissions on consultation in response to that decision.
Summary of the Applicant’s consultation submissions
[159] The Applicant in the current matter noted that in the Mt Arthur decision, the Full Bench determined that it was not a lawful and reasonable direction for the mine management to announce on 7 October 2021 that all workers at the mine must be vaccinated against Covid-19 as a condition of entry by set dates of a single dose by 10 November 2021 and full vaccination by 31 January 2022 due to the failure of Mt Arthur Coal to meaningfully consult with affected employees. 25
[160] The Applicant submitted that similarly, the Respondent in the current case, when implementing the mandatory influenza vaccination, did not meaningfully consult with employees, such as the Applicant, (who carried out the relevant duties and were directly affected by the requirement to have the influenza vaccination by 1 May 2020). The Applicant submitted that employees were advised mandatory influenza vaccination was a ‘fait accompli’.
[161] The Applicant argued that the Mt Arthur decision supported that; given the risk to the Applicant, due to her medical contraindication of Guillain-Barre syndrome, (which was confirmed by the General and Intensive Care Physician, Dr Malcom Wright); it was unlawful and unreasonable for the Respondent to mandate the influenza vaccination with:
A. No consultation with affected employees;
B. No exemptions whatsoever; and
C. The resultant termination of the Applicant’s employment because she could not comply with the mandate.
[162] However, the Full Bench in the Mt Arthur decision determined that reasonableness is a question of fact, having regard to all the circumstances, 26 including consideration of consultation obligations under the New South Wales Workplace Health and Safety Act. Similar laws apply to the Applicant due to the enactment of the Workplace Health & Safety Act 2011 (Qld) which, under s.47 requires consultation with those who carry out the relevant duties and who are directly affected by the change.
[163] The Applicant submitted that she carried out the relevant duties, but was directly affected by the major change to mandate the influenza vaccination for all of the Respondent’s employees. That is, not only those who worked in Residential Aged Care Facilities (RACF), as required by the Chief Health Officer (CHO) Direction (No 2), but significantly also in community aged care. The Respondent considered the risk to clients and employees was greater in the community aged care service.
[164] The Applicant submitted that the Mt Arthur decision supports the Applicant’s contention that the Respondent’s mandating of influenza vaccination for all staff, without consultation with affected employees and without consideration of the endangerment to the Applicant’s life or health was unlawful and unreasonable.
Summary of the Respondent’s consultation submissions
Mt Arthur decision
[165] In the Mt Arthur decision, the Commission held that the Covid-19 vaccination requirement of a particular employer was prima facie lawful. 27 The Commission also held the particular employer’s mandatory vaccination requirement was not reasonable. The major and determinative factor that led to the unreasonableness was the deficiency in consultation by the employer as required under work health and safety legislation.28
[166] The Respondent noted that the Mt Arthur decision concerns a different industry and different set of facts to the present matter. The decision to introduce a mandatory Covid-19 vaccination requirement was made by Mt Arthur in October 2021, 29 20 months after a public health emergency was declared relating to Covid-19. Mt Arthur submitted it conducted a risk assessment and had documentation relevant to the vaccination requirement, which could have been shared with staff (and was not). Mt Arthur also had additional statutory obligations under the Work Health and Safety (Mines and Petroleum Sites) Act 2013 (NSW) to appoint and consult with a health and safety representative, and it did not.
[167] The Respondent argued that the issue for the Commission to determine in this matter arising out of the Mt Arthur decision is: did Ozcare comply with its statutory consultation obligations before deciding to introduce the mandatory influenza vaccination requirement? Having regard to the context and circumstances in early 2020, the Respondent submitted that the answer is yes.
Statutory consultation obligations
[168] The Respondent submitted that the ‘metes and bounds’ of its obligation to consult is delineated by the terms of the Work Health and Safety Act 2011 (Qld) (WHS Act). 30
[169] The Respondent submitted that it has a duty under section 47 of the WHS Act to consult with workers directly affected by (or who are likely to be directly affected by) a matter relating to work health or safety, so far as is reasonably practicable. Section 48 prescribes acts of consultation which should occur. Relevantly, consultation should occur:
A. when identifying hazards and assessing risks to health and safety arising from the work carried out or to be carried out by the business or undertaking; and
B. when making decisions about ways to eliminate or minimise those risks.
[170] In Slivak v Lurgi (Australia) Pty Ltd, 31 Gaudron J described the notion of “reasonably practicable”, in the context of fulfilment of a safety obligation, as follows:32
“The words ‘reasonably practicable’ have, somewhat surprisingly, been the subject of much judicial consideration. It is surprising because the words ‘reasonably practicable’ are ordinary words bearing their ordinary meaning. And the question whether a measure is or is not reasonably practicable is one which requires no more than the making of a value judgment in the light of all the facts. Nevertheless, three general propositions are to be discerned from the decided cases:
‘the phrase ‘reasonably practicable’ means something narrower than ‘physically possible’ or ‘feasible;
what is ‘reasonably practicable’ is to be judged on the basis of what was known at the relevant time;
to determine what is ‘reasonably practicable’ it is necessary to balance the likelihood of the risk occurring against the cost, time and trouble necessary to avert that risk.’”
