DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Maria Corazon Glover
v
Ozcare
(U2020/13450)

Application for an unfair dismissal remedy – whether mandated influenza vaccinations for all employees without exemption is lawful and reasonable – lack of evidence of medical contraindication – communication about public health direction to applicant misleading – other relevant matters weighed against valid reason – application dismissed.

Introduction

[1] On 9 October 2020, Ms Maria Glover (the Applicant) made an application to the Fair Work Commission (the Commission) pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging she had been dismissed from Ozcare (the Respondent) and the dismissal was harsh, unjust or unreasonable.

[2] Ozcare raised a jurisdictional objection, denying that there had been a dismissal. On 18 January 2021, I issued a decision 1 dismissing the jurisdictional objection to the application, finding that Ms Glover had been dismissed within the meaning of the Act and that her application for an unfair dismissal remedy could proceed.

[3] On 28 January 2021, I convened a Directions Hearing, where I flagged with the parties my interest in bringing the application to the attention of the President of the Commission to determine if the President would, pursuant to s.615 of the Act, direct a Full Bench to determine the merit issue. On 30 January 2021, the President emailed the parties informing them he was considering referring the matter to a Full Bench for hearing and determination. The President sought the parties’ views.

[4] On 5 February 2021, the President emailed the parties to advise that he did not propose to exercise, of his own motion, his powers under s.615 of the Act to refer the application for determination by a Full Bench.

[5] I issued directions for the filing of material and listed the matter for hearing in-person on 29 March 2021. As Ms Glover was self-represented, the parties were provided with an extract of ss.387 and 390 to 392 of the Act, as well as the Unfair Dismissal Benchbook published by the Commission.

Hearing

[6] Ms Glover appeared and gave evidence, supported by her friend, Mrs Desley Bates. Mr Leigh Howard of Counsel was granted leave pursuant to s.596(2)(a) of the Act to represent Ozcare, instructed by Mr Murray Procter and Ms Ashlee Miller of FAC Law. The following people appeared and gave evidence and were asked questions in cross-examination:

•  Dr Andrew Lingwood, Occupational and Environmental Physician;

•  Mr Joel Reading, Group Manager, Risk & Compliance, Ozcare;

•  Mr Damian Foley, Head of Community Care, Ozcare;

•  Mr Brett Warhurst, Group Manager of People, Ozcare; and

•  Mr Joseph Therkelsen, Injury Management Advisor, Ozcare.

Submissions and evidence of Ms Glover

[7] In response to the Commission’s directions, Ms Glover filed a bundle of documents that is a mix of submission and evidence. I do not say that critically but more as an explanation as to how the material is approached. Allowing for Ms Glover’s experience as a self-represented litigant it is appropriate to approach her material beneficially, whilst keeping in mind that I must act judicially and decide the matter impartially and according to law. 2

[8] Ms Glover is 64 years old and was born in the Philippines. She commenced employment with Ozcare on 14 December 2009. Ms Glover was employed as a care assistant, visiting Ozcare clients in their homes to administer care. She did not work within Ozcare’s aged care residential facilities.

[9] Ms Glover stated the following:

“I had the influenza vaccination when I was 7 years old in the Philippines. My parents told me I could have died due to allergies. My parents thought I was going to die but I did survive. They talked about not having the influenza vaccination to me. I have been left feeling terrified of the influenza vaccination and having any testing done or having an epi pen present to have a vaccination. I am terrified I will risk my life if I have the influenza vaccination after my traumatic experience I had when I was seven.”

[10] Ms Glover’s evidence is that anaphylaxis is a potentially life-threatening and severe allergic reaction, and it should be treated as a medical emergency. Anaphylaxis can occur after a person is exposed to an allergen. Ms Glover states that to her, the choice to decline the mandatory influenza vaccination was about not risking a potentially life-threatening adverse reaction.

[11] For at least the last 10 years Ozcare has implemented its ‘Influenza Vaccine Procedure’ (the Procedure). Each year, Ms Glover has completed an ‘Employee Influenza Vaccination Declination’ form. The form informed Ozcare that she was, on each occasion, declining to have an influenza vaccination due to allergies. Until recent times, Ozcare accepted the declination form and permitted Ms Glover to perform her duties without requiring her to be vaccinated against influenza.

[12] By way of letter dated 8 April 2020, and under hand of Mr Anthony Godfrey, Chief Executive Officer, Ozcare advised Ms Glover as follows:

“Dear Maria,

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 in 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 [email address for Mr Godfrey].

…

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.” (emphasis in original)

[13] Following the directions in the 8 April 2020 email, Ms Glover emailed Mr Godfrey on 14 April 2020 as follows:

“Dear Mr Godfrey,

In response to your letter about Influenza Vaccination on 8 April 2020, I am not able to have this because I have had adverse reacting to Influenza Vaccination.

The first one when I was 7years old in Philippines. My parents were informed that I could have died.

Since then I have great sensitivity even to mosquito bites, hair chemical and penicillin.

Thank you so much for you help and support through the years.” (errors in original)

[14] On 16 April 2020, Mr Warhurst responded to Ms Glover as follows:

“RE: Medical grounds for declining the influenza vaccination

Dear Maria,

Thank you for providing the information about the medical reasons you are unable to receive the influenza vaccination. Regrettably Ozcare is unable to roster you for work from 1^st May 2020 as you will become a non-vaccinated employee, creating a significant risk to the clients of Ozcare.

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.”

[15] On 20 April 2020, Mr Godfrey sent a further letter to Ms Glover as follows:

“I understand you intend to decline your mandatory influenza vaccination. I am writing to ask you to please reconsider your position as it will affect your employment with Ozcare.

As stated in my previous 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 s.362B 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 of our clients. It is now an inherent requirement of your role that you must be immunised annually against influenza.

I encourage you to please re-read Ozcare’s Employee Immunisation Policy (IPC 015) and book your appointment for an influenza vaccination as soon as possible. If you are not able to attend to this matter, please complete the Employee Influenza Vaccine Declination Form (IPF 001) and email it to [Mr Warhurst].

Unfortunately, if you are not immunised against influenza, from 1 May 2020 you will no longer be rostered to work with Ozcare or permitted to enter our premises.

Thank you for your understanding.”

[16] At the time of this email Queensland was subject to the Aged Care Direction (No.2), declared on 17 April 2020. Ms Glover’s position is that Aged Care Direction (No.2) did not require an employee to have an influenza vaccination if a person has a medical contraindication to the vaccine. Further, Ms Glover points out that she was not working in a residential aged care facility. Ms Glover states that Ozcare did not inform her of the true requirements under the relevant direction.

[17] The Aged Care Direction (No.2) is reproduced in part below:

“PART 1 — RESTRICTING ACCESS TO AGED CARE FACILITIES

4. The purpose of this Part is to restrict contact between residents and non-residents of a residential aged care facility and direct measures that aged care facilities must put in place for visitors to the facility.

Directions

5. A person must not enter, or remain on, the premises of a residential aged care facility in the State of Queensland from the time of publication of this direction until the end of the declared public health emergency unless:

a. the person is an employee or contractor of the residential aged care facility; or

b. the person's presence at the premises is for the purposes of providing goods or services that are necessary for the effective operation of the residential aged care facility, whether the goods or services are provided for consideration or on a voluntary basis; or

c. the person's presence at the premises is for the purposes of providing health, medical, personal care, or pharmaceutical services to a resident of the residential aged care facility, whether the goods or services are provided for consideration or on a voluntary basis; or

d. the person's presence at the premises is for the purposes of a care and support visit to a resident of the residential aged care facility on a particular day, and is the only care and support visit made to the resident on that day; or

e. the person's presence at the premises is for the purposes of end of life support for a resident of the residential aged care facility; or

f. the person's presence at the premises is required for the purposes of emergency management, law enforcement or the exercise of a power or function of a government agency or entity under a law; or

g. the person's presence at the premises is in the person's capacity as a prospective resident of the residential aged care facility.

6. Despite paragraph 5, a person referred to in paragraph 5(a), (b), (c), (d), (e), (f) or (g) must not enter or remain on the premises of a residential aged care facility in the State of Queensland from the time of publication of this direction until the end of the declared public health emergency if:

a. during the 14 days immediately preceding the entry, the person arrived in Australia from a place outside Australia; or

b. during the 14 days immediately preceding the entry, the person had known contact with a person who has a confirmed case of COVID-19; or

c. the person has a temperature equal to or higher than 37.5 degrees or symptoms of acute respiratory infection;

d. the person is aged under 16 years, other than in circumstances where the person's presence at the premises is for the purposes of end of life support for a resident of the residential aged care facility; or

e. after 1 May 2020, the person does not have an up to date vaccination against influenza, if the vaccination is available to the person.

Example – the vaccination is not available to a person with a medical contraindication to the influenza vaccine

….”

[18] In the Direction, Residential aged care facility means a facility at which accommodation, and personal care or nursing care or both, are provided to a person in respect of whom a residential care subsidy or a flexible care subsidy is payable under the Aged Care Act 1997 (the AC Act).

[19] Ms Glover states that Ozcare did not bring the exception in clause 6(e) of the Direction to her attention.

[20] The relevant provision regarding the requirement to be vaccinated against influenza, if the vaccination is available to the person was a requirement in various Aged Care Directions made by the Queensland Chief Medical Officer throughout 2020. On 1 December 2020, Aged Care Direction (No.14) superseded Aged Care Directive (No.13), removing the requirement for a vaccination against influenza in residential aged care facilities.

[21] In December 2020, the Queensland Health webpage stated the following in Frequently Asked Questions relevant to aged care facilities:

“Why don’t I need a flu vaccine to enter a residential aged care facility anymore?

It is no longer mandatory to have a flu vaccination to enter a residential aged care facility, as the peak of the 2020 influenza season is over, and the vaccination is no longer readily available. We will look to reinstate this requirement in 2021 as the new vaccine becomes available.”

[22] Ms Glover wrote to Mr Warhurst by handwritten letter dated 24 April 2020. The letter stated:

“Dear Mr Brett Warhurst,

Thank you for your time and effort for contacting me. Because I can’t have influenza vaccination due to allergies my work finish on 30 April 2020. I will be handed in my ID & work phone after work on Thursday afternoon.

I would like to access my sick leave of 500 hours and all my accrued leave please.

I have been working as care assistant for Ozcare for over 10 years. Do I get redundancy pay?

If was a pleasure working for Ozcare.

I’m sure I will miss all Ozcare beautiful clients.

Attached: Doctor’s Certificate

Influenza Vaccination Decline form”

[23] The ‘Employee Influenza Vaccine Declination Form’ attached to Ms Glover’s letter states:

“I understand that Ozcare has a policy has a policy mandating influenza vaccination for all employees. This policy is based upon current national guidelines for individuals who work / volunteer in health and community care settings, and also on relevant legislation. I further understand that Ozcare’s policy requires me to acknowledge in writing if I decline to participate in influenza vaccination.

I acknowledge that:

•  Influenza is a serious respiratory illness that is responsible for thousands of deaths and hospitalisations in Australia each year

•  Not being vaccinated could have life-threatening consequences for my health and for those I have contact with, including my clients, co-workers and my family

•  If I contract influenza I may spread the illness to my clients and contact before I become sick myself, as influenza virus is contagious for 24 hours before symptoms appear

•  Influenza vaccination will reduce my risk of becoming ill with influenza, help prevent the introduction of influenza to my contacts, and in the event of an outbreak help prevent the spread of the illness to others within Ozcare and to my family

•  The strains of virus that cause influenza infection change each year and my own immune protection against influenza from past vaccination lasts less than a year. Influenza vaccination is therefore recommended for me each year

•  I cannot get influenza infection from the vaccine

•  I understand that my non-participation will require Ozcare to manage me as a non-vaccinated employee / volunteer and that this may have implication including the termination of my employment or volunteer status.

I have read relevant information about influenza vaccination and had the opportunity to discuss any concerns and question with a health professional.

I have read and understood this form, but have decided to decline influenza vaccination by my signature below. I am aware that I can change my mind at any time and accept influenza vaccination, as available in the future.”

[24] Underneath this script, there is a box headed “[M]y reasons for declining influenza vaccination is:”. Ms Glover has written “allergies” and signed and dated the form 24 April 2020.

[25] Attached to the letter is a medical certificate dated 22 April 2020 of Dr Debprosad Bairagi, which provides:

“This is to certify that Ms Golver says to me she is allergic to Flu vaccine. She says that once she had Flu vaccine in the Philippines long back (when she was a child of 7 yrs old) & she developed anaphylaxis immediately after the vaccine. Onwards she never had a Flue vaccine in her life.”

[26] On 24 April 2020, Mr Warhurst emailed Ms Glover again stating:

“Joe Therkelsen, Ozcare’s Injury Management Advisor has been trying to reach you to discuss your circumstances, as it is not entirely clear from the medical form you have provided that you actually do have a medical condition which prevents you from accessing the influenza vaccination.

You are now required to discuss this further with joe before any decisions are made, and to do so before 30 April 2020.

However, I can clarify that you are not entitled to a redundancy and you will be on paid personal leave whilst this matter is investigated further.

Joe will be in contact to discuss, please ensure you take his call.”

[27] Ms Glover states that at some point she spoke with Ms Judy Wells of Ozcare. Ms Wells asked if Ms Glover had seen Mr Warhurst’s correspondence of 24 April 2020. As a result of Ms Glover not having a smartphone with access to the internet, nor home internet, she had not seen Mr Warhurst’s correspondence. Ms Glover says that Ms Wells ‘explained’ to her that her last day of work would be 30 April 2020. At the conclusion of her shift on that day Ms Glover was required to hand in her work identification and work phone. Ms Glover did so, meeting Ms Wells at the front door to the office.

[28] On 30 April 2020, Mr Joseph Therkelsen, Injury Management Advisor of Ozcare, emailed Ms Glover as follows (formalities omitted):

“Thank you for your email. I am sorry that I was not able to speak to you today.

I have copied Judy in on this email so she is aware.

Brett has provide me with a copy of your email and the attached medical certificate.

However, Ozcare would like to obtain additional medical information from your treating doctor.

To assist with this, I have attached a letter for your doctor to fill in. Ozcare is happy to pay for the cost of your doctor completing this document.

Simply get your doctor to send me an invoice and I will arrange payment.

Please provide your doctor’s response by COB on Tuesday, 05/05/20.

Your doctor can send me a copy of the completed letter by either fax or email.

Feel free to ring me if you have any questions.

Until this matter is finalised, you are able to access your sick leave and other leave entitlements.” (errors in original)

[29] In response to Mr Therkelsen’s request, Ms Glover provided a further medical certificate of Dr Bairagi dated 5 May 2020, which states:

“This is to certify that Ms Maria Glover is unable to get vaccinated with Flu vaccine (as she had anaphylaxis with Flushot in childhood) and so, she is advised not to attend her work place at Ozcare, Shailer park until the winter time (usually flue infection time) including September month has passed.”

[30] On 12 May 2020, Mr Therkelsen further corresponded with Ms Glover by email, stating:

“Thank you for speaking to me last week.

I confirm that Ozcare is seeking your permission to communicate with your GP, to obtain additional information regarding your declining to have the flu vaccine.

We need to have your permission to do this; or you can simply give our letter to your GP and he can respond directly to us. Ozcare is happy to pay for the cost of your GP providing their response.

I have attached another copy of the letter for you.

I understand that you would like more time to consider our request, however the sooner we have the information from your GP, the sooner we can move forward with your situation.

Please let me know what you decide regarding the information from your GP by COB Wednesday 13/05/20.

Thanks in advance. Hope you have a nice weekend.”

[31] On 14 May 2020, Dr Bairagi completed the ‘Request for Treating Doctor Advice’ in relation to Ms Glover. Extracting the questions and Dr Bairagi’s responses to those questions, it states:

“1. In your opinion, does Maria have a medical condition/illness which is an accepted contraindication for having the Influenza vaccine? YES/NO

Comments

I do not have a proof in my front. What Maria says I have to accept. She said to me on 232/4/2020 that when she was about 7yrs old she was given Flushot and immediately developed anaphylactic reaction & was treated urgently in Hospital. I understand anaphylaxis can happen with egg component in the vaccine. Presently she is vegetarian. Once she ate egg and developed allergic reaction. She does not eat egg anymore. I can’t tick yes or no. but surely she HAD a medical condition (childhood).

2. If YES to question 1, please confirm which of the below clinical scenarios you can confirm applies to your patient:

3. If you have identified other concerns that are not on the above list (noting the current recommendations in the Australian immunisation Handbook for scenarios around egg, latex or other allergies and Guillain Barre syndrome which did not develop after an influenza vaccination [website], please detail these below.

She says once she ate egg and developed allergic reaction and does not eat egg anymore. Rather, she is vegetarian and for that reason she does not eat eggs.

4. If the condition/illness requires further investigation, please comment on the expected timeframe to confirm the required details?

Comments

She is not interested for any kind of Investigations.” (errors in original)

[32] Ms Glover maintains that she will never have a vaccination and is also not agreeable to seeing a medical specialist to discuss the issue.

[33] On 22 May 2020, Mr Warhurst wrote to Ms Glover again, stating:

“I am writing to you in relation to your capacity to undertake your current position as a Care Assistant at Ozcare’s Brisbane South Community Care branch.

Ozcare acknowledges receipt of the medical information provided by you confirming contraindication to the influenza vaccination. As you are aware, having an up-to-date influenza vaccination is a condition of your ongoing employment. Because you have declined a vaccination at this time, Ozcare is unable to permit you continuing to work in your current position. Ozcare is also currently unable to accommodate alternate work or provide you with an appropriate return to work option for the foreseeable future, for the same reason.

