Fair Work Commission decides it was fair to fire elderly NSW healthcare worker who refused flu shot


The Fair Work Commission felt it was fair that a receptionist at an elderly care facility should be fired for refusing to get a flu shot.

The Fair Work Commission has dismissed an appeal from a senior care worker who claims she was unfairly fired because she refused to get a flu shot.

In April, Commissioner Donna McKenna ruled it was fair to fire the receptionist at the Imlay House elderly care facility in the Sapphire Coast community in the town of Bega, NSW, because she ‘she was challenging a public health order at the time, leaving the nursing home with no choice but to let her go.

On March 24 last year, the Minister of Health made it mandatory that all elderly social workers receive a flu shot to keep staff healthy as the country braces for the coronavirus pandemic.

The elderly care worker did not provide enough evidence that she had had an allergic reaction to previous flu shots, which led to her eventual deportation.

On Monday, a majority of the entire Fair Work Commission judiciary – two in three – upheld the initial ruling and dismissed the worker’s appeal.

The decision will inevitably have an impact on discussions around vaccinations against Covid-19 in the workplace, in particular with the jab now mandatory in all elderly care facilities in the country.

The woman had been at Imlay House for seven years, working in the kitchens for the first five, then as receptionist for the rest, where she often interacted with the elderly residents as she had to show visitors their rooms.

This worker received an influenza vaccine, administered through the retirement home, in 2015 and 2016. However, for 2017, 2018 and 2019, she did not receive an influenza vaccine.

She claimed to have suffered from “major and debilitating skin inflammation” which “covered the upper part of my body, face and neck with internal organs also affected” and “which persisted for many months” because of the shot in 2016.

She believed it was a “serious allergic reaction” to the flu shot.

However, the Fair Work Commission noted: “There was hardly any detail given on this condition…

“(She) did not prove that she had ever sought medical treatment for this alleged condition …

“She never informed anyone in Sapphire’s management at the time that she believed she had suffered an adverse reaction to the flu shot.”

She argued with her boss, citing letters from a Chinese herbalist who was treating her skin problem.

The Chinese medicine practitioner claimed that “an ancient formula used to strengthen the immune system by activating T and B cells” would prevent the elderly caregiver from contracting the flu or Covid-19, making a flu shot unnecessary for her. customer.

The Commission considered that this Chinese medicine expert was “clearly not based on medical science”.

This time, a general practitioner intervened, saying the worker should be exempt from the vaccine because she had suffered from allergies.

The Fair Work Commission said “there is no suggestion in the letter or anywhere in the evidence” that she had seen this GP before.

The general practitioner had also only been practicing in the region for a year.

“The obvious inference to be drawn from the letter is that the whole basis for (the doctor’s) claim that (the worker) had previously had an adverse reaction to the flu shot was what she told him.” , said the Commission’s decision.

She then sent a “long” letter to her boss, saying, “My research has led me to numerous studies which also support my conclusion that a flu shot is not completely safe or effective.”

She described the search as “I wentogle all kinds of things.”

The Commission noted: “Much of the text… appears to have been ‘a draft that I picked up from the Internet”. “

The elderly care facility fired the woman on July 6 and two weeks later filed her unfair dismissal complaint.

In another note, the Commission noted: “As of August 30, 2021, out of a total of 999 deaths in Australia caused by Covid-19, 913 were aged 70 and over, and 693 were in residential care for the elderly when they got infected. “

“Antithesis” to democracy

Although the case was won by the majority on the bench, one person was adamantly against the decision.

Fair Labor Commission vice-chairman Lyndall Dean said they denied the worker her rights “in part because of an inference that she held a general anti-vaccination stance.”

“I have never disagreed so strongly with the outcome of an unfair dismissal request,” she added.

She said the decision was “the antithesis of our democratic way of life” and that if it had been up to her, the woman would have been returned to his old job.


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