[171] In Baiada Poultry Pty Ltd v The Queen, 33 the High Court adopted a similar approach concluding:34
“All elements of the statutory description of the duty were important. The words ‘so far as is reasonably practicable’ direct attention to the extent of the duty. The words ‘reasonably practicable’ indicate that the duty does not require an employer to take every possible step that could be taken. The steps that are to be taken in performance of the duty are those that are reasonably practicable for the employer to take to achieve the identified end of providing and maintaining a safe working environment. Bare demonstration that a step could have been taken and that, if taken, it might have had some effect on the safety of a working environment does not, without more, demonstrate that an employer has broken the duty imposed by s 21(1). The question remains whether the employer has so far as is reasonably practicable provided and maintained a safe working environment.”
[172] The content of any specific requirement to consult is also determined by the context, including: 35
A. the circumstances in which the obligation is enlivened;
B. the factual context in which the requirement arises, including the size and nature of the business and the nature of the change which is the subject of the consultation and the impact of that change on the persons who are required to be consulted; and
C. whether the factual circumstances dictate a quick response.
[173] The Respondent submitted that Ozcare had consulted in the circumstances of the business at the time ‘so far as was reasonably practicable’
[174] Further, the Respondent submitted the concept of staff vaccination as a means of minimising risks to health and safety was not something new for Ozcare. Ozcare already had an immunisation policy which mandated Hepatis B vaccination. Ozcare also strongly recommended (and funded) other types of vaccinations, including influenza. Employees who were not vaccinated were required to complete a vaccination declination form, in which they acknowledged the risks of working as an unvaccinated employee. In this way, the hazard or risk (infectious diseases) and the ways to eliminate or minimise those risks (being the things to which section 48 of the WHS Act requires consultation) had already been in operation. However, whilst the Applicant had been allowed to be previously exempt from the influenza vaccination program, the circumstances of the pandemic had dramatically changed the ability of the employer to allow an unvaccinated clinical nurse to continue in her role which required duties that could not be modified to avoid direct contact with clients.
[175] The Respondent argued that it was faced with circumstances (specifically detailed later) requiring a quick response to manage the risk of potentially fatal consequences. In doing so, it amended its policy to mandate, in particular the influenza vaccination. Little was known about Covid-19. There was no vaccination against Covid-19. The Respondent already had stringent infection control processes and an immunisation policy. If section 48 of the WHS Act required the Respondent to consult with workers about amending its policy, it was not reasonably practicable for over 4,600 workers to contribute, given the short timeframe in which a decision was required to be made, having regard to the risk. In any event, the Respondent submitted that it did consult with workers, the operational managers across the business who were themselves responsible for workers in their respective divisions. This occurred before its decision to amend the policy to require vaccination. In the circumstances, having regard to the existing policy, and the urgency of the situation, consultation with workers occurred so far as was reasonably practicable. These are important distinguishing features from the facts and circumstances in the Mt Arthur decision.
[176] The Respondent submitted that it went on to consult extensively over a 15-month period with the Applicant and the QNMU following the announcement of the vaccination requirement, including in relation to the risk of the Applicant’s own health and safety, should she receive the influenza vaccine.
[177] The Respondent submitted that no issue of compliance with sections 47 and 48 of the WHS Act arose, because the Respondent had consulted with workers so far as was reasonably practicable in relation to immunisation and infection control, before it amended its policy to make the influenza vaccination mandatory. The Respondent argued that on this basis, the influenza vaccination requirement was lawful and reasonable and there was a valid reason for terminating the Applicant’s employment.
Section 387 of the Act
[178] It is necessary in considering whether the dismissal is harsh, unjust or unreasonable, to have regard to the matters in s.387 of the Act:
s.387(a) - whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees)
[179] The Applicant was dismissed for her failure to meet the ongoing requirements of her role, in terms of the non-compliance with the mandatory influenza vaccination policy, (on the basis of her medical condition). The Applicant could not meet the inherent requirements of her role and reasonable accommodations could not be made to alter her required duties. There were no other roles to redeploy her to that did not also require the vaccination.