Whilst unable to return to the roster, you are entitled to access your personal or other leave accruals if you wish. Accessing your leave accruals still requires following your normal leave request procedure.

Ozcare will review your employment status in three months, or earlier should you advise of any change to your present circumstances.”

[34] Ms Glover was in receipt of paid personal leave and long service leave for the period 1 May 2020 to August 2020. On 25 August 2020, Ms Glover emailed Ms Wells as follows (formalities omitted):

“I am following up on my previous emails I have forwarded to you as I have had no response as yet.

As you are aware my personal leave is ending, and I would like indication on my return to work date or direction on what is required for me to return to work or whom should I be talking to in the Ozcare Human Resource department to finalize this matter.

Please do not hesitate to contact me on my email [email address].” (errors in original)

[35] On 26 August 2020, Ms Glover emailed Ms Bates while Ms Glover was at her local library where she had access to the internet (formalities omitted):

“I was about to leave Beenleigh Library when Joseph Tinkelsen from Ozcare called me on my mobile phone.

Here was our conversation:

Joseph said, due to Covid it is now mandatory for all employee of Ozcare to be vaccinated.

He said I could access all my remaining Annual leave and Long Service leave and other leave balances. Joseph said all my remaining leave should be finished by end of October 2020. He said Ozcare does not take any staffs that is not vaccinated due to risk for clients and staff member.

I mentioned to him the mandatory vaccine is implemented on May 2020. I was employed before then. That should not covered me.

But he said that was Ozcare was implemented due to Covid-19.

I did not want to argue but I said if I could speak to HR as well and if I could talk to him again on the phone. He said sure.

He is now sending me the long service form and annual leave form.

I have not got it yet. I will wait a few mins and heading home.

Call me later tonight when free. Or tomorrow.

I received a message from Centrelink:

My claim has been assessed. sign in to see the outcome.” (errors in original)

[36] After the phone call with Mr Therkelsen on 25 August 2020, Ms Glover attended Centrelink. Ms Glover began to prepare an application for JobSeeker entitlements.

[37] On 27 August 2020, Mr Therkelsen emailed Ms Glover (formalities omitted):

“Thank you for speaking to me yesterday and for your email this morning.

I confirm that Ozcare’s policy in relation to the flu vaccine has not changed.

As stated in previous correspondence to you, 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 of our clients.

It is now an inherent requirement of your role that you must be immunised annual against influenza.

Unfortunately, if you are not immunised against influenza, you will not longer be rostered to work with Ozcare or permitted to enter our premises.

In relation to your remaining accrued leave, our calculations indicate that your annual and long service leave will runout in the fortnight ending 4/10/20.

I attach Ozcare’s Leave Application form as requested.

Please let me know if there is anything else you require.”

[38] Again, Ms Glover complains that Mr Therkelsen did not represent the true situation concerning mandatory influenza vaccinations under the Aged Care Directions.

[39] This application was filed on 10 October 2020.

[40] On 10 November 2020, Mr Warhurst emailed Ms Glover as follows:

“I am writing to you in relation to your ongoing employment with Ozcare. I can confirm for you that your employment has not ended and you have not been dismissed by Ozcare. Ozcare considers that you are presently unable to be rostered because of a medical reason in declining to be vaccinated against influenza.

You have now exhausted all of your paid leave entitlements, however your leave continues, unpaid, whilst you have not received a vaccination against influenza.

Ozcare will review your employment status in January 2021, or earlier should you advise of any change to your present circumstances.”

[41] In my previous decision I found that Ms Glover was dismissed with effect from 4 October 2020.

[42] Ms Glover maintains that she is a person that is subject to a contraindication for the influenza vaccination. Ms Glover emphasises that she is not refusing to have an influenza vaccination because of her personal or political beliefs. It is her position that the Aged Care Directions relied upon by Ozcare did not require that in those circumstances she was prevented from working in aged care.

[43] Ms Glover accepts that she can be required to wear a mask or other PPE to mitigate risks and to work safely. For instance, she states:

“But I was more than willing to follow all safety guidelines at home & at work to continue to work Ozcare.

Example:

Washing my hands regularly with soap and water and/or use alcoholic-based hand sanitiser,

Good hygiene,

Wearing surgical mask in accordance with Dr Jeanette Young’s Workforce Management on Personal Protective Equipment

Not attending work if sick.

Get tested if I had any Covid-19 symptoms,

Not socialising at home,

Wherever possible keep 1.5 metres away from people I don’t live with,

Going out only for food, exercise & within Covis-19 safe outings.” (errors in original)

[44] Ms Glover considers that it may have been unlawful and unreasonable for Ozcare to dismiss an employee, or not permit them to enter Ozcare premises, because they have not had a vaccination, in circumstances where they are medically unable to do so.

[45] In this respect, Ms Glover refers to public statements made by Senator Colbeck, Minister for Senior Australians and Aged Care Services, Minister for Sport. In statements made on 3 April 2020, and after receiving advice from Australia’s Chief Medical Officer, Professor Brendan Murphy, Senator Colbeck is reported as saying:

“The only absolute contraindication to flu vaccination is a history of previous anaphylaxis following vaccination, those who have had Guillain-Barre Syndrome following previous flu vaccination and people on check point inhibitor drugs for cancer treatment.”

[46] Ms Glover does not agree that she ever hung up on Mr Therkelsen. Her evidence is that she does not answer the phone while caring for clients or driving a vehicle. She stated that she would return any Ozcare missed calls when able.

[47] Ms Glover believes that nurses do not have to have an influenza vaccination if they are subject to a contraindication. Despite not being able to be vaccinated, she states that nurses can continue to work using PPE and other safety precautions. Ms Glover considers it is “unfair, unjust and unreasonable” for Ozcare to expect that she have a vaccination and “potentially” risk her life.

Evidence at hearing

[48] As to Ms Glover’s use of the terms ‘allergic reaction’, ‘allergy’ and ‘anaphylaxis’, her evidence at hearing during cross-examination was as follows:

Mr Howard: When you were seven in the Philippines you understand you had an allergic reaction to the flu vaccination?

Ms Glover: I have anaphylaxis reaction with the influenza vaccination.

Mr Howard: You actually sorry?

Ms Glover: I have anaphylaxis with influenza vaccination.

Mr Howard: All right.  And - - -?

Ms Glover: Or you call it flu in the Philippines we call it flu shot.

Mr Howard: Flu shot.  I'll call it flu shot, that's easier?

Ms Glover: Yes.

Mr Howard: Yes.  Now, when you were seven when taking the flu shot you had an allergic reaction?

Ms Glover: Yes, I have.

Mr Howard: Yes.  And you now understand in 2021 that that was anaphylaxis?

Ms Glover: In our country we call this allergies. 3

[49] Ms Glover’s evidence includes that she has an egg allergy. I put to her at hearing that this information was not provided to the employer, and her evidence was as follows:

Commissioner: Why didn't you inform them that you consider that you have an egg allergy?

Ms Glover: Sorry, Commissioner?

Commissioner: So on page 201 there you've told them about your sensitivity to mosquito bites, hair chemical and penicillin.  Why didn't you inform them that you consider that you have an egg allergy, as well?

Ms Glover: I - sometimes because of - life is so hectic I just - whatever I could remember, I just put - I just mentioned those things as it comes along.

Commissioner: Right.  Okay, but your egg allergy is - - -?

Ms Glover: Is I have an - just an allergic reaction and I stop it afterwards.

Commissioner: Yes, but I think you've made the point earlier that it wasn't an anaphylactic reaction?

Ms Glover: It's not an anaphylactic reaction too.  I only have an anaphylactic reaction that prevents vaccination. 4

[50] I also questioned Ms Glover regarding her reason for bringing the application, and confirmation of her submissions around Ozcare following relevant health directives. The following was discussed:

Commissioner: ……Nobody is suggesting that it was a directive.  Well, there was some correspondence with you that I think sought to rely on that but I'm cognisant of that.  I'm aware that there's no mandatory requirement for flu vaccinations in residential aged care.  But Ozcare, their evidence before the Commission is that they've done something different which they would say is over and above.  So what do you want to say about that?  They're saying that they have the ability and the right to implement that policy and make it mandatory regardless of a person's medical condition, and they ask the Commission to find it's lawful and reasonable?

Ms Glover: Isn't it that they have to follow Department of Health when they actually make changes into their policy?

Commissioner: Well, look at this scenario.  If the Health Department said you don't need to wear masks, and your employer said, no, we want you to wear masks, you'd have to comply to wear masks, wouldn't you, even though the Health Department doesn't make it mandatory?

Ms Glover: Commissioner Hunt, I guess that for everyone else, security - safety is paramount for employee and for the company and clients.  I guess that practicality, we should actually be using personal protective equipment - - -

Commissioner: I'm just providing a like scenario there where if there's no directive that says that you need to wear masks in certain scenarios but your employer says, we require you to wear masks, then that's a similar scenario, isn't it?  Or if the Health Department says you need to wash your hands every hour, and Ozcare says you need to wash your hands every half hour, they're just doing something that's over and above the health directive, aren't they?

Ms Glover: I guess that - for me, health is - safety is paramount and then we know that actually that personal protective equipment was actually being issued by Commissioner, Health Department, Dr Jeannette Young, wearing personal protective equipment during the flu season when you are working for vulnerable clients.

Commissioner: I just want to make sure, Ms Glover, you're not here because - - -?

Ms Glover: Yes.  I understand.

Commissioner: The - well - - -?

Ms Glover: I understand.

Commissioner: Let me finish - you're not here because Ozcare did something that is different from the health directive and you think that they must only comply with the health directive.  Is that why you're here?  I mean, I thought earlier, part of the reason was that you say you can't comply with their request and therefore it's not lawful and reasonable.  But are you here because they've done something different to the health directive?

Ms Glover: I am here because they've done something different, that's correct.  That's right.  I lodge an unfair dismissal before Fair Work Commission because I feel that what I experience is harsh, being dismissed from work, it's unreasonable and unjust and that is how I felt when I actually submitted an application for Fair Works Commission. 5

Remedy

[51] Ms Glover is pursuing financial compensation in respect of her dismissal. Ms Glover accepts that reinstatement is not possible. Ms Glover is 64 years old, has worked for Ozcare for over 10 years and her dismissal has had a “devastating” affect on her life including personal and financial hardships. Ms Glover is shocked and devastated that she has been dismissed. In this respect, Ms Glover submits that her dismissal was harsh.

[52] Ms Glover says that it is hard for her to pay her bills following her dismissal. She walks to the shops to buy her groceries and only buys a few items at a time. Ms Glover uses coins to purchase food. She minimises what she eats and has lost weight. Ms Glover states:

“I feel isolated as a result of being dismissed, due to not having the money to contribute to buy food to my friend group and not having money for fuel to use the car to visit these friends or other trips, when I am very limited with money. I haven’t got the money to see friends. I did see friends before I was dismissed from Ozcare. This is my happy place. I used to do this before I was dismissed by Ozcare. Not anymore since I have been dismissed.by Ozcare. Now I have to prioritise what is important to me and that is paying bills first, as a result of being dismissed from Ozcare and having very limited income on Jobseeker, and only to get worse at the end of March 2021 when COVID-19 supplement ceases. The strain will be great.”

[53] Ms Glover considers she was a diligent employee and would have continued in her employment until retirement in 2023. Ms Glover was praised for her performance during her employment and was a dedicated employee, which she says is evidenced by her significant accruals of personal leave; Ms Glover did not often call in sick to work.

[54] Ms Glover also submits that her dismissal was unjust and unlawful in that Ozcare dismissed her because she was unable to receive the influenza vaccination. This is so because for the past 10 years Ms Glover has declined the influenza vaccination and this has been accepted by Ozcare. Ms Glover submits that in these circumstances the aged care directions did not prevent her from entering Ozcare premises or continuing in her employment.

[55] Ms Glover has been applying for further work since the end of her employment with Ozcare. Ms Glover has not been successful in obtaining further employment. Ms Glover describes that finding a position at the age of 64 is like looking for a needle in the middle of a haystack.

[56] Ms Glover has provided her job search reporting data from the Australian Government. For the period 9 October 2020 to 8 November 2020, the data shows that Ms Glover did not apply for any positions, although Ms Glover notes that the requirement to apply for work is not relevant to the entitlements she was receiving.

[57] For the period 9 November 2020 to 8 December 2020, Ms Glover applied for eight jobs. She has provided information concerning those applications. Ms Glover has also provided a number of job applications in early to mid-December and following.

Ms Glover’s closing submissions

[58] Ms Glover filed lengthy closing submissions, which in part reiterated or confirmed her submissions in the first instance. Ms Glover’s closing submissions are relevantly summarised as follows.

[59] Ms Glover maintains that she has been unlawfully and unfairly dismissed, noting that Ozcare ‘mandated’ the vaccination stating it was their legal responsibility; however she submits mandatory vaccination was not a legal requirement for Ozcare.

[60] Ms Glover maintains that she had declined the influenza vaccination for over a decade, following Ozcare’s procedures; and while Ozcare claims “the health and wellbeing of our clients and our staff and volunteers, remains our number one priority”, Ms Glover submits that Ozcare did not prioritise her health and wellbeing. Ms Glover submits that Ozcare applied undue pressure for her to be vaccinated, which could have been life threatening to her.

[61] Ms Glover submits that while Ozcare had indicated that it continued to take advice from health authorities, this was contradicted by Ozcare’s representative at hearing who stated that Ozcare went “above and beyond the health authorities”. Ms Glover states that the Australian health authorities did not mandate influenza vaccination for in-home care workers in the community care sector, and she submits that health authorities made allowances where contraindication provided a reason for exemption.

[62] Ms Glover submits that Ozcare did not go “above and beyond” to protect her, in providing direction for her to have the influenza vaccination which she states could potentially kill her. In this regard, Ms Glover’s position is that Ozcare did not take the advice from the relevant health authorities. Ms Glover submits that if Ozcare had followed health directives, and had actually placed the health and wellbeing of staff as their number one priority, she would still be employed with the company.

[63] Ms Glover maintains that she chose not to risk her life by getting vaccinated, and that in dismissing her, Ozcare acted unreasonably, unfairly and unlawfully.

[64] Ms Glover notes that Ozcare’s representative questioned her at hearing regarding Ozcare’s vaccination declination form which provides:

“I understand that my non-participation will require Ozcare to manage me as a non-vaccinated employee/volunteer and that this may have implications including the termination of my employment or volunteer status.”

[65] Ms Glover maintains that the form was unfair, unjust and unreasonable as anaphylaxis as a result of the vaccination could be life threatening, and goes against medical advice and the Australian Immunisation Handbook. Ms Glover maintains that the direction ‘to get vaccinated as directed’ was unreasonable, unfair, unlawful and goes against medical advice.

[66] Ms Glover submits that Ozcare’s representative provided at hearing that the second reason for her dismissal was that she would not see a specialist to confirm her allergy. Ms Glover submits that Ozcare sought to rely on expert evidence, and in this regard she notes that Dr Lingwood provided at hearing:

“I suspect that because an anaphylactic reaction is such a severe and potentially life-threatening event to occur that a lot of people who do have an anaphylactic reaction to something would subsequently not necessarily go down and have that sort of testing subsequently in the future just because it can be quite a serious event”. 6

[67] Ms Glover relies on this evidence and states this is how she responded to allergy testing. She submits that the risk and benefit should be weighed before any procedure; and she believes it unfair, unjust, unreasonable and unlawful for Ozcare to dismiss her, noting Dr Lingwood’s advice.

[68] Ms Glover acknowledges that at hearing, I raised the scenario that if her employer were to mandate mask wearing even where the Health Department did not make it mandatory, she would have to comply. Ms Glover’s closing submission in reply is that legal valid consent is required for influenza vaccination, and not for mask wearing. Ms Glover maintains that she was and is unable to provide consent to vaccination, due to contraindications.

[69] Ms Glover notes that she was treated as an employee with a medical contraindication, and allowed to access her accrued personal leave. She submits despite Ozcare treating her as an employee with a medical contraindication, it required her to sign a valid consent form to be vaccinated. She submits that dismissing her for not signing the consent form is unjust, unreasonable and unlawful.

[70] Ms Glover made some submissions regarding the AstraZenica vaccine and the Government’s response to potential risks, including the information factsheet which she states provides “as with all vaccines, the potential risks should be considered”. I note in this regard, the current matter relates only to a requirement to be vaccinated against influenza and does not deal with coronavirus vaccinations or their potential risks.

[71] Ms Glover also provided closing submissions in confirmation of the personal and economic effects of her dismissal, stating that she has suffered shock, affected mental state, loss of superannuation contributions, and difficulty paying her bills. Ms Gover submits she may have to sell her car in light of her situation.

[72] Ms Glover submits that she lost her job at 64, and had intended to stay employed with Ozcare until her intended retirement in 2023; however her “dreams were shattered”.

[73] Ms Glover submits she is still alive by declining the influenza vaccination, and that Ozcare acted unfairly and unlawfully in dismissing her, in light of her contraindications against influenza vaccination.

Ozcare’s evidence

[74] Ozcare has relied upon the evidence of Mr Warhurst, Mr Therkelsen, Mr Reading, Mr Foley and Dr Lingwood. Each witness was presented for cross-examination at hearing.

