Sacking of NSW aged care worker for twice refusing flu vaccine upheld

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The sacking of an employee of Not For Profit Sapphire Coast Aged Care Group, who twice refused to have the flu vaccine, has been upheld.

The NSW Fair Work Commission upheld the dismissal of Jennifer Kimber, a former receptionist at Imlay House in Pambula, on the NSW Far South Coast, stating an employer can require staff to be vaccinated.

Ms Kimber said she had had an adverse reaction to a flu vaccine in 2016 and produced a note from a practitioner of Chinese medicine who prescribed her “immune boosting herbs”.

The decision to reject Kimber’s claim is part of a growing body of case law affirming an employer’s direction to employers to get a vaccination to be “lawful and reasonable”.

According to the Fair Work Ombudsman, Queensland is the only state so far to require its health workers to be vaccinated against COVID-19, although that may change after Prime Minister, Scott Morrison, called for nationally consistent public health orders on vaccines.

Earlier last month, the commission upheld the sacking of a childcare worker who refused a flu jab, finding that a direction to be vaccinated was lawful and reasonable.

In late March 2020, the New South Wales government put in place public health orders in response to COVID-19 requiring people working in aged care facilities to have flu vaccinations.

Commissioner Donna McKenna agreed with Sapphire Coast Aged Care Group.

“If an employee makes a personal choice not to have a flu shot, then an employer which provides residential aged care services and which is subject to a [public health order]has its own obligations,” she said.

“I find that the respondent … acted in an objectively prudent and reasonable way in not permitting the applicant to work within Imlay House absent an up-to-date flu shot.”