[180] The Respondent submitted that it required its workforce to be vaccinated against the influenza virus as a means of reducing, so far as is reasonably practicable, the risk of the transmission of the influenza virus between its staff, the vulnerable clients in its care, and the community. Dr Lingwood gave evidence that the vaccination of staff against influenza significantly reduces the risk of transmission of the influenza virus. The step was necessary for their aged care operations.
[181] The evidence of Dr Lingwood was clear in explaining the Respondent’s requirement to implement the vaccine mandate within the business. His evidence was that this vaccine mandate was a necessary and reasonable step, having regard to the Respondent’s requirement to safeguard their clientele and operations.
[182] The Respondent’s evidence demonstrated that direct contact with staff and clients was an integral part of the Applicant’s role, and that it formed an inherent requirement of the Applicant’s position as a clinical nurse. Therefore, her duties could not be adjusted to remove client contact. This would have involved a permanent alteration to the role, to result in a job that could not complete the duties or provide the necessary care tasks and functions necessary to this senior position in these aged care operations. The Applicant’s role required direct contact with clients.
[183] The Applicant confirmed (in cross-examination set out below) that there were circumstances where, as part of her role as a clinical nurse, she was required to attend the homes of patients, for example, where a death had occurred. The Applicant’s evidence confirmed that her role could not be completed remotely, nor could it be completely delegated to a more junior staff member;
“For example, if one of those community care clients passed away in the middle of the night you had occasion as the clinical nurse to have to go out and attend - - -?---If I was on call, yes.
Well, it's happened, hasn't it?---It has happened, yes. Sorry, I didn't understand you meant after hours as well. I was just taking you meant on a day-to-day basis, but I did the rostering, so, you know, I would - if I needed to see somebody, I did, but I could have easily seen someone under 65, or less vulnerable. But, yes, I have been out to a death - to deaths, especially after (indistinct).
When you do go out to a death situation, you'd normally expect to be involved in the home environment for two to three hours?---Not two to three hours usually.
Well, how long?---We would usually - probably up to an hour. It just depended on what the family wanted, whether they - because our primary purpose for going out was to complete the life extinction form, to assess that patient to ensure that they have indeed died, and then it was just up to the family, whether they wanted us to give the person a wash or to phone the funeral home, that sort of thing. So most visits we're not past an hour or so. We just got paid for three hours for a call-out. That's where the three hours usually came in.
In any event, when you went out on those occasions, inevitably you were dealing with a grieving child, partner, other family members, sometimes numerous folk?---Yes.
Is that correct?---Yes.
And you had no control of those situations over who you were dealing with. It was just you had to go, it was part of your job, and there were people there?---There were, yes. I must say, I didn't go to many, and a couple of the ones I did go to - well, probably more than a couple, were because the staff member who was on call couldn't attend so I had gone in their place.
But irrespective of the reason why - - -Yes, I still went.
It came with the job, didn't it?---Yes.
There were other sad cases where - let's say in palliative care, there were sometimes calls in the middle of the night because of the person becoming terribly distressed - and I don't want to (indistinct) in this, but you had occasions to go out to try to deal with situations in the middle of the night as part of your clinical nurse role, didn't you?---Yes, I did.
And what was involved in that?---Usually assessment of the patient, see what the issue was, maybe call an ambulance, just deal with whatever, I guess, symptoms were arising, situations arising.
And again, normally, you would expect to be dealing with a partner or a child or some other person in a caring role, person or persons?---Yes.
When you're there?---Yes. That is correct, yes.
Again, you really had no control over whom you dealt with when you went out in the middle of the night to deal with those situations?---That's correct.” 36
[184] Mr Foley, COO of the Respondent, also gave evidence that the nature of the Applicant’s role involved attending patient’s homes, where they could be exposed to any number of persons at those locations, and that the nature of the care provided, and the profile of their clients justified the mandatory influenza vaccination policy. These matters were put to the Applicant:
“It was put to you that in relation to clients in the community care service that Ozcare provides that in general there would be one or two people in the home. Is that necessarily correct?---No, there could be multiple people in the home and multiple visitors that come and go that we may or may not have sight of.
Insofar as particular communities are concerned, do you have any knowledge of the numbers in the homes of residential - sorry, of community care clients - in particular communities?---No, I wouldn't - not one community over another.
In any event, does Ozcare have any control over the number of persons that come or go from a home of a community care client?---Absolutely not.” 37
[185] Mr Foley explained the aged care community service provided greater risk parameters than managing aged care residential facilities. He explained that the hygiene controls that have been able to be implemented in the residential aged care facilities have not been possible in the community aged care setting. These are detailed later in the decision.