[75] In dealing with the evidence of each of Ozcare’s witnesses I will not repeat matters already addressed in Ms Glover’s evidence above, unless necessary to identify Ozcare’s perspective of various events or matters in dispute.

Evidence of Mr Warhurst

[76] As of 4 October 2020, being the date that Ms Glover’s employment ended, Ozcare employed over 3,000 employees, worked with 200 volunteers and hosted over 700 student placements annually. Of the 3,000 persons directly employed by Ozcare, 1,771 are engaged in residential aged care, 1,439 in community or home care, 58 work in respite centres, and 80 employees work in corporate support.

[77] Prior to the onset of the coronavirus pandemic, Ozcare required all staff with direct client contact and potential exposure to blood or bodily substances to be vaccinated against Hepatitis B. Ozcare also offered and recommended influenza vaccinations for all employees, including paying for these vaccinations. Ozcare also recommended that those in client-facing roles be vaccinated against measles, mumps, rubella, varicella and pertussis.

[78] In 2016 Ozcare introduced the immunisation declination form. The purpose of the form was to emphasise the importance of vaccination and encourage as many employees as possible to vaccinate. Ozcare has also kept a record of the reasons why employees declined the vaccination. Ms Glover declined the vaccination and submitted the form in 2016, 2018, 2019 and 2020. In 2016 the reasons Ms Glover gave was a “previous reaction to vaccination”, and in 2018, 2019 and 2020 Ms Glover cited allergies.

[79] The outbreak of coronavirus in early 2020 caused Ozcare to review the measures it had in place. Mr Warhurst began to have regular discussions with Dr Lingwood concerning coronavirus and the effect it might have on Ozcare as an organisation. In the early stages little was known about coronavirus. It was known that coronavirus was a serious respiratory disease, there was no vaccine, it could be fatal, it spread quickly and those with compromised immune systems and the elderly were at risk. Mr Warhurst relayed this information to Mr Godfrey and other members of the Ozcare executive.

[80] On 9 March 2020, Mr Godfrey emailed all Ozcare staff as follows:

“I am writing to update you on the Coronavirus (COVID-19).

As you would be aware, the rate of infections around the world for COVID-19 is increasing. While Australia has a low incidence of cases compared to some nations, we are not immune.

As always, the health and wellbeing of our clients and our staff and volunteers, remains our number one priority.

It is important that all staff and volunteers adhere to our infection control processes, these include:

[various Ozcare policies are listed]

Please be assured that we are diligently monitoring this space, and working closely with our suppliers to ensure that continuous supply of product, including masks, sanitiser and gloves, to your services.

We continue to take advice from health authorities, and we are working together with aged care industry peak bodies at this time. We will share more information with you as soon as it becomes available. If you have any concerns, please speak directly with your supervisor.

Thank you for your understanding and attention to this important matter.”

[81] On 18 March 2020, the Prime Minister issued a media statement that contained the following information in relation to aged care:

“Aged Care and Older Australians

As the transmission of COVID-19 increases rapidly, it is our priority to protect and support elderly and vulnerable Australians. Aged care is a critical sector that faces staffing challenges as existing staff are either subject to self-isolation requirements due to COVID-19 or are unable to attend work.

The national Cabinet has agreed to the recommendations of the AHPPC to enhanced arrangements to protect older Australians in Residential Aged Care Facilities and in the community.

Restrictions on entry into aged care facilities

The following visitors and staff (including visiting workers) should not be permitted to enter the facility:

•  Those who have returned from overseas in the last 14 days;

•  Those who have been in contact with a confirmed case of COVID-19 in the last 14 days;

•  Those with fever or symptoms of acute respiratory infections (e.g. couch, sort throat, runny nose, shortness of breath); and

•  Those who have not been vaccinated against influenza (after 1 May)

…

Managing illness in visitors and staff

Aged care facilities should advise all regular visitors and staff to be vigilant for illness and use hygiene measures including social distancing, and to monitor for symptoms of COVID-19, specifically fever and acute respiratory illness. They should be instructed to stay away when unwell, for their own and residents’ protection.

Given the high vulnerability of this particular group, aged care facilities should request that staff and visitors provide details on their current health status, particularly presentation of symptoms consistent with COVID-19. Screen for fever could also be considered upon entry.

These additional measures should be implemented in order to better protect residents and prompt individuals entering the aged care facility to consider their current state of health prior to entry. Both individuals and management need to take responsibility for the health of visitors and staff at facilities to protect our most vulnerable community members.

These are the recommendation of the AHPPC, individual facilities may choose to implement additional measures as they see fit for their circumstances.” (underlining added)

[82] On 21 March 2020, Queensland’s Chief Health Officer issued a direction mandating influenza vaccination for visitors of aged care facilities.

[83] On 26 March 2020, Mr Warhurst met with Mr Godfrey and Mr Foley. The group discussed whether Ozcare should mandate influenza vaccinations for all employees who had direct client contact and not just those working in residential facilities as contained within Dr Young’s direction. The discussion included consideration to extend the vaccination required to home care workers because:

“(a) those working in home care are dealing with the same type of clients who are in residential aged care facilities (being elderly, vulnerable people);

(b) home care workers are performing similar work to those in aged care facilities (being close to another when care giving is inherent in the work);

(c) home care workers are often exposed to more clients – employees can see numerous clients on any one day. As such, the risk of transmitting infectious disease increases outside of a residential aged care facility. Home care workers could potentially become super-spreaders; and

(d) we have no control over those who attend our client’s homes, and in turn any infectious disease to which our home care workers are exposed.”

[84] Mr Warhurst, Mr Godfrey and Mr Foley met again on 31 March 2020. At this second meeting, Mr Godfrey expressed his view that Ozcare has both the responsibility and ability to implement change to protect the lives of Ozcare’s clients. Mr Godfrey was not willing to accept the risk of even one death occurring when the organisation could have made changes to limit the risk to clients from both influenza and coronavirus “at the same time”. As a result, it was considered necessary and appropriate to introduce mandatory influenza vaccinations for all employees in client-facing roles.

[85] On 2 April 2020, Mr Warhurst met with the rest of Ozcare’s senior executive team to discuss and finalise the amendments to the immunisation policy. At this meeting it was agreed that Ozcare volunteers, student placements, and facility contractors would also be required to have influenza vaccinations. It was further agreed that any staff members, volunteer, or student, in a client-facing role who declined the vaccination – on any grounds – would not be rostered to work after 1 May 2020.

[86] The policy, as amended, provides:

“Employee Immunisation

Organisational Policy

All services of Ozcare are to promote an effective Infection Prevention and Control Program which prevents and controls infections through a systematic approach. An effective Infection Prevention and Control Program is necessary for the health and safety of clients, employees and visitors.

Infection Prevention and Control practices are included in day to day processes such as:

•  Clinical care

•  Sanitising and maintenance of equipment

•  Kitchen, cleaning and laundry practices

•  Disposal of waste (clinical, food, general etc)

•  Surveillance processes.

Applies To

All operations of Ozcare

Rules

Immunisation of employees against vaccine-preventable diseases is an essential component of the Ozcare Infection Prevention and Control Program. Ozcare will provide adequate resources and information regarding vaccines and other infection control measures required for each role to prevent transmission of diseases.

Immunisation requirement for specific employees, contractors and volunteers is determined by their risk and is guided by the recommendations in the Australian Immunisation Handbook 10^th Edition and the Australian Guidelines for the Prevention and Control of Infection in Healthcare 2010, (or alternatively by any legislation or regulation specifically requiring immunisation).

Influenza

The influenza vaccination is mandatory for all employees whom (sic) have contact with clients of Ozcare. This includes all employees working in residential aged care facilities, day respite centres and community care programs.

Ozcare provides the influenza vaccination directly to all the employees every year. All employees and volunteers are to receive this vaccination annually; however they can choose to decline this vaccine for medical reasons by signing a formal declination statement and attaching supporting medical evidence – IPF 001 – Employee Influenza Vaccine Declination Form [intranet address].

Ozcare also accepts evidence of employee vaccination received by external providers such as local GPs and pharmacies. Alternatively, employees can access the Australian Immunisation Register which holds a record of their vaccination history.

Hepatitis B

Similarly, Ozcare provides the Hep B vaccination to employees who are yet to be vaccinated and requires anyone with direct contact with, or potential exposure to blood or body substances to receive this vaccine or otherwise sign a formal declination statement, IPF 002 – Hep B Vaccine Declination Form, should they have justifiable reason.

Cost

Both influenza and Hepatitis B immunisation will be funded by the organisation, at no cost to the employee.

Personal costs can be claimed if Ozcare services are unable to administer the immunisation and only if prior approval is received from the employee’s Supervisor. Reimbursements will be made at the Facility or Branch level upon presentation of receipt.

Responsibility for the costs of recommended immunisation rests with the employees.

Vaccination

It is a professional and ethical responsibility of all employees to protect clients in their care from preventable diseases. Employees will be provided with information about vaccine-preventable diseases and the immunisation process at the start of the annual influenza vaccination program.

An informed consent process will occur after the employee has made an informed decision.

All employees are encouraged to discuss their individual circumstances and levels of risk with their regular treating doctor to determine their safety requirements. Employees can opt out for medical reasons, only after signing a formal declaration form and attaching supporting medical evidence.

Employees in risk category A who already have protection against Hepatitis B must provide proof of vaccination or proof that they are not susceptible to Hepatitis B infection. This includes:

•  Vaccine record book with details of vaccine given and clinic attended or a printed copy of your vaccinations record from the Australian Immunisations Register

•  Letter from a medical officer, Infection control practitioner or vaccine service provider with details of vaccine given or a statement that the individual is not susceptible to Hepatitis B

•  A pathology testing result showing a positive anti-HBs (≥10 IU/L).

A statutory declaration is not an accepted evidence.

An employee who refuses to be vaccinated where their work has a foreseeable risk of infection transmission will be managed as a non-vaccinated employee. This may include transfer to another role involving different duties or taking other actions appropriate to the level of risk the individual may pose to care recipients or others in the workplace; up to an (sic) including the termination of employment.

New Employees

The Employee Immunisation procedure will be explained to all prospective employees during the interview process and again at the time of induction. Any immunisation records provided by employees will be kept on the personnel file at the facility/branch and recorded in Mirus Skills.

It is expected that all new employees will have current immunisation for the diseases listed in this procedure, mandatory vaccinations are a condition of employment and must be completed prior to any offer of employment being made. Once the current immunisation status is obtained it is the employees (sic) responsibility to maintain the current status for all conditions referenced in the policy…”

[87] Mr Godfrey communicated these changes to all staff via email on 3 April 2020. The 8 April 2020 letter extracted above was also sent to staff. The 3 April 2020 email was in similar terms to the 8 April 2020 letter. Ozcare also communicated the change to all Registered Training Organisations that had student placements with Ozcare.

[88] Between 6 and 13 April 2020, Mr Warhurst and Mr Foley held teleconferences with operational managers to explain the updated policy to ensure consistent implementation throughout the organisation. On 14 April 2020, Mr Warhurst sent an internal memorandum to all Facility Managers, Branch Managers, and Day Respite Coordinators, providing instruction in relation to vaccinations and the non-rostering of employees that were not vaccinated. That memorandum stated, in part:

“It is an inherent requirement under Ozcare’s Employee Immunisation policy all employees, volunteers and students in aged care facilities and community care programs must receive an up to date influenza vaccination (i.e. 2020). Employees, volunteers & students are to comply with this by 1st May 2020 and you are instructed to take action now to ensure this occurs.

If you have employees that are not vaccinated?

By the 23^rd April (7 days before 1^st May) any employee who has not provided evidence of influenza vaccination must not to (sic) be rostered to work, and must cease entering the facility / service, from 1^st May.

If they subsequently provide evidence of influenza vaccination, they can again be rostered for work and present to the facility / service.

If the reason for non-vaccination is due to medical grounds?

Employees may access their personal (sick) leave, or other leave accrual, to cover their period of absence from 1^st May.

We will review this on a case by case basis, in discussion with affected employee (sic).”

[89] Ozcare does not intend to change the immunisation policy in the future. It is Ozcare’s view that vaccination against influenza is an important measure to protect employees and clients.

[90] Ms Glover sent her “objection” to the vaccination requirement on 14 April 2020. Mr Godfrey provided all “objections” that he received to Mr Warhurst. Where an employee declined to have a vaccination on medical grounds they were dealt with by Mr Rohan McKay, Workplace Health and Safety Manager, and Mr Therkelsen. Dr Lingwood was also involved in the process, if required.

[91] The various correspondence between Ozcare and Ms Glover is recounted above. Mr Warhurst has provided the medical certificate Ms Glover provided to Ozcare with her 24 April 2020 letter. That medical certificate is also by Dr Bairagi and is dated 22 April 2020.

[92] It is this medical certificate produced at [29] that Mr Warhurst referred to as not being ‘entirely clear’.

[93] On the second medical certificate, dated 5 May 2020, the version given to Ozcare has a handwritten notation at the top “This form is for accrued sick leave for 500hrs. The remaining balanced (sic) of hours will be forwarded on 1^st October 2020. MG”.

[94] Ms Glover’s last working day was 30 April 2020. Mr Warhurst states that Ms Glover did return her swipe card and mobile phone at the conclusion of this shift, but not as a result of a direction to do so. As at 30 April 2020, Ozcare remained hopeful that Ms Glover would have the influenza vaccination and return to her roster.

[95] On 20 May 2020, Mr Warhurst met with Mr Therkelsen and Mr McKay regarding Ms Glover. At this time, Mr Therkelsen had received further information from Ms Glover’s general practitioner and therefore he consulted with Dr Lingwood. Mr Warhurst states that it was agreed that it was unclear whether Ms Glover could safely have the influenza vaccine. It was decided to treat Ms Glover in the same way as other employees who had demonstrated a medical contraindication; Ms Glover was to remain on leave. Employees who did not demonstrate a medical contraindication to the vaccine and who refused the vaccine had their employment terminated.

[96] Of Ozcare’s 3,000 employees, 42 initially declined the influenza vaccination. Fifteen of those employees eventually did receive the vaccination. Some of those 15 employees had raised egg allergies and adverse reactions in their initial refusal. Seven employees resigned. Eight employees were dismissed, including some employees that relied upon medical grounds to refuse, but these reasons were “not supported by sufficient evidence”. Two employees were casuals and are not rostered to work. Four employees raised medical objections that were accepted by Ozcare. All of them, except for Ms Glover (by virtue of my earlier decision), remain employed by Ozcare but are not rostered to work in client-facing roles.

[97] Ozcare has not permitted any employee to work in a client-facing role without an influenza vaccination. One nurse did work from home for two weeks while her medical condition was investigated. This work from home was not practicable and this nurse remains on leave.

[98] At the hearing, Ms Glover cross-examined Mr Warhurst as follows:

Ms Glover: …Alternative duty has never been considered by Ozcare.  Can you please tell me why?

Mr Warhurst: For you, Ms Glover?  There isn't a role that isn't client-facing that you could suitably do within Ozcare.

Ms Glover: Okay, can I ask you another question, please?

Mr Warhurst: Please do.

Ms Glover: On your second witness statement, page 164E, it says "E" on the top - - -?

Mr Warhurst: Yes.

Ms Glover: It says, "Four employees raised medical objection to the influenza vaccine which were accepted by Ozcare.  All remain employed currently on paid and unpaid leave except Ms Glover."  I just wanted to find out, what happens to them once their paid leave runs out?

Mr Warhurst: So the four employees includes you.  Two of the employees are still on leave and one actually resigned today. 7

Evidence of Mr Therkelsen

[99] Mr Therkelsen commenced employment with Ozcare in September 2018. As an Injury Management Advisor, Mr Therkelsen is primarily responsible for assisting Ozcare employees rehabilitate after injury and recommence their substantive roles. Mr Therkelsen was previously employed by Workcover Queensland, conducted his own consulting in the area of workers’ compensation, and worked as the Workers’ Compensation Manager for Australian operations of one of the world’s largest construction firms.

[100] As discussed above, Mr Therkelsen was involved in dealing with Ms Glover’s objection to the influenza vaccination. On 24 April 2020, Mr Therkelsen tried to phone Ms Glover on three occasions. On each occasion, Mr Therkelsen says that he “was hung up on”. Mr Therkelsen informed Mr Warhurst of this. Mr Warhurst subsequently emailed Ms Glover, the content of which is discussed above.

[101] Mr Therkelsen tried to phone Ms Glover again on 27 April 2020. Again, he was “hung up on”. Mr Therkelsen subsequently emailed Ms Glover.

[102] Mr Therkelsen again tried to phone Ms Glover on 28 April 2020. Mr Therkelsen left a message on Ms Glover’s phone requesting that she return his call. As he had not heard from Ms Glover, Mr Therkelsen emailed Ms Glover at 6:24pm on 28 April 2020 stating:

“Hi Maria,

I tried to contact you several times since last Friday, however my attempts have so far been unsuccessful.

Please contact me at your earliest convenience, either by email or by phone.

I have copied Judy in on this email to keep her in the loop.

As you are aware, it is not an inherent requirement of your role that you must be immunised annual against influence.

There is an appreciable risk that a non-vaccinated person (employee, volunteer or client) may:

•  Contract seasonal influenza, and subsequently contract COVID-19; or

•  Contract seasonal influence and inadvertently transmit it to another, who subsequently contracts COVID-19.

Either combination of the above would almost certainly be fatal.

The circumstances surrounding the nature of transmission of both viruses are insidious, meaning that transmission may occur before symptoms take hold.