[186] In assessing whether there was a valid reason for the dismissal, it was necessary to consider the possible modification to the Applicant’s role. The “inherent requirement” of a job had been considered in the High Court decision of X v Commonwealth, 38 which concerned a defence force policy. The High Court held that the “inherent requirement” of a position, is not limited to an examination of “the physical ability to carry out the physical tasks of the position.” The duties required were important to assess. In this respect, the client contact parts of the current role were examined.
[187] In the current matter, the Applicant’s Clinical Nurse job in the Community Care Program, required clinical oversight of nurses who visited clients, as well as activities related to the service provision of the Respondent’s programs. The tasks entailed direct contact with clients, when required in terms of visits to their homes to assess the clients and the relevant care. In addition, direct client contact was necessary in taking medical information for the ‘lifestyle programs’, administering vaccination clinics and required contact with clients in community care to facilitate the clinical nursing case services provided. The tasks also included managing intake and other enquiries about community clients, such as scheduling and cancelling of client visits. These tasks were also undertaken in the office, with other staff and nurses. This allowed for direct contact to provide the optimum operations and service. The Applicant advised she also liaised with other service providers on behalf of clients.
[188] The Applicant submitted that her role did not require direct client contact and that there was capacity for the Applicant to limit her contact with colleagues, who visited clients in the community. The Respondent opposed this assessment of the role, and the evidence demonstrated that direct client contact was required of the Applicant. The exhibited client contact sheet provided evidence of the face to face client contact the Applicant had been involved in, for example in visiting client homes on the passing of a client, in order to undertake associated necessary duties and visit with the family. The evidence also presented that her duties also involved directly resolving complaints from families about registered nurses in client homes and complex wound care that could not be satisfactorily done remotely, by phone or computer, but required her direct nursing attention and client contact.
[189] Ms Farlow the Branch Manager provided very measured evidence regarding the continued expectation and requirement for the Clinical Nurse to have direct contact with registered nurses and clients in their community care. She noted that there was some variation as to the amount of contact between branches, however she disagreed with the evidence of Ms Brant and emphasised that face to face conduct could not be eliminated from the role.
[190] Ms Farlow stated that the Applicant would necessarily also come into contact with clients when undertaking her vaccination clinic and the life screen duties which involved taking blood and medical histories and health assessments directly from clients. Further, she could not provide the clinical nurse service virtually, that is without contact with clients and nurses. It was not feasible that in seeking the Applicant’s advice, a registered nurse could hold a phone, or video or photograph a critical wound to try and relay the specific circumstances of the wound or the patient circumstances and to receive accurate and reliable clinical advice in relation to the treatment. It was explained this was also not appropriate nursing for their community clients or appropriate assistance on an ongoing basis for the registered nurses. Ms Paul was the only clinical nurse in Mackay and was the acting branch manager, which required direct contact with registered nurses, in relation to advice and assessment, to provide the relevant clinical assistance, for wound care, palliative care and directly assisting nurses in their duties. This also required liaising with clients for operational matters and to supervise the service where required.
[191] In the current matter, the Applicant has a recognised medical condition, but the employer is not able to manage the risk to allow the Applicant to continue in her duties without the influenza vaccination, (in providing the required service to elderly and vulnerable clients in the community setting of the aged care community service that the Respondent provided). Ms Duncan took over the position from Ms Paul and evidence of her client visitation from May 2020 to November 2021 records her direct client visits in discharging the role. A continuation of that service is required by the employer. The inherent requirements of the job require contact with clients. This and the interaction with staff could not be eliminated from the inherent requirements of the position.
[192] In implementing the mandatory influenza vaccination policy and the decision to not grant the medical exemption to the Applicant, the following context of the circumstances of the decision (and the consultation), with regard to the Respondent’s operations, are compelling:
A. Ozcare employs 3,771 staff, has 200 volunteers and over 700 student placements annually. 1,427 of these staff work in home care.
B. Ozcare provides home care to 13,000 clients across Queensland. The homes of these clients are “workplaces”.
C. Almost all of Ozcare’s home care clients are aged 65 years and above. 80 percent of Ozcare’s home care clients are considered vulnerable (in that they have compromised immune systems, they have chronic medical conditions or have chronic respiratory conditions).
D. In addition to work health and safety obligations, Ozcare owes duties to its home care clients in accordance with various statutory regimes, and this is regulated by the Aged Care Quality and Safety Commission.
E. A public health emergency was declared in relation to Covid-19 in Queensland on 29 January 2020. Ozcare already had in place stringent infection control policies and processes, including in relation to the influenza virus.
F. In the early stages of the pandemic, little was known about Covid-19 other than it was a serious respiratory disease with no vaccination, it could be fatal, it spread quickly and those with compromised immune systems and the elderly were at risk. Anecdotal evidence available to Ozcare at the time suggested that someone contracting influenza and Covid-19 could be fatal for Ozcare’s clients.
G. Ozcare’s senior operational managers were meeting on a regular basis to discuss the organisation’s response to the pandemic. Line managers were encouraged to provide feedback following their discussions with staff and clients. Clients, their families and their carers were raising concerns across all divisions of Ozcare’s business regarding the steps Ozcare were taking to ensure the safety of those receiving care.
H. On 21 March 2020, Queensland’s Chief Health Officer (CHO) issued a direction mandating influenza vaccination for visitors of residential aged care facilities from 1 May 2020. The vaccine mandate was not extended to home care workers. Nevertheless, Ozcare considered that clients receiving home care and staff providing that service were at greater risk of catching and spreading infectious disease when compared to a residential aged care facility.
I. Around this time, Ozcare had temporarily closed all corporate support offices, all community branch offices and day respite centres. Additionally, nearly 2,000 of Ozcare’s home care clients stopped carers coming into their homes because they feared their safety. Some clients went without showers, had to do their own cleaning, administer their own medication and in some cases, manage to get out of bed without assistance. Ozcare was also dealing with a Covid-19 scare in Rockhampton.
J. In light of the information available to Ozcare and its current practices, on Thursday, 26 March 2020, Ozcare’s Chief Executive Officer, Group Manager People and the Chief Operating Officer held a meeting to discuss the possibility of extending the CHO’s vaccine mandate to require influenza vaccination for all employees in client facing roles from 1 May 2020. A second meeting was held on Tuesday, 31 March 2020. A third meeting was held with additional senior operational managers representing all areas of the organisation (including Community Care, Risk and Compliance and Aged Care) on Thursday, 2 April 2020 to discuss extending the mandatory influenza vaccination requirement. Following this meeting, the Immunisation Policy was updated to mandate the influenza vaccine for all client facing workers.
[193] Mr Foley gave evidence that the risk to clients and staff in a community care setting exceeded those in a residential aged care setting. He specifically set out the additional measures that can be taken in a residential care facility setting, that are not similarly able to be undertaken in a community care setting, where such ‘controls’ are not possible. He referred to significant measures that were able to be implemented in aged care facilities in terms of either eliminating visitors or checking entrants and their temperatures:
“…The point that I'm making, in any kind of controlled environment such as this environment that we, Ozcare, has charge of, it is controlled in the sense that I know that someone is coming through and wiping down every surface of this environment three, four, five times a day, that before a carer moves from client A to client B, that there's a protocol that they will go through to make sure that they are not contaminating from one room to the other. So, it's certainly a much more, considerably more controlled environment than the community.
We have no - and certainly our community care clients do go out, and go out often, and have many visitors, I would assume, and those environments, we're not in wiping down surfaces, et cetera, from visitor to visitor.” 39
[194] The operational context of the Respondent’s decision to implement the mandatory vaccination policy is recognised and demonstrated the reasons for the mandatory influenza policy. The evidence provided supported the Respondent’s position that it was not reasonable to adjust the Applicant’s position of clinical nurse to remove the requirement for direct contact with clients and staff. On the evidence provided, the inherent requirements of the Applicant’s job, was to be directly accessible to clients, residents for particular client care needs and for practical assistance and advice regarding this care to nurses. This required face to face contact.
[195] The evidence also confirmed that in the circumstances, it was not reasonable for the Respondent to permit an exemption to the influenza vaccine for the Applicant, as to do so would not have negated the risk owed to the health of safety of other employees and the Respondent’s vulnerable clients.
[196] The evidence and material before the Commission supports a valid reason to dismiss the Applicant’s employment, on the basis that she was unable to fulfil the inherent requirements of her role, on an unvaccinated basis.
[197] In circumstances where the employer’s vaccination policy was a lawful and reasonable direction, the Applicant did not have the ‘capacity’ to perform the inherent requirements of the role, without the vaccination. Compliance with the mandatory influenza immunisation policy was reasonable and lawful. The Applicant’s dismissal was based on a valid reason.
[198] These matters of a valid reason weigh against a determination that the termination was harsh, unjust or unreasonable.
(b) whether the person was notified of that reason
[199] There was a series of correspondence detailing the need to implement the mandatory vaccination policy. The Applicant was notified of the reasons in early pieces of correspondence on the basis for the vaccination policy and later in the show cause letter, as to why her employment may be terminated, and again in the termination letter.
[200] The Applicant conceded that she was notified of the reasons for the termination by way of written correspondence. Accordingly, this element weighs against a finding that the termination was harsh, unjust or unreasonable.
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person
[201] After comprehensive email exchanges between the parties (as set out earlier) on the mandatory influenza vaccination requirement, the Applicant was provided with a show cause letter on 14 May 2021, where she was given an opportunity to show cause why her employment should not be terminated for the failure to meet the ongoing requirements of the role. The QNMU provided a written response to the show cause letter on the Applicant’s behalf, by email, on 4 June 2021.