One simple and effective step we all can take to address the risk of death through inadvertent transmission, is to be vaccinated against the seasonal flu.

Further to Brett’s email, I confirm that if you are not immunised against influenza, you will become a non-vaccination employee and unfit for your role on medical grounds.

This means that 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 order to advance this matter, I am seeking your permission to allow Ozcare’s Occupational Physician, Dr Andrew Lingwood, to speak to your GP.

I have attached an employee authorisation for you to fill in. Please email me a copy of the signed document.

Alternatively, you can simply respond to this email with your written permission to allow Dr Lingwood to speak to your GP.

We are keen to resolve this issue, so please attend to this no later than COB on Wednesday 29/04/20.

As a courtesy, you should contact your GP to alert him of Dr Lingwood’s call.

I look forward to hearing from you in due course.”

[103] Ms Glover responded to Mr Therkelsen on 30 April 2020, as follows:

“Dear Mr Joe Therkelsen,

In response to email on 24.4.20 by Mr Brett Warhurst, I can’t access medical history regarding my adverse reaction to Influenza Vaccination when I was 7years old from Philippines. But I got medical certificate from my medical practitioner which I forwarded to Ozcare.”

[104] Mr Therkelsen responded, also on 30 April 2020, as follows:

“Good afternoon Maria,

Thank you for your email. I am sorry that I was not able to speak to you today.

I have copied Judy in on this email so she is aware.

Brett has provided me with a copy of your email and the attached medical certificate.

However, Ozcare would like to obtain additional medical information from your treating doctor.

To assist with this, I have attached a letter for your doctor to fill in. Ozcare is happy to pay for the cost of your doctor completing this document.

Simply get your doctor to send me an invoice and I will arrange payment.

Please provide your doctor’s response by COB on Tuesday 05/05/20.

Your doctor can send me a copy of the completed letter by either fax or email.

Feel free to ring me if you have any questions.

Until this matter is finalised, you are able to access your sick leave and other leave entitlements.”

[105] The ‘Request for Treating Doctor Advice’ ultimately completed by Ms Glover’s treating practitioner is discussed above. There was, it seems, a cover letter to be attached to that form. That letter is on Ozcare letterhead and is dated 30 April 2020. This letter states:

“Dear Dr Bairagi

Re: Maria Glover (DOB: [redacted])

Thank you for your ongoing care of Maria Glover. Maria is employed with Ozcare’s Brisbane South Community Care office as a Care Assistant.

Ozcare has a duty of care to protect our elderly and vulnerable clients living in our aged care facilities and in the community. We need to do everything possible to ensure our clients stay safe and well during the COVID-19 pandemic and into the future. Ozcare’s Employee Immunisation policy states that it is mandatory for all employees with direct client contact to receive annual influenza vaccination.

Maria has recently provided advice of their intention to decline influenza vaccination, citing a medical reason. Ozcare requires clarification of the medical basis of Maria’s declination.

To assist us in clarifying the medical contraindication (as set out in the Australian Immunisation Handbook) of Maria having the influenza vaccina, we would appreciate if you could complete the attached Request for Advice, which addresses Ozcare’s query.”

[106] On 5 May 2020, Ms Glover responded with another medical certificate, rather than the form that Ozcare had requested. The medical certificate and its handwritten notation are discussed above.

[107] On 8 May 2020, Mr Therkelsen was able to speak with Ms Glover. Ms Glover told Mr Therkelsen that she wanted to “consider her options” before getting the influenza vaccination. Mr Therkelsen reiterated that Ozcare needed her permission to contact her medical practitioner. Mr Therkelsen made notes of this conversation following the call. Those notes are in evidence before the Commission:

“[phone call] to Maria’s personal mobile. She advised that she was very apprehensive about getting vaccinated and wanted more time to consider her options. I stated that I needed to obtain additional medical information from her GP and needed her permission to do that. She stated that she will contact Judy and me next week.”

[108] On 12 May 2020, Mr Therkelsen emailed Ms Glover again, requesting that she respond by the following day.

[109] On 14 May 2020, Ms Glover’s general practitioner provided responses to the questions posed by Ozcare. This form is dealt with above.

[110] On 15 May 2020, Ozcare sought Dr Lingwood’s opinion concerning the information provided by Ms Glover’s general practitioner. Dr Lingwood’s response is in evidence below.

[111] Ozcare’s decision to treat Ms Glover as having a medical contraindication is dealt with above.

[112] Mr Therkelsen contacted Ms Glover, by telephone, on 26 August 2020. Again, Mr Therkelsen made notes of the telephone call:

“[phone call] to Maria. I asked her how she was going and if her circumstances had altered in any way over the last 3 months. She stated that she had emailed Judy and myself to request information about accessing her accruals and what her current status was. I informed Maria of her leave balances and advised her that I would email her the Leave request form that she could complete.

I also advised that Ozcare’s position in relation to the flu vaccine had not changed. It is now an inherent requirement of her role to be vaccinated, if she wanted to continue to be provided work hours at Ozcare. Maria asked for a written clarification of Ozcare’s position. I advised that I would send her another copy of the letter from Tony Godfrey and restated that Ozcare’s position had not altered. Maria thanked me for the call.”

[113] Mr Therkelsen disputes Ms Glover’s recollection of the phone call that is contained in her email of 26 August 2020. Mr Therkelsen states:

“(a) I did mention that the vaccination was mandatory. This is because I had asked Ms Glover if there had been any changes in her circumstances which might enable her to come back to work. In response, Ms Glover asked me “has Ozcare changed its immunisation policy?” to which I responded “no”. I was explaining why the policy had not changed.

(b) I did not tell Ms Glover her employment would be “finished” once her paid leave ended. Ms Glover had asked me how much more leave she had available. I said based on my calculations, her paid leave will be “finished by the end of October”. Ms Glover then asked me for a leave request form. Ordinally (sic), I am not involved in this because an employee downloads their own leave form from the intranet and submits a leave request to their manager (who in turn either approves or denies the request and provides this to payroll). However, as Ms Glover had specifically requested it, I logged onto the intranet and downloaded a leave form and provided this to Ms Glover. Ms Glover returned the completed form to me and not her manager, so I passed it onto her manager, Ms Wells…

(c) I never said to Ms Glover that Ozcare “does not take any staffs that is not vaccinated (sic)”. I said words to the effect “Ozcare cannot provide hours of work to staff who are not vaccinated”.

(d) I never told Ms Glover that Ozcare “didn’t wish to take her back”. My job is to get people back to work and the purpose of my call was to try and facilitate that. I told Ms Glover words to the effect that Ozcare “cannot offer you any hours on the roster as you are not vaccinated”. I have consistently said this to Ms Glover since April 2020.”

[114] Ms Glover emailed Mr Therkelsen on 27 August 2020, with the subject “Please Confirm in Writing can’t go to work – Maria Glover”. That email stated:

“Dear Joseph,

On our telephone conversation yesterday afternoon dated 26.8.20, can you please confirmed in writing I can’t go to work without vaccination and send it to my email address?” (errors in original)

[115] Mr Therkelsen’s response to Ms Glover is extracted above.

[116] Mr Therkelsen does not recall Ms Glover, prior to her statement in these proceedings, suggesting modifications to her work such as using a mask or other PPE. Regardless, the suggestion is not acceptable to Ozcare because:

“…Ms Glover’s medical advice was that she should not work during the winter months, and, Ozcare require the influenza vaccination for employees to continue work in client facing roles.”

[117] Mr Therkelsen states that unless Ms Glover gets the influenza vaccination, she will not be able to work in her substantive role.

[118] At hearing, Mr Therkelsen was questioned by Ms Glover about Ozcare’s procedure for employees unable to have the vaccine:

Ms Glover: On your statement it says, "One important effective step we all can take is to address the risk of death through inadvertently(sic) transmission is to be vaccinated against seasonal flu."  My question is, not everyone can have influenza vaccine vaccination, right?  What Ozcare procedure do they have for an employee who cannot have the vaccine?

Mr Therkelsen: Okay.  So as outlined in several bits of communication, if an employee cannot be vaccinated for influenza then Ozcare would be unable to roster them for work.  They are still able to access their accrued leave, be it sick leave, annual leave, long service leave, and that situation would be reviewed after a period of time to see if there's been any change or modification to the circumstances for that employee.  But the policy was if an employee was not vaccinated they would not be rostered on for work. 8

[119] I also questioned Mr Therkelsen regarding a directive for aged care facilities:

Commissioner: So, Mr Therkelsen, this is an email that you sent to Ms Glover on 27 August where you said - are you there yet?  No?

Mr Therkelsen: Yes, Commissioner.

Commissioner: Okay, I'll read it for the record.  "Queensland's Chief Health Officer, Dr Jeannette Young, has issued directions pursuant to section 363(b) 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 of our clients."  And you then wrote, "It is now an inherent requirement of your role that you must be immunised annually against influenza."  So why did you write that to Ms Glover when she didn't work in a residential aged care facility?

Mr Therkelsen: Well, she asked for clarification of Ozcare's policy with respect to the requirement to be vaccinated against influenza.  So that text was pretty much taken out of some previous correspondence that was sent to our employees with respect to the requirement for them to be vaccinated.

Commissioner: Yes but it didn't strictly apply.  Do you think that you might be a little bit misleading there to Ms Glover?

Mr Therkelsen: Certainly it was never my intention to mislead Ms Glover, Commissioner.  I was simply trying to reiterate Ozcare's position with respect to the requirement to be vaccinated against influenza for any client-facing employees, be they in the aged care facility or out in the community dealing with providing the services to our vulnerable clients in the community.

Commissioner: Do you accept though that the directive didn't apply to community home care?

Mr Therkelsen: Yes, Commissioner, I accept that.  It applied strictly to the aged care facilities.

Commissioner: And was that within your knowledge when you wrote that email?

Mr Therkelsen: Yes, it was, Commissioner.

Commissioner: So was your email inadvertently worded in a way that suggests that you're following a directive that doesn't really apply to Ms Glover?

Mr Therkelsen: That certainly wasn't my intent.  Certainly Ozcare made the decision to extend the parameters of the directive to the community workers, as well as the aged care workers.  That's what I understood.

Commissioner: Yes but my question to you is, do you think you've inadvertently provided information to Ms Glover as something that you couldn't rely on in her circumstances?

Mr Therkelsen: I'm not sure that there's anything there that we couldn't rely on.  I state that it was a directive pursuant - in specific relation to aged care facilities.

Commissioner: Yes, well, I'm not suggesting that the bottom paragraph there at page 296 is incorrect.  That does appear to be correct.  And then you say, "As per the direction above, it is not only our legal responsibility but also our moral responsibility to ensure we safeguard all of our clients"?

Mr Thekelsen: Well, it certainly did apply in the aged care situation, and by extension Ozcare's decision was to extend it to our community care clients, as well.

Commissioner: So you don't accept that this could be inadvertently misleading by seeking to rely on the direction to strengthen Ozcare's decision which went over and above the direction?

Mr Therkelsen: Look, your Honour, in hindsight I accept that it could be.  But there was certainly no intention on my part to mislead.  I was simply trying to clarify Ozcare's position with respect to its policy.

Commissioner: All right but - yes, okay.  I'm not suggesting there was any malicious intention there, Mr Therkelsen but you understood at the time - - -?

Mr Therkelsen: Yes.

Commissioner: That the directive didn't apply to community aged care?

Mr Therkelsen: Yes, I did, Commissioner. 9

Evidence of Dr Lingwood

[120] As mentioned above, Dr Lingwood is an Occupational and Environmental Physician. Dr Lingwood is a Director of OccPhyz Consulting, a firm of Occupational and Environmental Physicians. Dr Lingwood has a number of tertiary qualifications, including a Master of Science and Technology in Occupational Medicine. He is a Fellow of the Australasian Faculty of Occupational and Environmental Medicine, of the Royal Australasian College of Physicians. Dr Lingwood has experience in the delivery of vaccination programs to groups of employees (including influenza vaccinations).

[121] Dr Lingwood has been engaged by Ozcare since 2011. He describes the services he provides to Ozcare as:

“(a) I provide regular advice regarding workplace injury and illness prevention and management including advice on the management of employees with both work-related and non-work-related injury and illness.

(b) I provide medical risk management advice with respect to a number of company policies.

(c) I am available to Ozcare management as required for other occupational medicine or medical risk management questions that arise from time to time.

(d) I have assisted with the development of an immunisation health management protocol for Ozcare, which was approved by the Chief Executive Officer of Queensland Health. This protocol allows Ozcare to provide immunisation programs and sets out procedures and the various aspects of the immunisation program including adverse reactions.

(e) I have provided advice to Ozcare regarding their implementation of a mandatory influenza vaccination program for staff in light [of] government regulations in the aged care sector, which I discuss later in my statement.”

[122] Dr Lingwood says he was not involved in Ozcare’s policy decision to make influenza vaccinations mandatory. Dr Lingwood was involved subsequently, to review the program or procedure for those that declined influenza vaccinations. Dr Lingwood assisted to draft letters to these individuals’ treating doctors to specify whether there was in fact a medical contraindication to the vaccination. Dr Lingwood has been involved in reviewing some of the responses to those letters and providing an opinion on whether the circumstances constituted a genuine medical contraindication.

[123] Dr Lingwood describes influenza, complications and risk factors as follows:

“Influenza is an infectious disease that is transmitted from person to person. Influenza is caused by a variety of influenza viruses. The infection impacts the respiratory tract (the nose, throat, windpipe and lungs). Most individuals who get influenza (as opposed to the common cold [and] other viral infections) become significantly unwell for a few days up to two weeks, but usually recover without lasting ill health effects. Typically, they will experience a fever, sore throat, other respiratory symptoms, muscle or joint aches and fatigue.

In some individuals however, influenza can progress to pneumonia or other complications which are very serious and may result in hospitalisation or even death. Older individuals or those with other chronic medical conditions are more likely to be affected severely. It is not possible to definitively predict who will be severely affected and who will not. Previously healthy people can also be hospitalised and die from influenza.

Adults greater than 65 years of age and residents of aged care or other long-term facilities are generally considered to be at higher risk for serious complications of influenza. 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 increase likelihood of coexistence of other chronic medical conditions that can also increase the risk of coexistence of other chronic medical conditions which can also increase the risk of complications.”

[124] As extracted above, complications of influenza can include pneumonia. Complications also include acute respiratory distress syndrome and multi-organ failure, myositis (inflammation of the muscles) and rhabdomyolysis (breakdown of muscle tissue), cardiac complications including heart attack and inflammation of the heart or lining of the heart, and central nervous system complication (for e.g. meningitis). The majority of deaths from influenza occur in the over 65 age group (the CDC suggest 70-85% of deaths although a 2019 American study suggests as high as 90% with an Australian 2018 study suggesting 75%).

[125] The risk of hospitalisation and mortality from coronavirus is “significantly increased” in elderly individuals. The CDC estimates that 80% of American deaths from coronavirus have occurred in individuals over 65 years old.

[126] A study published in the British medical Journal in late 2020 suggested that individuals infected with both influenza and coronavirus were more than twice as likely to die compared to an individual infected with coronavirus alone. Most of the cases of coinfection were in older individuals. Dr Lingwood appropriately concedes that research on this topic is ongoing given the recency of the coronavirus pandemic. Some of the data available on the topic has not yet been fully peer-reviewed.

[127] Dr Lingwood explained to the Commission how vaccinations work. In short, a vaccination imitates an infection causing the body to develop an immune response to the infection. This gives the body some mechanism to quickly respond to subsequent exposure to that infective agent. Influenza vaccination does this by using an “inactivated virus”. A vaccination of this type triggers an immune response that is less strong than the immune response created by the actual (in this case) virus, but producing the same overall immune process.

[128] Dr Lingwood has annexed to his statement an extract of the Australian Immunisation Handbook (the Handbook) relating to influenza. The Handbook says that an annual influenza vaccination is recommended for everyone 6 months of age and older. The influenza vaccination is “particularly recommended” for adults 65 years of age and older, healthcare workers, carers and household contacts of people in high-risk groups, residents, staff, volunteers and visitors to aged care and long-term residential facilities and people who provide essential community services.

[129] In relation to recommended groups, the Handbook states:

“Healthcare workers, carers and household contacts of people in high-risk groups are strongly recommended to receive annual influenza vaccine.

Healthcare workers, carers and household contact who should be vaccinated include:

•  All healthcare providers, particularly those caring for people who are immunocompromised

•  Household contacts…of people in high-risk groups, including people who provide home care to people at high risk of influenza…”

[130] The reason for this recommendation is said to be that these people (i.e. healthcare workers, carers and household contacts) can transmit influenza to people who have a higher risk of complications from influenza infection. The recommendation is similar for those working in aged care facilities although the concern in relation to these facilities includes potential complications from an outbreak in these facilities.

[131] The Handbook states that the “only absolute contraindications” to influenza vaccines are:

“•  anaphylaxis after a previous dose of any influenza vaccine

•  Anaphylaxis after any component of an influenza vaccine”

[132] Under the heading “[P]recautions” the Handbook states:

“People with egg allergy

People with egg allergy, including a history of anaphylaxis, can be safely vaccinated with influenza vaccines.

People with known anaphylaxis egg allergy

People with a history of anaphylaxis to egg should:

•  Receive a full age-appropriate vaccine dose; do not split the dose into multiple injections (for example, a test and then the rest of the dose)

If there is significant parental or health professional anxiety, the vaccine may be administered in primary care settings with a longer waiting period of 30 minutes.