[202] Section 387(c) requires the Commission to consider whether Ms Paul was given an opportunity to respond before Ozcare’s decision to dismiss was made. This opportunity does not require any formality and is applied in a commonsense way, as set out in the decision of RMIT v Asher: 40
“Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements of this section.” 41
[203] The Respondent set out that the Applicant’s dismissal was preceded by a 15-month period of consultation, with the Respondent taking the following steps to clarify the immunisation policy:
• On 3 April 2020, Ms Paul was notified of the requirement to be vaccinated against influenza by 1 May 2020.
• On 8 April 2020, Ms Paul was notified again of the requirement to be vaccinated against influenza by 1 May 2020.
• On 14 April 2020, Ozcare became aware that Ms Paul was concerned about receiving the influenza vaccine because she reported having GBS.
• On 15 April 2020 Ozcare provided Ms Paul with information about GBS and influenza vaccination.
• On 17 April 2020, Ms Paul provided Ozcare with a medical certificate from Dr Patricia Wong which stated that she “has a history of Guillain Barre Syndrome” and “after discussions and due consideration I feel that it would be detrimental for Evelyn to have the flu vaccination”.
• On 20 April 2020, Ms Paul was informed that because of her objection, she would not be rostered to work from 1 May 2020.
• On 27 April 2020, Ms Paul informed Ozcare she did not consent to Dr Andrew Lingwood discussing her circumstances with Dr Wong.
• From 1 May 2020, Ms Paul was not permitted to enter Ozcare’s community care branches, facilities or client homes. Ms Paul was permitted to be based at home on a temporary basis whilst she investigated her ability to receive the vaccine, provided that she did not have any client contact.
• On 7 May 2020, Ms Paul offered to discuss her circumstances with Dr Lingwood directly.
• On 15 May 2020, Ms Paul commenced a period of personal leave.
• On 28 May 2020, Ms Paul disputed the vaccination requirement, and Ozcare’s refusal to provide her an exemption to the vaccination requirement.
• On 3 June 2020, Ozcare met with Ms Paul and a representative from the Queensland Nurses and Midwives Union (QNMU) to discuss her dispute.
• On 8 June 2020, Ozcare wrote to Ms Paul regarding her capacity to undertake her current position, noting she would not be rostered to work.
• On 28 August 2020, Ms Paul confirmed to Ozcare that her position in relation to vaccination had not changed.
• On 21 October 2020, Ozcare wrote to the QNMU regarding Ms Paul’s capacity to undertake the position of Clinical Nurse, noting there were no alternative roles for Ms Paul to perform.
• On 5 March 2021, Ozcare again wrote to the QNMU regarding Ms Paul’s capacity to undertake the position of Clinical Nurse, and sought proposals for any reasonable adjustments to that position.
• On 15 March 2021, the QNMU, on Ms Paul’s behalf, wrote to Ozcare objecting to the vaccination requirement and proposing adjustments to the position of Clinical Nurse, including removing the requirement for direct client contact.
• On 26 March 2021, Ozcare wrote to the QNMU noting the adjustments the QNMU and Ms Paul had proposed were not reasonable, and sought Ms Paul’s views about further investigation into her ability to receive the vaccine. Neither the QNMU or Ms Paul responded.
• On 14 May 2021, Ozcare wrote to Ms Paul asking her to show cause why her employment should not terminate on the basis she failed to meet the ongoing requirement of her role that she receive an annual influenza vaccination, and consequently remained absent from work.
• On 4 June 2021, the QNMU responded to the show cause correspondence and noted, amongst other things, that Ms Paul had not been asked to undertake further assessment regarding her ability to be vaccinated.
• On 21 June 2021, Ms Paul was directed by Ozcare to attend a medical examination to assess her ability to receive the influenza vaccination, to which she consented.
• On 28 July 2021, Ms Paul attended an examination with Dr Malcolm Wright in Brisbane, at Ozcare’s expense.
• On 9 August 2021, Ozcare received Dr Wright’s report.
• On 18 August 2021, Ozcare terminated Ms Paul’s employment.
[204] The chronology of the consultation demonstrates the steps (in relation to the mandatory immunisation policy) taken over the 15-month period, as set out above. It is concluded that in considering the whole process, clear opportunities to respond were provided to the Applicant. The Applicant was provided with clarity on the reasons, but also a clear opportunity to respond. The lengthy exchange of email correspondence (between the parties) on the issue has been summarised. This criterion, having been met, therefore weighs against a finding that the dismissal was harsh, unjust or unreasonable.