Several published reviews, guidelines and reports suggest a very low risk of anaphylaxis associated with influenza vaccination of egg-allergic people.

A 2012 review of published studies included 4172 egg-allergic patients. 513 of these patients reported a history of severe allergic reaction to egg. The review found no cases of anaphylaxis after receiving an inactivated influenza vaccine.

The largest study in the review included 830 egg-allergic patients. 164 of these patients reported a history of severe allergic reaction to egg. Only 17 (2%) of these patients experienced any adverse event. All adverse events were mild, and included abdominal pain, hives, and respiratory symptoms such as wheezing.

People with known non-anaphylaxis egg allergy

People with a history of egg allergy can receive an age-appropriate full dose of vaccine in any immunisation setting. This includes sensitised children (that is, children who are skin-prick or RAST-test positive) who have not yet eaten egg.”

[133] And further:

“People with a history of anaphylaxis after eating eggs or a history of a severe allergic reaction after occupational exposure to egg protein may receive influenza vaccination.”

[134] The Handbook states that the Australian Technical Advisory Group on Immunisation recommends that all people with egg allergies receive an age-appropriate influenza vaccine.

[135] Dr Lingwood states that similar information to that in the Handbook is available through the American Centres for Disease Control and Prevention website.

[136] Under cross-examination at hearing, Dr Lingwood gave the following evidence relevant to egg allergies:

Ms Glover:  In regard with the egg allergies, right - - -?

Dr Lingwood: Yes.

Ms Glover: I understand that many years ago they put the substance of eggs into the vaccine?

Dr Lingwood: It was more so that the vaccination was sort of grown within eggs.  That's how generally the egg component got into vaccinations, but there were egg components in vaccinations, yes.

Ms Glover: And do they - - -

Commissioner: Sorry, is it in the egg shell or in the white of the egg?

Dr Lingwood: No, so it's actually within like the - you know, the white and yolk component of the egg.  That's sort of how a lot of vaccinations have been grown and developed in the past.  The parts or the fragments of the vaccination have been grown within eggs.

Commissioner: So an egg is cracked in a laboratory and then the vaccine is grown into the egg, not the egg is added to - - -?

Dr Lingwood: No.  Certainly the current vaccinations eggs is not added to the vaccine.  It is that the vaccination is partially grown and created within eggs.  Now in terms of the actual mechanics I'm not actually an expert in how - you know, how the egg is cracked in a laboratory or similar but I know that the vaccination is grown in eggs in the you've said rather than having eggs added to the vaccination at the present time.

…………

Ms Glover: Do they still have - now the vaccine has been implemented do they have still an egg components into this vaccination?

Dr Lingwood: So the egg content of vaccinations now, most of the flu vaccinations in Australia do still have an egg content from the way that they are produced.  The amount of residual egg component which is present in the vaccinations now is a lot less than it was in previous decades.  I think one of the things that I mention in my statement is that all vaccinations used in Australia have less than one microgram of residual egg protein in them and some of them have got significantly less than that.  It's estimated that the amount of egg protein required to create an allergic reaction in an individual is somewhere around the 130 microgram mark.  So that essentially is the basis of the current recommendation that individuals who are allergic to egg can be safely vaccinated against influenza without any additional protections or precautions.  In years past there were actually recommendations that people who had a very bad allergic reactions to eggs, there should be more precaution in the way they were vaccinated and some people should perhaps avoid that.  But the latest expert advice on egg allergy specifically is quite clearly that individuals with any degree of egg allergy including anaphylactic reactions to egg can be safely vaccinated without any additional precautions, and that among other places comes from the Australasian Society of Clinical Immunology and Allergy who is the group of doctors who are allergist immunologists in this field.  It's also mirrored in guidance like the Australian Immunisation handbook and other immunisation guidance regarding what is appropriate for people with an egg allergy. 10

[137] The following was discussed in re-examination:

Mr Howard: Just one matter of reply, Commissioner.  You gave evidence about the history of egg content in vaccinations and you mentioned the Australian Society of Clinical Immunology and Allergy guidance?

Dr Lingwood: Yes.

Mr Howard: Now that's this document, isn't it?

Dr Lingwood: Now there are two actual documents from the Australasian Society of Clinical Allergy and Immunology in my - there was one already in my annexures which is specifically about influenza vaccination and that is the reference that sort of specifically says that individuals with any form of egg allergy can be safely vaccinated with the influenza vaccination without the need for any additional precautions.  This new information from that same society added today just actually sort of specified the notion that there is significantly less egg protein or residual egg protein in vaccinations now than there was in decades past and so there are - - -

Mr Howard: Yes, and I was just going to bring you to that.  So when you were giving that evidence you were drawing from that penultimate paragraph, the second-last paragraph on page 1?

Dr Lingwood: Yes.

Mr Howard: Is that right?

Dr Lingwood: Yes, that is correct in terms of the amount of egg protein in vaccinations.

Mr Howard: Yes, I see?

Dr Lingwood: I don't believe this document necessarily goes as far as the other documents in the society about the overall recommendation for flu vaccination.

Mr Howard: Yes?

Dr Lingwood: But the other document from the Australian Society of Clinical Immunology and Allergy does go specifically into that need for there not being any restriction for vaccinating people with egg allergies.

Mr Howard: In 2021?

Dr Lingwood: In 2021, yes. 11

[138] I asked Dr Lingwood to speak to who should not get the vaccination and he provided the following evidence:

Commissioner: Who shouldn't get the vaccination?

Dr Lingwood: You would actually probably find, as well, that a lot of medical sources, the  Australian Immunisation Handbook, for example, will say that the true contra-indications are people who have had an anaphylactic reaction to a previous flu vaccination or an anaphylactic reaction to a component of flu vaccination.  So there's sort of a second addition there, just in that there are some components in flu vaccinations which are used in other vaccinations, as well.  So if a person has had an anaphylactic reaction to a different vaccination and it was determined to be not so much due to the other vaccination but one of the other small components in the vaccination and that's also in the influenza vaccination that would also be a contra-indication, as well.  The issues with Guillain-Barre syndrome following previous influenza vaccination and people wanting checkpoint inhibitors, are not always described as absolute contra-indications but they are certainly significant warnings and the individual would be advised to discuss that further with their treating specialist.  The reason that sometimes people in those situations with Guillain-Barre following a previous flu vaccination and people on checkpoint inhibitors may be advised to have influenza vaccination is that there is actually with Guillain-Barre syndrome, for example, whilst there is a possible link with influenza vaccination there is actually a stronger link with getting a flare of Guillain-Barre syndrome if you catch influenza, rather than having the influenza vaccination.  So in some cases there will be a risk benefit decision made where people who have had a history of Guillain-Barre syndrome or who are on checkpoint inhibitors may be advised by their specialist to actually go ahead with it.  But I would certainly agree that they are certainly, at the very least, flags to make you not immediately vaccinate a person, and seek specialist advice.

Commissioner: So who would somebody speak to if they did have an anaphylactic reaction to a flu vaccination when they were seven and were considering having that now as an adult?

Dr Lingwood: All right, so if someone was considering that, the first port of call would be their general practitioner but it would be referral-ed through to an immunologist or an allergist, essentially would be the person that you would go to.  There are some types of tests which immunologist and allergists can do, I guess to try and work out what is likely to have been the cause or trigger of the reaction previously.  That can be quite difficult to do and I would sort of mention, as I said in my statement that I'm not an immunologist or an allergist, myself, here so I sort of can't give expert opinion on that type of testing.  But I can say with authority that you would refer a person to an immunologist or an allergist if you were going to look into that.

Commissioner: Right, and then if somebody did take the step of having a flu vaccination in that circumstance - - -?

Dr Lingwood: Yes.

Commissioner: Then what would be the likely precautions that would be taken?

Dr Lingwood: So, again from a - I'll sort of say this as from probably an educated lay perspective rather than a true expert perspective, the sort of things that can be done are you can do - some skin tests can be done initially with different agents to see if you can identify what particular component might be triggering the reaction.  What can also be done sometimes is that the vaccination dose can be split up.  A very small amount can be given initially with close monitoring for responses, so for any reactions, and if there's none, further amounts of the dose, building up to the full dose can be done.  Those are some of the broad steps that I'm aware of in that case.  But once again I would have sort of defer to an immunologist or an allergist on the specifics of that.

Commissioner: Is it within your medical training or knowledge that people might outgrow reaction to anaphylactic causes, because it could be anything in a child that gives them - and then they might outgrow that as an adult?

Dr Lingwood: Certainly certain allergies in childhood people do often grown out of at times.  Certain food sensitivities, certain food allergies, people can become less sensitive to, over time.  In fairness, it can work the other way, as well though.  There can be people who can develop an allergy to something a bit later in life that they weren't necessarily allergic to earlier in life, as well.  I suspect that because an anaphylactic reaction is such a severe and potentially life-threatening event to occur that a lot of people who do have an anaphylactic reaction to something would subsequently not necessarily go down and have that sort of testing subsequently in the future just because it can be quite a serious event.  But it is possible that the immune system can change over time.  12

[139] Ms Glover further cross-examined Dr Lingwood regarding his involvement in her case, and he provided the following evidence:

Ms Glover: And I understand that sometimes in May Joseph Therkelsen and Brett Warhurst have meeting with you and you discuss about my situation, and then that conclusion have said that due to my - because of my refusal with these influenza vaccination I am now considered as an employee with contra-indication and what actually, I guess - have you discussed any further about anaphylaxis with Ozcare?

Dr Lingwood: So my involvement in this particular case, I was asked to provide some advice that was actually by email but it was still certainly a meeting with Brett and/or Joe when you initially submitted some medical advice indicating that you'd had a previous anaphylactic reaction.  The first part of my input there was to develop a letter just to send back to your GP to get some further information about that, in which your GP indicated that you had reported that you had had an anaphylactic reaction when you were younger.  Your GP also made some comments about egg allergy, as well.  The advice which I gave back to Ozcare at that point was, as you said, that a person who has had an anaphylactic reaction to an influenza shot in the past does actually have a medical contra-indication in having a further influenza shot.  I did also then provide a bit more advice in general about egg allergy because I guess I was separating those two out, to an extent, in that if there's a previous anaphylactic reaction, then yes, that represents a medical contra-indication, but the additional information about the egg allergy, I sort of identified, as I've explained to the Commission this morning, that the egg allergy would not represent a problem or contra-indication to having a current vaccination.  I don't believe I had any further discussion with Ozcare, anyone in Ozcare about your specific case after giving that advice in response to the letter that your GP provided. 13

[140] Dr Lingwood states his opinion that:

“…when considering the aged care industry and in particular Ozcare, any requirement for mandatory influenza vaccinations of staff should be the same for care workers in aged care facilities and carers working in the community. This is in keeping with recommendations of the Australian Immunisation Handbook, which I discuss later in my statement.”

[141] Dr Lingwood gave the following evidence. Influenza spreads from person to person via droplets and aerosols when infected individuals sneeze, cough or talk. These aerosols or droplets can land directly on uninfected individuals or land on surfaces where they are subsequently picked up by others. Droplets typically travel around 180cm, but some may travel further. The virus can survive for up to an hour in the air (when in an enclosed environment) and potentially more than eight hours on hard surfaces. These facts make influenza easily transmissible in indoor environments such as homes and workplaces – there are no differences in this respect between a home care environment and the residential care environment.

[142] Compared to other workplaces, the risk of influenza transmission is increased in an aged care environment. Carers and other staff are potentially working in close proximity to clients. This close-proximity work can increase the risk of coming into contact with droplets directly from others or on surfaces. This transmission risk exists between clients and workers but also between workers and clients. These factors mean that carers have a greater risk of contracting influenza in the course of employment.

[143] Transmission of influenza is a workplace risk. It is a risk that cannot be eliminated or substituted. A way of completely eliminating influenza would be achieving complete immunity. This is not achievable when one considers people that are unable to be vaccinated and that the influenza vaccination is not 100% effective (like most vaccinations). Dr Lingwood states that because of this, aged care employers need to introduce a mix of alternate control measures to reduce the risks associated with influenza. Personal protective equipment would be the lowest level of control of the risk.

[144] Workplace influenza vaccination programs have become increasingly common. The obvious benefit to workplaces being the reduction in the risk of influenza outbreaking within a workplace. In Dr Lingwood’s opinion, vaccination programs are important because of the “significant risk” of transmission of influenza in work environments. Dr Lingwood accepts that there are “many strategies” that can be adopted to decrease the likelihood of transmission of influenza in the workplace but vaccinations are a key component of any comprehensive program. Dr Lingwood refers to a recent study that showed vaccination decreases the risk of contracting influenza by 59%, although different figures are mentioned in other studies. Some groups may receive a lower level of protection from vaccination, including the elderly.

[145] In Dr Lingwood’s opinion, vaccination of workers is a “very important” control measure available to employers, like Ozcare, to reduce risk so far as is practicable. When consideration is given to the context of work in the aged care sector, and the work of carers, vaccination takes on particular importance. This type of work presents particular and foreseeable risks for transmission of the influenza virus, not least of which is the risk of viral transmission between aged care clients.

[146] Expert bodies in Australia, the WHO and the CDC recommend that individuals be vaccinated against influenza unless they have a medical contraindication. Dr Lingwood has provided the Commission with some of those recommendations. The Handbook particularly recommends vaccination for workers in aged care, including carers in residential facilities and those in home-based care.

[147] The Handbook’s recommendation is also reflected in the recommendation of the Australian Government Department of Health. Dr Lingwood has attached a printout from the Department’s website as at 11 March 2021. That printout is headed “Advice and resources for aged care workers”. Under the heading “When you must not go to work” the Department says:

“As a residential or in-home care workers, you are providing an essential service to some of our most vulnerable Australians.

To keep care recipients safe, do not go to work if you have:

…

•  Not had a 2020 flu vaccination, though exemptions apply in some states and territories” (emphasis in original)

[148] Under a heading “Flu vaccination”, and in relation to home care specifically, the Department says:

“It is not compulsory for in-home aged care workers to receive the flu vaccine to continue working. However, we strongly encourage all staff and volunteers to have the flu vaccine if it is available to them. Being vaccinated against the flu protects staff and care recipients who are more vulnerable to serious complications from the flu.”

[149] The Queensland Government recommendation concerning occupational immunisations is similar. The Queensland Government information says that the National Health and Medical Research Council recommends occupation vaccination for those, relevantly, that are carers. That recommendation is further particularised as a recommendation for the influenza vaccination for providers of home care to people that are at risk of high influenza morbidity.

[150] There is no “widely accepted or peer-reviewed” evidence to suggest that immunisation negatively impacts the immune system. Individuals with a significantly weakened immune system are at a higher risk of developing infection but the overall effect is not damaging to the immune system.

[151] Dr Lingwood states that it is not uncommon for people to suffer adverse reactions after receiving the influenza vaccination. Those adverse reactions may, or may not, be caused by the vaccination. Those adverse reactions can include pain or redness at the injection site or low-grade fever, for example. The most serious known adverse reaction is severe allergic reaction, anaphylaxis. A severe case can lead to death. These serious reactions are “extremely rare”. Dr Lingwood suggests, on the basis of one review paper, 0.3 to 2.1 occurrences per million vaccinations (all vaccinations, not just influenza). The Australasian Society of Clinical Immunology and Allergy estimate the rate to be around 1.35 cases per million vaccinations, looking at influenza vaccination only.

[152] Those administering vaccinations are required to have procedures in place to identify those that may experience adverse effects. The Handbook recommends a number of steps to manage the risk of adverse effects. For example, it is generally recommended that a vaccinated individual should be kept under observation for at least 15 minutes. The thought behind this time being that severe reactions occur in the very short term after a vaccination. Appropriate training to deal with severe reactions is required, including the administration of adrenaline, if required.

[153] The use of vaccinations in Australia is governed by a number of public bodies including the Therapeutic Goods Administration (the TGA). The TGA monitors the safety and effectiveness of vaccines with a national monitoring system that includes monitoring of adverse events.

[154] Dr Lingwood was involved in Ms Glover’s case from about 15 May 2020. Dr Lingwood received an email from Ozcare seeking his opinion following the receipt of Dr Bairagi’s response concerning Ms Glover. As discussed above, it is Dr Lingwood’s opinion, on the basis of the guidance, some of which is described above, that an allergy to eggs did not represent a medical contraindication to influenza vaccination.

[155] Dr Lingwood accepts that a previous anaphylactic reaction to influenza vaccination would represent a medical contraindication but that there were no records to confirm this previous response, nor was there likely to be records available. Dr Lingwood provided this opinion to Ozcare at the time.

[156] Dr Lingwood was not further involved in Ms Glover’s case. Dr Lingwood has reviewed Ms Glover’s evidence in these proceedings and, in summary, states:

•  A sensitivity to mosquito bites, hair chemicals and penicillin are not a medical contraindication to influenza vaccination; and

•  The alternate precautions suggested by Ms Glover would decrease the likelihood of infection but are user-dependent, relying on Ms Glover to be diligent in their application and other issues decreasing their effectiveness.

[157] Dr Lingwood states that a person with a reported history of severe or anaphylactic reactions can consult with a specialist immunologist or allergist to consider further the safety of exposure to vaccination. Dr Lingwood is not an expert in these matters so offers no opinion beyond noting the availability of the advice.