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal
[205] The Applicant was represented by the QNMU throughout the process and conceded that she was allowed a support person from the QNMU at all times. This procedural matter was complied with and weighs against a finding that the dismissal was harsh, unjust or unreasonable.
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal
[206] The Applicant was not dismissed for reasons pertaining to unsatisfactory performance. The Employer’s representative very clearly emphasised there were no performance issues. This factor is considered neutral in considering whether the dismissal was harsh, unjust or unreasonable.
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and (g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal
[207] The Respondent is a large employer, with over 3700 staff, including dedicated human resources and access to legal advice. The process was detailed and procedurally fair in the circumstances. This criterion weighs against a determination that the dismissal was harsh, unjust or unreasonable in the circumstances.
(h) any other matters that the FWC considers relevant
[208] The Applicant submitted that the dismissal was harsh as she was a long-term, dedicated employee. It was further submitted that the lengthy period of consideration during which the Applicant depleted her leave entitlements, and the dismissal had a negative impact on the Applicant’s mental state. She submitted that she developed an adjustment disorder, (requiring psychological intervention) at a financial cost to the Applicant. No medical evidence on this matter was provided. During this lengthy period of consultation, further medical assessment as requested by the Applicant and her Union was undertaken.
[209] The Applicant stated that her age and the small community of Mackay, in which she lived has resulted in her only being able to obtain casual and temporary contracts of employment, during the period of her stand down and since her dismissal. It was volunteered by the Applicant that there had been impediments (due to her unvaccinated status) with her further employment after dismissal. At the time of the hearing, the Applicant had been stood down from her further employment as she was still deciding whether to have the covid vaccination. The Respondent submitted that they would have required the Applicant to have the covid vaccination to continue in employment.
[210] Significant evidence was provided in support of the argument that the Applicant’s role entailed unavoidable aspects of client contact. The evidence demonstrated that there were required duties involving client contact, that could not be delegated or performed remotely.
[211] The risks associated with having an unvaccinated person engaging in the face to face contact required of the Applicant’s role were set out by the Respondent. The Respondent was in a position where they had to balance their duty to their clients and other employees (with the risk of influenza), with the Applicant’s employment continuing with limitations on key duties. The Respondent’s evidence was cogent in this regard, and their termination response was reasonable in the circumstances of the operations.
[212] The issue of the Applicant’s medical condition was given significant consideration by the Respondent. Mr Foley, COO of the Respondent, gave particular evidence (in the below cross examination) regarding the risk to vulnerable persons (under the care of an unvaccinated person such as the Applicant), and that these risks are not obviated by the Applicant having a medical exemption to receiving the influenza vaccination:
“MS ROCHE: So were you talking about COVID there, COVID vaccinations or influenza vaccinations?---Both. Influenza is certainly mandatory in residential aged care for example, at the moment.
Yes, but there's exemptions in the mandating, say from the chief health officer, that point for - and other employers have exemptions as well, the point for Ozcare is you're not allowing any exemption whatsoever on the basis of medical contraindication?---Yes. I'm not sure about what the exemptions are that would see people continue to work in an environment that creates a risk to those they're caring for.
There's no other controls that could be put in place if somebody can't be vaccinated?---No, in addressing your question are there no exemptions, as I understand it, that there are not exemptions for people who are not able to be vaccinated for COVID-19, for example, or influenza where you can continue to work with a vulnerable client, correct.” 42
[213] As a result, it was not reasonable to adjust the Applicant’s position of Clinical Nurse to remove the requirement for direct contact with clients and staff. Alternatively, it was reasonable not to permit a vaccination exemption to the Applicant, because to do so would mean the risk to the health and safety of other employees, and most importantly, Ozcare’s vulnerable clients, is not reduced so far as reasonably practicable, and when another, vaccinated, employee can and will perform the role.
[214] The Respondent submitted that it cannot be unreasonable for Ozcare to dismiss an employee holding the position of Clinical Nurse, who will never be in a position to comply with the inherent requirements of that position.
[215] The Respondent rejected the Applicant’s argument that they were not willing to modify the Clinical Nurse position for her. The Applicant sought an adjustment, of removing direct client contact from her position. The Respondent submitted that direct client contact is a core function and an inherent requirement of the role, because a Clinical Nurse in Ozcare’s community care division must be able to visit clients in their homes, including for staff training purposes, staff supervision purposes, assessment of individual client needs, management of critical incidents and backfilling as required in instances of planned and unplanned leave by registered nurses under her supervision. The Respondent submitted that the adjustments sought by the Applicant were not reasonable and would require a permanent change to her role, by also removing vaccination clinic duties and lifestyle program involvement. This would require the creation of a role, which does not exist, and which is not operationally required.
[216] The Respondent argued that it went to great lengths to understand the Applicant’s medical condition and objection to receiving the influenza vaccination during the 15-month period. The Respondent submitted that it cannot be said that its decision was made in haste, or that it had not attempted to explore the possibility of the Applicant’s employment continuing.
[217] Having considered these issues related to the other matters; these are assessed as attributing weight against a finding that the dismissal was harsh, unjust or unreasonable.
[218] The Applicant’s representative addressed the matter of remedy in their submissions, where it was submitted that reinstatement was no longer appropriate, on the basis of the Applicant’s medical contraindication to the influenza vaccine. In consideration of all the circumstances of the termination, a revised quantum of compensation was argued on behalf of the Applicant. The impact of the dismissal on the Applicant, in the circumstances of her length of service, performance record and her medical condition is recognised. The required wages in lieu of notice was paid to the Applicant on termination.
[219] The Respondent submitted that in the event the Commission finds that the Respondent’s vaccination requirement was lawful and reasonable, but that the dismissal was otherwise unfair, compensation should be assessed at zero. This is because the Applicant would never obtain the influenza vaccination, and in turn, comply with the Respondent’s vaccination policy requirement. Further, the Respondent submitted that Dr Wright opined that he could not find any contraindications to any other vaccination for the Applicant.
[220] It is recognised that the Applicant was aggrieved, given her medical condition was serious and beyond her control. However, the dismissal, in all of the circumstances was not unfair.
[221] I have taken into consideration all of the matters set out in s.387 of the Act, and for the reasons as set out above, the Applicant’s dismissal is not determined to be harsh, unjust or unreasonable in all of the circumstances as detailed.
[222] On this basis, the application pursuant to s.394 is dismissed.
[223] I Order accordingly.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
<PR741542>
5 Witness statement, Dr Andrew Lingwood, Annexure “AL-2”.
6 Witness statement, Dr Andrew Lingwood, Annexure “AL-3”.
7 Annexed peer reviewed references in support, Witness statement, Dr Andrew Lingwood, Annexure “AL-4”.
8 Annexed source material, Witness statement, Dr Andrew Lingwood, Annexure “AL-5”.
9 Annexed CDC data, Witness statement, Dr Andrew Lingwood, Annexure “AL-6”.
10 Annexed source material regarding this opinion, Witness statement, Dr Andrew Lingwood, Annexure “AL-7”.
11 Annexed research, Witness statement, Dr Andrew Lingwood, Annexure “AL-8”.
12 Annexed peer reviewed references in support, Witness statement, Dr Andrew Lingwood, Annexure “AL-4”.
13 Information obtained from the influenza specialist group (ISG) and CDC regarding transmission of influenza, Witness statement, Dr Andrew Lingwood, Annexure “AL-9”.
14 Annexed CDC website discussing key facts about influenza, Witness statement, Dr Andrew Lingwood, Annexure “AL-10”.
15 Peer reviewed systematic review of the effectiveness of the influenza vaccination annexed, Witness statement, Dr Andrew Lingwood, Annexure “AL-13”.
16 References to information relating to GBS and influenza vaccination annexed, Witness statement, Dr Andrew Lingwood, Annexure “AL-13”.
17 Witness statement, Dr Andrew Lingwood, Annexure “AL-14”.
18 Copy of research annexed, Witness statement, Dr Andrew Lingwood, Annexure “AL-15”.
19 Annexed User Rights Principles 2014 (Cth), Witness statement, Joel Reading, Annexure “JR-1”.
20 Annexed Quality of Care Principles 2014 (Cth), Witness statement, Joel Reading, Annexure “JR-2”.
21 Annexed ASQC guidance, Witness statement, Joel Reading, Annexure “JR-3”.
22 Annexed ASQC guidance, Witness statement, Joel Reading, Annexure “JR-4”.
23 Witness statement, Joel Reading, Annexure “JR-5”; Witness statement, Joel Reading, Annexure “JR-6”.
25 [2021] FWCFB 6059 at [252] – [253].
26 Ibid at [79].
27 Ibid at [85].
28 Ibid at [251], [253] and [265].
29 Ibid at [156].
30 This was accepted by the Full Bench in Mt Arthur Coal at [113].
31 [2001] HCA 6.
32 Ibid at [53].
33 (2012) 246 CLR 92.
34 Ibid at [15].
35 Mt Arthur decision at [113].
36 Paragraphs [240] to [253] of the transcript.
37 Paragraphs [1414] to [1416] of the transcript.
38 (1999) 200 CLR 177.
39 PN1376 to PN1377.
40 (2010) 194 IR 1.
41 Ibid at [26].
42 Paragraphs [1402] to [1405] of the transcript.