Evidence of Damian Foley

[158] Mr Foley is, and has been since July 2016, Ozcare’s Chief Operating Officer. Mr Foley is responsible for the day-to-day operation of Ozcare’s residential and community care services, as well as retirement villages. Ozcare provides a range of services including aged care, retirement living, disability care, respite care, nursing, allied health and dementia advisory and support services across 40 locations in Queensland. For the last 20 years, Ozcare has also provided immunisation services to Queensland workplaces and schools.

[159] Ozcare provides services to approximately 2,200 clients in residential facilities and 13,000 clients in community care. Of those clients in community care:

“(a) 346 are aged over 95;

(b) 3,000+ are aged over 85;

(c) 5,000+ are aged over 75; and

(d) 5,000+ are aged between 65 to 75.”

[160] Eighty percent of home care clients are vulnerable. This may be because they are immunocompromised or elderly.

[161] Mr Foley describes the work of home care as:

“to assist clients with daily living and allow them to live independently and safely in their own home for as long as possible. The level of care provided depends on a client’s needs. Some clients require care for a few hours each day, and others, a few hours each fortnight. Services provided include personal care (such as assistance showering, going to the toilet, dressing, and applying deodorant), respite care (transporting clients to day respite centres), medication management, meal preparation and domestic duties. Ozcare also offer ongoing high-level support (such as nursing care) for clients who are recovering from surgery or where their usual carer is unwell. Home care is provided by carers, nurses, dementia advisors, allied health professionals and case managers.”

[162] Mr Foley says that the care provided in home care and residential care is largely the same. Both home care and residential aged care are regulated by the Aged Care Quality and Safety Commission. They share the same industry standards, although infection control is more regulated in residential facilities.

[163] Ozcare considers that clients and workers in home care settings are at a great risk of catching and transmitting infections and disease compared to those in residential facilities. Mr Foley says this is because:

“(a) Ozcare has strict control over the management of a residential aged care facility, however it has very little control over what happens in a client’s home.

(b) Ozcare has no way of knowing what third parties have attended a client’s home, however it has records of who has attended a residential aged care facility.

(c) Infection control is heavily regulated in residential aged care, however it is not as heavily regulated in home care.

(d) Ozcare can lock down wings in residential aged care facilities but it cannot do this in clients’ homes.

(e) Staff providing home care on any given day might visit between four to 10 clients in their own homes. They might visit up to 20 unique clients each week.

(f) Respite care involves picking up home care clients on a bus and bringing them to a day respite centre. This provides social interaction for our clients and provides respite to a client’s carer if they have one. There are up to 300 staff, clients and their carers and families passing through our five day respite centres on any given day.

(g) Social distancing in not practicable. This is because personal care is a large part of the service we provide.”

[164] The majority of Ozcare’s home care services is provided in accordance with contracts with the Commonwealth. Ozcare also provides services in relation to transition care (care for patients who have been in hospital) under contracts with the State of Queensland. The Queensland contracts require compliance with various government policies and directions. Mr Foley says that Ozcare’s policy concerning mandatory vaccination is a “furtherance of our contractual obligations” to the State of Queensland. Mr Foley has provided some of these contractual arrangements to the Commission.

[165] On 13 March 2020, Ozcare received correspondence from Professor Brendan Murphy, Commonwealth Chief Health Officer (at that time). Mr Foley understands that the letter was sent to all aged care providers. Professor Murphy’s letter included a reference to discussions had at a then recently held Aged Care COVID-19 Preparedness Forum. One of the topics discussed at that form was the need for providers to “finalise arrangements for seasonal flu vaccinations for residents, staff and volunteers”.

[166] Mr Foley also recounts the history of directions, first by the Prime Minister on 18 March 2020, and then the Queensland Chief Health Officer on 21 March 2020. These two matters have been dealt with in the evidence of Mr Warhurst above and I will deal with health directions further below. Mr Foley also recounts the meetings to discuss Ozcare’s decision to mandate vaccinations in similar terms to Mr Warhurst, that I have dealt with above.

[167] From late March 2020, around 2,000 home care clients stopped carers coming into their homes. Mr Foley says this was because they feared for their safety. This meant some clients went without care to meet their basic needs. Mr Foley understands that other providers experienced this drop in demand for services.

[168] From April 2020, Mr Foley attended weekly teleconferences with the Minister for Aged Care and Senior Australians, the Honourable Senator Richard Colbeck. Those meetings could be attended by up to 150 people from different providers in aged care. Mr Foley recalls that during those meetings Ozcare (and other providers) expressed frustration and concern that influenza vaccinations were not mandated in community care. These concerns were expressed for months.

[169] In 2021, Ozcare continues to manage the risk of COVID and influenza. On the recommendation of Queensland Health, Ozcare requires all home care staff to wear masks as well as other measures, not presently relevant.

Evidence of Mr Joel Reading

[170] Mr Reading has worked for Ozcare for 18 years. Since 2010, Mr Reading has been the Group Manager, Risk & Compliance. Mr Reading is responsible for Ozcare’s compliance with regulation, including the relevant workplace health and safety framework.

[171] Queensland law requires Ozcare to ensure the health and safety of workers and others at the workplace so far as is reasonably practicable. This duty involves the identification of hazards and associated risks and to eliminate or minimise those hazards by implementing control measures. Failure to manage risks may expose Ozcare to litigation and regulatory risk.

[172] Biological hazards are a significant workplace hazard in Ozcare workplaces. Ozcare is generally a high-risk workplace when considering the risk of infectious disease.

[173] Ozcare is also subject to Commonwealth regulation in the delivery of aged care services, primarily the AC Act. Ozcare is subject to compliance assessments at least 40 or 50 times per year. Since coronavirus, there have been additional audits focussed on infection control.

[174] Among other things, the AC Act establishes the quality of care and rights of people receiving care. A part of those rights includes the User Rights Principles 2014 (Cth), which includes the Charter of Aged Care Rights.

Ozcare’s Submissions

[175] Ozcare is a not-for-profit organisation. Ms Glover was engaged in Ozcare’s home care services. Ozcare provides home care to approximately 13,000 clients across Queensland. Eighty percent of those clients are considered vulnerable, all are aged over 65 years of age and about 8,000 are aged 75 years and above.

[176] Ozcare submits that a valid reason to dismiss Ms Glover existed in relation to her capacity. Ozcare required its workforce to vaccinate against influenza. It did so in an attempt to reduce the risk of transmission of influenza to its vulnerable clients. It submitted that the requirement to vaccinate was lawful and reasonable.

[177] Ms Glover was notified of Ozcare’s decision to mandate vaccinations on 20 April 2020 and that her decision to decline a vaccination “would” affect her employment. Ms Glover acknowledged, on 24 April 2020, that her employment might be terminated as a result of not being vaccinated.

[178] Ms Glover’s dismissal was preceded by a six-month period of what Ozcare calls “consultation”. It recalls the timeline of that “consultation” as follows:

“(a) On 3 April 2020, Ms Glover was notified of the requirement to be vaccinated against influenza by 1 May 2020.

(b) On 8 April 2020, Ms Glover was notified again of the requirement to be vaccinated against influenza by 1 May 2020.

(c) On 14 April 2020, Ms Glover advised Ozcare that she was “not able” to have the vaccination because she had an “adverse reaction” to the vaccination when she was “7 years old in Philippines”, and that “since then” she has had “great sensitivity even to mosquito bites, hair chemical [sic] and penicillin”.

(d) On 16 April 2020, Ms Glover was informed that because of her objection, she would not be rostered to work from 1 May 2020.

(e) On 20 April 2020, Ozcare encouraged Ms Glover to reconsider her position as it would affect her employment with Ozcare.

(f) On 24 April 2020, Ms Glover provided Ozcare with further information in support of her objection, which included a medical certificate dated 22 April 2020 and a signed vaccination declination form.

(g) On 24 April 2020, Ozcare attempted to contact Ms Glover on three occasions to discuss the vaccination requirement.

(h) On 24 April 2020, Ozcare directed Ms Glover to speak with Ozcare’s injury management adviser regarding her circumstances.

(i) On 27 April 2020, Ozcare attempted to contact Ms Glover to discuss her circumstances.

(j) On 27 April 2020, Ozcare sent Ms Glover an email requesting that she make contact to discuss her circumstances.

(k) On 28 April 2020, Ozcare attempted to contact Ms Glover to discuss her circumstances.

(l) On 28 April 2020, Ozcare sent Ms Glover an email explaining that if she was not vaccinated against influenza, she would be unfit for her role on medical grounds and not rostered to work. Ozcare also sought permission for Dr Andrew Lingwood to speak with Ms Glover’s medical practitioner regarding her circumstances.

(m) On 30 April 2020, Ms Glover wrote to Ozcare stating she could not access her medical records evidencing her prior reaction to the influenza vaccine in the Philippines and instead had provided another medical certificate to Ozcare.

(n) Ozcare responded, requesting Ms Glover’s medical practitioner complete a form regarding her medical condition, at its cost.

(o) On 5 May 2020, Ms Glover provided Ozcare with a second medical certificate, in support of her request to access 500 hours of accrued personal leave. The certificate stated that Ms Glover was advised not to attend work during winter months, including September.

(p) On 8 May 2020, Ms Glover informed Ozcare that she wanted to consider her options before getting the influenza vaccination. Ozcare again requested Ms Glover’s permission to speak with her medical practitioner to obtain further information about her circumstances.

(q) On 12 May 2020, Ozcare requested Ms Glover’s response to its request for further medical information by 13 May 2020.

(r) On 14 May 2020, Dr Bairagi provided Ozcare with further information regarding Ms Glover’s medical condition.

(s) On 15 May 2020, Ozcare sought advice from Dr Lingwood regarding Dr Bairagi’s report.

(t) On 20 May 2020, Ozcare considered Ms Glover’s objection to the vaccination requirement having regard to the medical information provided.

(u) On 22 May 2020, Ozcare wrote to Ms Glover regarding her capacity to undertake her current position, noting she would not be rostered to work.

(v) On 26 August 2020, Ozcare spoke with Ms Glover regarding her circumstances.

(w) On 27 August 2020, Ozcare wrote to Ms Glover noting that as she remained unvaccinated, she would not be rostered to work and she could continue to access her accrued paid entitlements.”

[179] Ozcare submits that this timeline is best practice and the “lengths” to support a finding that the dismissal was fair. Ozcare submits that it went to “great lengths” to understand Ms Glover’s “objection” over the six months prior to Ms Glover’s employment ultimately ending.

[180] In relation to the other matters relied upon by Ms Glover, Ozcare submits:

“(a) Ms Glover asserts that Ozcare did not inform her of the entire content of Aged Care Direction (No 10). That is not to the point. Ozcare adopted its own policy as it was entitled to do, as Ms Glover’s employer, regarding its own requirement for employees to be vaccinated against influenza.

(b) Ms Glover asserts that because of her contraindication to the influenza vaccine, it was unreasonable for Ozcare to expect her to be vaccinated, to not allow her to perform any work and to ultimately terminate her employment. Leaving aside that there is no medical evidence showing Ms Glover presently has a contraindication to the influenza vaccine, and that she has maintained since May 2020 that she is not interested in any further investigation into this, Ozcare took this at face value. Ozcare accepted Ms Glover’s belief that she could not be vaccinated against influenza. Ozcare was given medical advice from Ms Glover’s medical practitioner that she should not attend her workplace during the winter months, including September, as she was unvaccinated. That is, in the absence of having the influenza vaccination, a requirement of her role, Ms Glover was medically advised not to return to her usual permanent part-time role. It cannot be unreasonable for Ozcare to dismiss a permanent employee who is medically advised not to work for four months in year.

(c) Ms Glover suggests Ozcare was not willing to modify a position for her, including by adopting other safety measures recommended by Queensland’s Chief Health Officer. Ozcare have adopted those practices, in addition to requiring its residential aged care and home care staff to be vaccinated.”

[181] Ozcare maintains that it has applied the vaccination policy evenly and dispassionately to require its entire Queensland workforce to undergo vaccinations. All aged care and home care employees that are not vaccinated have not been rostered to perform “client facing work” since 1 May 2020.

[182] Ozcare submits that Ms Glover is a competent home care worker and has qualifications in textile engineering, information technology and real estate. She is well-placed to find further employment in an alternative care setting or in another field.

[183] In its closing submissions, Ozcare maintains that it had two valid reasons for dismissing Ms Glover, based on her capacity as she was unable or unwilling to be vaccinated as required, and based on her conduct as she refused to attend a specialist medical practitioner to allow Ozcare to investigate whether it would be safe for her to obtain the vaccination. Ozcare submits that its treatment of Ms Glover throughout 2020 was considerate and fair in all of the circumstances.

Lawful and reasonable

[184] Ozcare accepts that in considering whether the employer had a valid reason to dismiss Ms Glover relating to her capacity, the Commission must consider whether the mandatory vaccination requirement is lawful and reasonable. 14

[185] Ozcare submits that in accordance with her contract of employment, Ms Glover’s duties included the requirement to “practice and comply with Ozcare policies and procedures”, 15 including the Immunisation Policy. Ozcare therefore maintains that it had contractual power to require Ms Glover to obtain the influenza vaccination, and that there is no law prohibiting Ozcare from requiring this of its employees.

[186] In reply to Ms Glover’s submissions, Ozcare submits it does not require a positive mandate from the Government to give directions for its staff, rather the contract of employment provides that mandate. 16

[187] As to reasonableness, Ozcare submits this does not require proof that requirement was the preferable or most appropriate course of action. It submits that it does not require the employer to establish the direction was in accordance with best practice nor the best interests of the employee. 17 Ozcare submits that what is reasonable is looked at against the backdrop of managerial prerogative, and depends on the “nature of the employment, the established usages affecting it, the common practices which may exist and the general provisions of the instrument governing the relationship”.18

[188] Ozcare relies on seven factors arising from the nature of the employment relationship, in concluding that the Immunisation Policy is reasonable. These factors are relevantly summarised as follows.

•  First: the Immunisation Policy is reasonable and necessary taking into account the deadly consequences of influenza for the elderly, and the demographics of Ozcare’s clients. Ozcare submits that older Australians are at higher risk of complications related to influenza, and submits that most of its in-home care clients are aged 65 years and above. Ozcare states that 80% of its in-home care clients are considered vulnerable, and notes that up to 90% of deaths from influenza occur within the over 65 age group. Ozcare submits that by reason of the steps taken in the aged care industry responsive to the COVID-19 pandemic, there is evidence of the benefits of mandatory vaccination in the industry. While Ozcare acknowledges that a decline in deaths of older Australians in aged care could be attributable to a number of precautions taken in the industry, it submits it is ‘undeniable’ that the requirement for all staff and visitors to aged care facilities be vaccinated throughout Australia was a substantial contribution to this outcome. Ozcare therefore submits that the public health benefits of influenza vaccination cannot be ignored by the Commission;

•  Second: Ozcare submits that the Immunisation Policy reflects the regulatory regime Ozcare operates within. It submits the Policy is a reflection of the Charter of Aged Care Rights and the Aged Care Quality Standards. Ozcare submits that by those instruments, aged care residents have the right to safe and high quality care which optimises their health, well-being and quality of life. 19 Ozcare submits that any failure by it to adhere to these standards can result in regulatory action, and it is therefore required to have a workforce that is planned to enable the delivery of safe care. Ozcare’s position is that mandatory vaccination of its staff for influenza can be seen to be reflective of this requirement, in light of the industry’s experience in 2020.

•  Third: Ozcare submits that the Immunisation Policy reflects its contractual obligations to Queensland Health regarding staff vaccination. It submits it meets the vaccine preventable disease screening requirements as set out in the Health Services Directive #QH-HSD-047-1:2016 (HSD). Further, it submits that the Australian Immunisation Handbook strongly recommends influenza vaccination for health care workers and care workers. 20

•  Fourth: Ozcare submits that the Immunisation Policy reflects the work health and safety obligations it is required to comply with. It cites s.19(2) of the WHS Act, which provides it is required to ensure, so far as is practicable, the health and safety of those in Ozcare’s care. It submits that s.19(1) imposes a similar obligation with respect to its staff. Ozcare submits these obligations require the elimination of, or reduction of, risk so far as is practicable; and it is required to discharge its obligations “by taking an active, imaginative and flexible approach to potential dangers in the knowledge that human frailty [or complacency] is an ever-present reality”. 21 Ozcare submits that the regime leaves it to Ozcare, and not the government, to identify and control its own risks.

[189] Ozcare submits that the risk of transmission of influenza is acute in an aged care environment. It submits that in considering the hierarchy of risk control measures that Ozcare is required to apply:

“(a) Substitution, isolation, engineering and administrative controls are not available, not practicable, or do not by themselves wholly eliminate or reduce the risk of transmission. The sick leave entitlement (an isolation control) can only act as an isolation measure after the virus incubates, and after the employee identifies the virus in their body. The employee can transmit the virus whilst the employee is asymptomatic. Sick leave is also reliant upon the employee of taking the step of removing themselves from the workplace.

(b) It is not feasible to introduce physical barriers (an engineering control) due to the physical nature of care, and the need for contact between workers, clients and visitors.

(c) PPE and hygiene policies are administrative controls, and the last line of defence in any risk management system. They are user dependent and thus liable to complacency and human error.

(d) In that light, the practicability of the influenza vaccination as a control measure is obvious. It is widely regarded as the most important control measure to reduce the risk of a person contracting the virus. Depending on the season, vaccination can reduce the risk of infection in the general population by 40% to 60%. The risk of a vaccinated employee transmitting the virus to clients, staff and visitors therefore decreases. The more staff that are vaccinated, the more protection is created. Maximising influenza rates is central to any influenza prevention strategy in a workplace, noting that individuals spend a spend a significant period of time at work.” 22 (citations omitted)

[190] Detailing further factors which Ozcare says is reasonable:

•  Fifth: Ozcare submits that the Immunisation Policy is the superior way in which it is able to manage its own liability, taking into accounts its statutory obligations as noted. In this regard, it notes there are examples of employers being exposed to common law injury claims for the transmission of infectious disease at workplaces. 23

•  Sixth: Ozcare submits that the Immunisation Policy protects the health and safety of its workforce, in addition to its clients. It submits this is a mandatory consideration, and the Policy is the best means of protecting staff from contracting influenza, including those staff with compromised immune systems who are at risk of developing complications.

•  Seventh: it submits the Immunisation Policy was justified “in a temporal sense” as a measure taken to respond to the COVID-19 pandemic. It submits the Commission should have regard to the fact that little was known about the COVID-19 pandemic as at March 2020. It submits the Aged Care Directive was introduced as a means to ensure that the public health system could cope with what was predicted, and as a means to ensure the elderly were protected against contracting both influenza and COVID-19. The Respondent submits that early research demonstrated that those infected by both influenza and COVID-19 were more than twice as likely to die when compared to an individual who is infected with COVID-19 alone. 24 The Respondent submits that on the outset of the COVID-19 pandemic, around 2,000 of its 13,000 home care clients stopped carers from coming into their homes in fear for their safety. Ozcare therefore submits that the Immunisation Policy was a means to ensure that it could bring confidence for its in-home care clientele, and continue to provide in-home care in the safest manner possible. It submits that as at the date of the hearing in this matter, the measure had contributed to the fact that all but 83 of its in-home care clients had regained confidence in Ozcare and have reinstated their services.25

[191] As to Ms Glover’s argument that the Aged Care Direction limited mandatory vaccination to aged care facilities and not in-home care, Ozcare submits this does not bring about the conclusion that the Immunisation Policy is unreasonable. Ozcare reiterates its submission that the government left it to Ozcare to control its own safety hazards, noting that if it fails in this regard it faces criminal sanctions. Ozcare submits that the Aged Care Direction is “neither here nor there” in the face of its duty to eliminate and minimise risk, so far as is practicable. 26

[192] Ozcare submits that the unchallenged evidence is that it revisited its Immunisation Policy on the advent of the COVID-19 pandemic, and the “developing (and deadly)” risk of its clients contracting influenza and COVID-19 at the same time. Ozcare submits that in its risk assessment for in-home care, it identified that:

(a) those working in in-home care are dealing with the same type of clientele who are in residential aged care facilities (being the elderly and vulnerable);

(b) home care workers are performing similar work to those in aged care facilities (being close to another where care giving is inherent in the work);

(c) home care workers are often exposed to more clients – home care workers can visit up to 10 clients a number of clients on any day, and accordingly, the transmission of infectious disease can be spread between homes;

(d) Ozcare has no way of knowing what third parties have attended a client’s home, and in turn, has no control over any infectious disease to which clients and home care workers can be exposed; and

(e) by contrast, Ozcare is able to control who enters a residential aged care facility. It has more ability to control the transmission of influenza in that context (e.g. by locking down wings in residential aged care facilities in case of outbreak).

[193] Ozcare submits that in light of the experience of the industry in 2020, it is clear that a mandatory vaccination requirement is an effective measure in decreasing the rate of injury and death from influenza. It submits that vaccination is the best control measure available to it, and the cost of administering vaccinations to its client-facing staff is not disproportionate in light of the amount of injury and death that can be avoided.

[194] Ozcare submits that by extending the Immunisation Policy to in-home care, it has discharged its WHS Act duties. It submits that leaving the control of risk of transmission to PPE and hygiene policy only omits the best risk control measure available, and that this omission constitutes a failure to minimise risk as far as is practicable and constitutes a failure to discharge its WHS Act duty.

[195] Ozcare submits that exclusion of workers who cannot be vaccinated constitutes best practice care, and workforce planning for the delivery of safe care, for the purposes of the Charter of Aged Care Rights and the Aged Care Quality Standards. Ozcare submits that whether there are other industry participants who may, or may not, have made the same risk assessment is not a relevant consideration. It submits that the WHS Act duty is personal to Ozcare, based upon its own hazards in its own workplace. Ozcare submits that further to the experience of 2020, it remains to be seen how the industry responds ‘as a collective’. Ozcare submits it cannot be “complacent in the thought that some industry participants might not be instituting a particular control measure”; it submits it must take its own “active, imaginative and flexible approach”. 27

[196] As to Ms Glover’s argument that she has a medical contraindication to the vaccination which should exempt her from complying with the vaccination requirement, Ozcare provided closing submissions as follows.

[197] Ozcare submits that the evidence before the Commission is that Ms Glover ‘believes’ she has an allergy to the vaccination, and this belief derives from what her parents have told her. Ozcare also submits that in 2016, 2017, 2019 and 2020 Ms Glover has indicated she was declining the vaccination due to ‘allergies’, and has only recently asserted that her reaction in 1963 constituted anaphylaxis. 28 In this regard, Ozcare submits that her treating doctor, Dr Bairagi, advised he could not confirm the diagnosis in the absence of medical records, and could only rely on what Ms Glover has told him.29

[198] Ozcare submits that based on that uncertainty, it treated her as a non-vaccinated employee in accordance with its Immunisation Policy. It submits it allowed her to access her paid leave entitlements and submits there was no non-client facing role to which she could be redeployed.

[199] Ozcare submits that further to the hearing in this matter, there remains no evidence that Ms Glover has a medical contraindication to vaccination. Ozcare relies on the evidence that in 2021, the egg content within vaccinations is usually less than 1 microgram; and approximately 130 micrograms of egg protein is required to trigger an allergic reaction, and therefore the influenza vaccination cannot post any risk to egg allergy sufferers today. 30

[200] Ozcare submits that while specialist immunologists and allergists are able to examine Ms Glover and conduct a number of tests to ascertain whether she still possesses an allergy, Ms Glover has refused to explore this.

[201] Ozcare submits that Ms Glover’s persistent refusal is contrary to the WHS Act duty of a worker to cooperate with safety policy and procedure, and the worker’s duty to comply with reasonable instructions to allow an employer to comply with its WHS Act obligations. Ozcare concludes that:

“Ms Glover cannot assert that her stated medical contraindication makes the Immunisation Policy unreasonable, and then refuse to co-operate with Ozcare to ascertain whether that medical contraindication exists. The position taken by Ms Glover constitutes a second valid reason for her dismissal”. 31

[202] As to Ms Glover’s submission that the Immunisation Policy is unlawful or unreasonable because she did not provide consent to be vaccinated, and that consent is a legal requirement of the Australian Immunisation Handbook, Ozcare responded as follows.

[203] Ozcare submits that the Australian Immunisation Handbook is not a ‘legal requirement’, and does not have the status of law. Further, it submits it did not apply to Ozcare’s decision to introduce its Immunisation Policy. Ozcare refers here to the introduction of the handbook which provides it is clinical ‘guidelines’ for healthcare professionals. Ozcare submits it is not operating a clinical practice for such clinical guidelines to be followed.

[204] Further, Ozcare submits that medical consent is a legal issue between practitioner and patient. It submits that consent has no relevance to an employee’s duty to obey under the contract of employment, and that if an employee does not wish to consent to a requirement imposed on them, they are at liberty to bring the employment to an end. It submits likewise, the employer is entitled to dismiss the employee in such a situation.

[205] Ozcare also notes that the Australian Immunisation Handbook strongly recommends the vaccination for care workers; therefore this guidance supports a conclusion that Ozcare’s Immunisation Policy is reasonable.

[206] As to the other criteria under s.387 of the Act, Ozcare gave closing submissions as follows.

Notification of the reason and opportunity to respond

[207] Ozcare submits that it engaged with Ms Glover extensively, over a six-month period, during which she was notified of the requirement to be vaccinated and that the position she had taken may affect her employment. It relies on the evidence before the Commission that she had a number of opportunities to provide responses.

[208] Ozcare submits that in this regard, the evidence before the Commission lends towards a finding that the dismissal was fair, noting the Applicant was provided a fulsome opportunity to respond.

Support person

[209] Ozcare maintains Ms Glover was not refused support at any stage, and it also extended its employee assistance program to Ms Glover.

Unsatisfactory performance

[210] Ozcare notes this is not a relevant consideration.

Size of the business and human resources expertise

[211] Ozcare submits that its human resources expertise allowed it to be in a position to engage with Ms Glover extensively over a six-month period, and its size and financial resources allowed it to be in a position to incur the cost of Ms Glover taking personal leave during that consultative process.

Ms Glover’s mitigating circumstances

[212] As to Ms Glover’s length of service, her age and financial hardship as a result of her dismissal, the Respondent submits that while these circumstances are mitigating they cannot make the dismissal a disproportional response in all of the circumstances. Ozcare’s position is that Ms Glover “steadfastly refuses to co-operate with Ozcare to explore whether she can comply with the Immunisation Policy”. Ozcare submits that no dismissal can be said be disproportionate when the employer has made attempts to continue the employment, and the employee refuses to cooperate with those attempts.

[213] Further, Ozcare relies on allowing Ms Glover access to her 500 hours of accrued sick leave as minimising her financial burden as far as possible. It notes that this amounted to pay between May and October 2020. Ozcare submits that it could have dismissed the Applicant in April 2020, on first learning that she would not comply with the Immunisation Policy, but chose not to do so.

Ozcare did not mislead Ms Glover

[214] Ozcare refers to Ms Glover’s submission that she was not told that those who have a medical contraindication to the vaccine did not have to comply with the Aged Care Direction, and she was therefore misled. Ozcare gave closing submissions that this argument is premised on an assumption that the Aged Care Direction wholly governs the question of whether or not the Immunisation Policy is lawful and reasonable; and Ozcare submits that for its above reasons, this argument cannot be accepted.

[215] Ozcare relies on the evidence as before the Commission, in stating Ms Glover was not misled and was advised of the effect of the Aged Care Direction, and Ozcare’s decision to extend it to in-home care as at 3 April 2020. Ozcare submits that its position was repeated to the Applicant on 8 April 2020.

[216] Ozcare submits that for conduct to be considered misleading, it must induce someone into error. It submits there must be a causal link between conduct and an error on the part of the person exposed to it. 32 Ozcare submits that its correspondence to Ms Glover cannot be said to be misleading, nor can it be said that Ms Glover committed an error on receiving the correspondence from Ozcare. Ozcare relies on its evidence that Ms Glover was repeatedly made aware of the terms of the Immunisation Policy, and that non-compliance with the policy would place her employment at risk. It submits that her responses throughout 2020 demonstrate that she was aware of what the policy required and consequences of not complying (or not being able to comply) with it.

Alternative roles

[217] In response to the Applicant’s submissions, Ozcare submits that it considered redeploying Ms Glover to a non-client facing role in accordance with its Immunisation Policy, however there was no such role, which it states was confirmed in cross-examination at the hearing. 33

Discrimination

[218] While Ms Glover alleges that she was discriminated against, Ozcare submits there is no merit to this assertion. Ozcare submits that Ms Glover was not treated differently when compared to others, and notes that all employees who declined the vaccination were managed as non-vaccinated employees in accordance with the Immunisation Policy. 34

[219] As to any discrimination contrary to the Anti-Discrimination Act 1991, Ozcare submits that Ms Glover has not established that she possesses a protectable attribute for the purposes of that legislation.

[220] Ozcare submits that Ms Glover refused to co-operate with it to investigate and establish this; and it is a genuine occupational requirement that Ms Glover be vaccinated against influenza disease.

Efforts fair and exhaustive

[221] Ozcare submits that the Commission should have regard to the fact that it engaged with Ms Glover extensively for over six months, and during this time allowed her to access her paid leave entitlements rather than proceeding to dismissal. It submits this is not a case where it could be said the employer acted in haste, rather Ozcare explored all avenues towards Ms Glover’s employment continuing in accordance with the Immunisation Policy.

[222] For all of the above reasons, Ozcare maintains that it had a valid reason to dismiss Ms Glover and the dismissal was not otherwise harsh, unjust or unreasonable. It submits the application should be dismissed.

Consideration

[223] A dismissal may be unfair, when examining if it is ‘harsh, unjust or unreasonable’ by having regard to the following reasoning of McHugh and Gummow JJ in Byrne v Australian Airlines Ltd:³⁵

“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

[224] I am duty-bound to consider each of the criteria set out in s.387 of the Act in determining this matter.³⁶

[225] Before I turn to the considerations at s.387 of the Act, I wish to deal with the evidence of Dr Lingwood. While I have had regard for his specialist medical knowledge, given his close association with Ozcare since 2011, if it were necessary to do so, I would not be satisfied that his evidence would satisfy the Federal Court Rules 23.13, nor the Expert Evidence Practice Note. Dr Lingwood’s written evidence was given by way of a witness statement, not by way of an expert’s report. Further, he is not independent of Ozcare, having provided services for a decade.

[226] The Commission is not bound by the rules of evidence, however it is appropriate to have due regard to them at the Commission’s discretion. I am satisfied that Dr Lingwood’s evidence is useful, informative and reliable. He made appropriate concessions to state where he is not an expert. I am satisfied he did not embellish his evidence to advance Ozcare’s position.

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)

[227] When considering whether there is a valid reason for termination, the decision of North J in Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373 provides guidance as to what the Commission must consider:

“In its context in s.170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same time the reasons must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must “be applied in a practical, common-sense way to ensure that the employer and employee are treated fairly.”

[228] However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.³⁷

[229] Ms Glover holds a genuine belief that she would suffer an anaphylactic reaction to an influenza vaccination. She holds this belief based on what she was informed happened to her as a child, 57 years ago.

[230] Ms Glover has made no attempts to satisfy herself that she continues to suffer from such a condition, even after nearly six decades have passed. Ms Glover refuses to seek medical advice on this issue. She has informed the Commission that she has no interest in ever meeting with an immunologist to discuss the matter, and she told her GP the same, as reported to Ozcare in May 2020.

[231] Ms Glover has not provided any evidence of a medical practitioner that she actually continues to suffer from the condition. Her attendance upon her GP is simply her informing her GP that she believes that she suffers from the condition.

[232] Nevertheless, whether Ms Glover actually has a condition, or simply believes she has a condition, her employment would have come to an end because of her failure to agree to the vaccination. Ozcare’s decision to make the vaccination a mandatory requirement from 1 May 2020 means that Ms Glover’s reasons for refusing the vaccination would not have affected the decision made by Ozcare to not roster her for shifts from that time.

[233] It is clear that in March and April 2020, Ozcare management was faced with a considerable decision to make. The first Aged Care Direction issued on 21 March 2020 made it mandatory for workers and visitors to aged care facilities to have an up-to-date influenza vaccination, if it was available to them. Further, at around this time the threat of coronavirus became most pronounced, with the Prime Minister declaring a shut-down of large parts of the economy and community.

[234] The evidence of Ozcare’s witnesses is that a substantial number of home-care clients cancelled their services. The vulnerable and aged members of society who require Ozcare’s assistance cancelled the important services provided to them. It is not too far a stretch to imagine that many of these elderly clients were fearful of Ozcare workers coming to their home and potentially infecting them with COVID-19.

[235] The clear test in determining if there was a valid reason for the dismissal is deciding if the mandatory requirement of employees being vaccinated against influenza, whilst not providing for any exemptions at all, was a lawful and reasonable requirement. Relevant authorities have been put before the Commission by Ozcare on this issue for which I have given relevant weight.

[236] The circumstances of the employment must be taken into account. As is clear from the evidence of Ozcare, it is bound by certain Acts which do not govern many other employers, for example, the AC Act. Further, the Charter of Aged Care Rights declares relevant to a care recipient’s rights, “I have the right to safe and high quality care and services.”

[237] Ms Glover’s role was not that of a widget maker in a widget factory where her status as an unvaccinated employee might not matter. In that scenario, it might be lawful for a widget factory employer to mandate influenza vaccinations for widget makers where no such government directive had been made; however, it might not be or is not likely to be reasonable in all of the circumstances.

[238] It is clear that by early April 2020, Ozcare had decided to re-write its Employee Immunisation Policy to make influenza vaccinations a mandatory requirement from 1 May 2020 for all client-facing roles. It did so after the first Aged Care Direction had been issued, even providing the exemption Ms Glover seeks to rely upon where the Chief Health Officer stated it was mandatory to have an influenza vaccination “if such a vaccination is available to the person.”

[239] On any plain reading of the Aged Care Direction first issued and later superseded by many further Aged Care Directions until December 2020, it was a lawful requirement to be vaccinated against influenza to enter or remain on the premises of a residential aged care facility unless a vaccination was not available to the person. It is widely understood and agreed between the parties and acknowledged by Dr Lingwood that having a prior anaphylactic reaction to the vaccination is a strong indicator of the vaccination not being available to the person due to the risk of further anaphylactic reaction.

[240] It is further noted that the various Aged Care Directions provided such strict rules around only residential aged care facilities and did not apply to community care or in-home care.

[241] Ozcare’s decision to introduce the updated Employee Immunisation Policy which mandated a higher bar than that contained within the Aged Care Direction in force at the time is challenged by Ms Glover. She considers that it was not reasonable for Ozcare to introduce a policy which went above and beyond the Aged Care Direction, and which she could not meet due to the condition she understands that she has.

[242] I do not accept that Ozcare’s decision to introduce and enforce the Employee Immunisation Policy means that it has acted unlawfully. Ozcare has not physically required any employees, including Ms Glover to be vaccinated against their will. It has not held an employee down against their will and inflicted a vaccination upon them. Further, I do not consider its stated position requiring employees to be vaccinated or face termination is unlawful. I note it does not breach any ground of discrimination.

[243] Ms Glover has suggested at [68] that an employer can mandate mask wearing and an employee, essentially must agree to such a request. There are some employees who might be unable to wear a face mask. If an employer made such a request to an employee and the employee was unable to meet the employer’s request, there would be a similar impasse as this scenario. The employer in that scenario would need to determine if an exemption would be granted to the employee. If the employer determined that it required a face mask to be worn and the employee was unable to comply with the request, the employer might also seek to rely on the requirement being a lawful and reasonable requirement, and the employee then lacking the capacity to meet such requirement.

[244] Where Ozcare has mandated influenza vaccinations for client-facing employees, I consider it to be a lawful requirement for continued employment. The consideration then turns to whether it was a reasonable requirement in all of the circumstances.

[245] Ms Glover was provided with many months to reconsider her position. Understandably, Ozcare chose not to roster Ms Glover for any shifts beyond 1 May 2020 in strict compliance with its new policy. Where Ms Glover had, in earlier years relied on completion of a declination form for the vaccination, there was no misapprehension in mid-2020 that she would be excused from the vaccination and permitted to return to client-facing work.

[246] Ms Glover was permitted by Ozcare to access her paid personal leave which was a very substantial amount of paid leave on account of Ms Glover having been extremely well over many years. I accept that Ozcare did not rush Ms Glover into unemployment, and let her draw down firstly on her paid personal leave before allowing her to elect to take her annual leave and long service leave.

[247] In considering the reasonableness of the introduction of the revised Employee Immunisation Policy, I have had significant regard to the vulnerability and age of the clients cared for by Ozcare and its employees in community care. Thousands of elderly clients, including more than 8,000 clients aged 75 or older ought to expect that the paid worker attending their home will take every precaution not to share influenza which alone could cause them to become extremely unwell or even die. Combined with the risk of potentially contracting coronavirus, it is, understandably, an alarming concern for the client and for their family (if they have family). In any inquiry into how an Ozcare client contracted influenza if largely isolated at home with few visitors, Ozcare would no doubt be required to answer questions, if put, as to whether the Ozcare worker was vaccinated against influenza. If answering to a client or a client’s family that the Ozcare worker knowingly was unvaccinated and permitted to work, this could or might expose Ozcare to legal proceedings for relevant breaches of duty of care to its vulnerable patient.

[248] I accept the evidence of Ozcare’s witnesses that its community-care employees could potentially become super-spreaders of influenza, on account of them visiting many clients’ homes per day, and there being no formal infection control in the clients’ homes; far less than available in residential aged care. I have had particular regard to the evidence of Mr Foley at [163]. I accept Mr Foley’s evidence that despite Ms Glover’s assurances that she would religiously wear PPE, Ozcare has reasonably determined that in the event an employee contracted influenza, there is risk that it may be passed on to clients in their homes. The wearing of PPE alone, without vaccination is an insufficient safeguard.

[249] Of course, being vaccinated against influenza does not guarantee a person will not contract influenza, or infect another person; this is widely understood. However, Ozcare could, in any examination of the circumstances of a client contracting influenza, declare that all of its client-facing employees are up-to-date with vaccinations if its policy is enforced. It is a comfort it could rely upon if potentially involved in litigation, and also an assurance it can give to clients and their family members as part of its commitment to safe and high-quality care.

[250] I consider it disappointing that Mr Godfrey’s letter to Ms Glover dated 20 April 2020 sought to rely on the Aged Care Direction issued by the Chief Medical Officer, rather than the truthful position that it was Ozcare’s decision to implement its Employee Immunisation Policy which requires of employees greater obligations than the Aged Care Direction. This is true on two points:

•  firstly, Ms Glover’s work is in community care and not at an aged care facility; and

•  secondly, by not acknowledging that Ozcare cared not for the exemption within the Aged Care Direction.

[251] I consider the statement made to Ms Glover that “as per the direction above, it is not only our legal responsibility, but also our moral responsibility to ensure we safeguard all of our clients” to be misleading and inaccurate. The decision made by Ozcare to introduce mandatory influenza vaccination across all of its client-facing workforce was not as per the Aged Care Direction in force, but a decision it made of its own, over and above the Aged Care Direction.

[252] It was within Mr Godfrey’s knowledge and capability to properly explain to Ms Glover the reasons for the decision, without improperly relying on the Aged Care Direction. This error was further exacerbated by Mr Therkelsen in late August 2020 where he copied part of Mr Godfrey’s 20 April 2020 explanation to Ms Glover into his own correspondence. The concession made by him at the hearing was an appropriate concession to make.

[253] Despite my finding that the communication on this issue to Ms Glover was misleading and inaccurate, it did not and could not have changed the result for Ms Glover. Even if Mr Godfrey and others had informed Ms Glover that it had decided to implement a policy which required more of its employees than that within the Aged Care Direction, extended to community care and provided no exemptions whatsoever, Ms Glover would not have agreed to be vaccinated.

[254] I have also had regard to Ms Glover’s medical certificates, noting that her GP recommended on Ms Glover’s statement that she had suffered an anaphylactic reaction when a child, that she not be rostered to work for four months of the year during winter and September. It is the evidence of Ozcare that it would not be reasonable or practicable to accommodate such an annual request for a permanent part-time employee.

[255] I consider given the size of Ozcare and the many staff it must have in caring for as many people as it does, it would not be unreasonable to accommodate such a request if it had been made. However, it was not made by Ms Glover and not suggested by her that annually that is what could happen, knowing she would have exhausted all of her many years of accrued personal leave, and such a lengthy period of time would be unpaid leave. Where Ozcare had permitted Ms Glover to be on paid personal leave during 2020, it would not be expected, in my view, to have to accommodate paid personal leave of 10 days per annum on account of her decision not to be vaccinated.

[256] Further, where I consider that Ozcare could have accommodated a period of non-work for four months on account of the size of its workforce, the ability to contract influenza does not simply crystalize on 1 June each year and cease on 30 September. Ms Glover, unvaccinated, could contract influenza outside of this period of time. In addition, where it is put that Ozcare could make such an accommodation for Ms Glover, it might then be necessary to consider such an accommodation for other employees in a similar position, or for those who simply refuse on non-medical grounds to be vaccinated. This might then unfairly expand the group of employees requesting accommodation of their medical grounds for refusing the vaccination, or their political grounds for refusing the vaccination. I consider, in that scenario, it would be an unnecessary and unreasonable burden on Ozcare.

[257] I accept Ozcare’s submission that in determining the reasonableness of the revised Employee Immunisation Policy, it is necessary to do so against the backdrop of managerial prerogative. Ozcare has determined, and I accept, that this is a decision the business considered necessary to take to safeguard its clients and employees as far as it is practicable to do so.

[258] Ozcare has submitted that a second valid reason for dismissal exists due to Ms Glover’s persistent refusal to comply with her duty to follow reasonable instructions to allow Ozcare to comply with its WHS Act obligations. It is put by Ozcare that Ms Glover cannot assert that her stated medical contraindication makes the Employee Immunisation Policy unreasonable, and then refuse to cooperate with Ozcare to ascertain whether that medical contraindication exists.

[259] I consider that Ozcare is prevented from succeeding on this point when it largely left Ms Glover for many months to her own devices while she was on paid personal leave, then annual leave and long service leave. It didn’t assert to Ms Glover that she needed to demonstrate a proven contraindication to the vaccination. It didn’t make appointments with an immunologist and direct her to attend the appointments at its cost. It simply restated its position that she would not be rostered on for work. It is clear by its earlier, unsuccessful jurisdictional objection to the unfair dismissal claim that it was not going to take any positive action at all in relation to Ms Glover.

[260] Having regard to all of the evidence and submissions before the Commission, I find that Ozcare’s decision to mandate influenza vaccinations for all of its client-facing employees, without allowing any exemption was lawful and reasonable.

[261] I do not consider the reason for the dismissal was capricious, fanciful, spiteful or prejudiced. I am satisfied there was a valid reason for the dismissal having regard to Ms Glover’s capacity and Ozcare’s operational requirements.

[262] In coming to my decision, I have had practical regard for the relationship between Ms Glover and Ozcare. I acknowledge Ms Glover’s right to decline the vaccination based on her genuinely held belief that she may suffer an anaphylactic reaction to the vaccination. I consider, in all of the circumstances, Ozcare’s rights, together with its responsibilities to its clients override Ms Glover’s right to decline the vaccination and remain employed.

s.387(b) - Whether the person was notified of that reason

[263] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment, 38 and in explicit39 and plain and clear terms.40

[264] Ms Glover was not informed that her employment would end upon her paid leave being exhausted. This is clear by virtue of Ozcare’s earlier jurisdictional objection, its correspondence to her in November 2020, and Mr Therkelsen’s evidence at [113].

[265] Ms Glover was never informed that her employment ended on 4 October 2020, however I have earlier determined by act and deed that the termination took effect on that day when Ms Glover’s paid leave was exhausted, and she was repeatedly informed that she would not be rostered to work.

[266] Ms Glover has maintained in these proceedings that she considered her employment ended when her paid leave was exhausted. The Commission has found for her on this point. While I find that Ms Glover was not notified of the reason for the dismissal on 4 October 2020, she concluded for herself that she had been dismissed on account of refusing the vaccination.

s.387(c) - Whether there was an opportunity to respond to any reason related to the capacity or conduct of the person

[267] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment.⁴¹

[268] The opportunity to respond does not require formality and this factor is to be applied in a common sense way to ensure the employee is treated fairly.⁴² 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.⁴³

[269] Ms Glover’s employment did not end due to her conduct; rather it was due to her capacity. I accept Ozcare’s submissions that it had been liaising with Ms Glover for a period of nearly six months on the issue of her refusal to be vaccinated. I am satisfied there was a very substantial period for Ms Glover to respond to the issue relied upon by Ozcare not to roster her for work.

s.387(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

[270] This is not a relevant consideration given the circumstances of the dismissal.

s.387(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[271] This is not a relevant consideration given the circumstances of the dismissal.

s.387(f) - Whether Ozcare’s size impacted on the procedures followed and s.387(g) - Whether the absence of a dedicated human resource management specialist impacted on the procedures followed

[272] I am satisfied that Ozcare’s size did not impact upon the procedures followed by it. It is a very large organisation. Relevant to s.387(g), Ozcare is well-resourced and there is no absence of dedicated human resource specialists.

s.387(h) any other matters that the FWC considers relevant

[273] I consider that the following matters are relevant to my consideration of whether the dismissal was harsh, unjust or unreasonable.

Length of service and age

[274] Ms Glover had over 10 years’ service at the time of the dismissal. I consider this to be a very significant period of time. I further note that Ms Glover’s period of service was unblemished. I have had particular regard to Ms Glover’s age.

Impact of termination

[275] I have had due regard to the extremely frugal position Ms Glover has been placed in on account of the termination. She has been on JobSeeker benefits since the dismissal and has not been able to find suitable employment. She has stated that she sometimes goes without food, she has lost weight and is, at times, unable to put petrol in her vehicle and is considering selling her vehicle.

[276] I understand Ms Glover to be single, and therefore not able to rely on a partner’s income to help supplement her JobSeeker payments.

[277] As harsh as it may seem, JobSeeker is a measure in place to hopefully be a necessary, short-term payment to unemployed people. Some applicants who come before the Commission after being dismissed are not eligible for JobSeeker on account of not being Australian citizens or residents. For example, New Zealanders who arrived in Australia after 2001 and have not been residing for more than 10 years are, to my understanding, not eligible for JobSeeker payments. On dismissal, such individuals must necessarily find it very difficult to sustain themselves without the ability to claim welfare payments.

[278] Ms Glover has had the benefit of a safety net, which I appreciate delivers to her a lesser fortnightly amount than her earlier earnings. Ms Glover’s circumstances are no doubt difficult for her to experience after being gainfully employed as a part-time employee for a long period of time. Her description of her experience post-dismissal is not lost on me.

Access to paid personal leave

[279] I accept Ozcare’s submissions that it did not react petulantly to Ms Glover’s announcement that she would never be vaccinated. It did not dismiss her before she had the benefit of accessing 500 hours of accrued personal leave.

Alternative roles

[280] I accept Ozcare’s evidence that there were no non-client facing roles for Ms Glover to be moved into which could have saved Ms Glover from being dismissed on account of her decision not to be vaccinated.

Discrimination

[281] I accept Ozcare’s submission that Ms Glover was not discriminated against as Ms Glover has not been able to demonstrate a ground of discrimination under any relevant discrimination Act, state or federal.

Is the Commission satisfied that the dismissal of Ms Glover was harsh, unjust or unreasonable?

[282] I have made findings in relation to each matter specified in s.387 as relevant.

[283] I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.⁴⁴

[284] The matters for consideration in s.387(h) which might weigh in favour of a finding that the dismissal was harsh, including but not limited to Ms Glover’s lengthy period of service, otherwise exemplary employment record and the loss of income she has endured are, however, to be balanced against the lawful and reasonable basis for the requirement of Ozcare to have all client-facing employees immunised against influenza.

[285] Though it is doubtless the case that the matters set out above will have some harsh impact on Ms Glover, they do not weigh so heavily when account is taken of the valid reason and the other matters that either weigh against a conclusion that the dismissal was unfair or are neutral, as to militate against a conclusion that the dismissal was not harsh. I am not satisfied that the dismissal was unjust, nor was dismissal disproportionate or otherwise unreasonable. The dismissal was not unreasonable.

[286] Having considered each of the matters specified in s.387 of the Act, I am satisfied that the dismissal of Ms Glover was not harsh, unjust or unreasonable.

Conclusion

[287] Not being satisfied that the dismissal was harsh, unjust or unreasonable, I am not satisfied that Ms Glover was unfairly dismissed within the meaning of s.385 of the Act. Ms Glover’s application is therefore dismissed.

COMMISSIONER

Appearances:

Glover M, Applicant.

Howard L of counsel instructed by Procter M and Miller A, for the Respondent.

Hearing details:

29 March 2021, Brisbane.

Printed by authority of the Commonwealth Government Printer

<PR730139>

 1   Glover v Ozcare [2021] FWC 231.

 2   See for example the Commission’s Practice note: Fair hearings.

 3   Transcript at PN195-200.

 4   Ibid at PN398-401.

 5   Ibid at PN483.

 6   Ibid at PN605.

 7   Ibid at PN771-774.

 8   Ibid at PN742.

 9   Ibid at PN786-796.

 10   Ibid at PN567, 575.

 11   Ibid at PN577-583.

 12   Ibid at PN601-605.

 13   Ibid at PN614.

 14   Woolworths v Brown (2005) 145 IR 285, [25]-[26].

 15   Applicant’s contract of employment dated 7 December 2009.

 16   Grant v BHP Coal Pty Ltd (2014) 244 IR 176, [112]-[115].

 17   Briggs v AWH Pty Ltd (2013) 231 IR 159, [8].

 18   R v Darling Island Stevedoring & Lighterage Co Ltd (1938) 60 CLR 601, 621-622.

 19   Charter of Aged Care Rights, clause 2(a); Aged Care Quality Standards, clause 3(a).

 20   The Respondent refers to ‘the recommendation at DF-5’.

 21   WHS Act, s 18; Lingwood Statement, [26]; Chugg v Pacific Dunlop Limited (2000) 170 CLR 249, 262; DPP v Amcor Packaging Pty Ltd (2005) 11 VR 557, [34] [AB18] (quoting Holmes v R E Spence (1992) 5 VIR 119, 123).

 22   Respondent’s closing submissions at [24].

 23   The Respondent cites Grinham v Tabro Meats Pty Ltd [2012] VSC 491, [6] [AB19] (a tortious claim made by an injured worker for contracting Q fever in the course of his employment as a meatworker).

 24   The Respondent cites Dr Lingwood’s Statement, at [19].

 25   The Respondent cites the Transcript at PN689.

 26   Respondent’s closing submissions at [30].

 27   Respondent’s closing submissions at [34]; DPP v Amcor Packaging Pty Ltd (2005) 11 VR 557, [34] quoting Holmes v R E Spence (1992) 5 VIR 119, 123.

 28   The Respondent cites 2016, 2017, 2019 and 2020 Declination Forms [CB165-168]; Email dated 14 April 2020 [CB201]; Letter dated 24 April 2020 [CB270]; and Transcript at PN200-PN204.

 29   Treating Doctor Advice Form dated 14 May 2020 [CB289-290].

 30   The Respondent cites Dr Lingwood’s Statement, at [73]-[76]; ASCIA, “Vaccination of the egg-allergic individual” dated 2017 [Exhibit AL24].

 31   Respondent’s closing submissions at [41].

 32   ACCC v TPG Internet Pty Ltd (2013) 250 CLR 640, [39].

 33   The Respondent cites the Transcript at PN771.

 34   The Respondent cites Darvel v Australian Postal Corporation (2010) 195 IR 307, [21]-[26].

35 (1995) 185 CLR 410, [465].

36 Sayer v Melsteel [2011] FWAFB 7498 at [20].

37 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.

 38   Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.

 39   Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).

 40   Ibid.

41 Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].

42 RMIT v Asher (2010) 194 IR 1, 14-15.

43 Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.

44 ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]–[7].