COVID-19 wrap up on recent workplace issues

Posted on November 16, 2021

Our wrap up on recent COVID-19 cases reveals that COVID-19 is still having an impact on workplaces across Australia. The summaries below provide important reminders for employers and employees.

Public health orders

In QNurses First Inc v Monash Health [2021] FCA 1372, the Federal Court dismissed an application for an urgent injunction seeking to restrain Monash Health from terminating the employment of nurses who are refusing the COVID-19 vaccination or refusing to disclose their vaccination status, ahead of a trial challenging the vaccine mandate.

The Victorian COVID-19 Mandatory Vaccination (Specified Facilities) Directions requires that health workers be fully vaccinated and to have their first dose by 29 October 2021 in order to continue working in a health care setting. Therefore, evidence of vaccination status was required to be provided to their employer. The direction was enforced by Monash Health, who is Victoria’s largest public health service, noting that disciplinary action including termination would be taken for workers who do not comply.

Approximately 90 nurses at Monash Health sought an urgent injunction to restrain Monash from taking disciplinary action arguing that Monash should have consulted with them before commencing disciplinary action.

This decision reinforces the importance of complying with public health directions mandating vaccinations which, in such circumstances, can warrant lawful termination of those who refuse to be vaccinated or provide evidence of vaccination status.

Workers’ compensation

In the case of Sara v G & S Sara Pty Ltd [2021] NSWPIC 286, the Personal Injury Commission of New South Wales found an employer liable for the death of an employee who contracted COVID-19 during the course of their employment. The employer was ordered to pay over $830,000 compensation to his widow.

Mr Sara was on a work trip to the United States when he contracted COVID-19 and died of complications from COVID-19 on 21 November 2020. The purpose of the business trip was to promote the business of his employer, G & S Sara Pty Ltd, an Australian based company that sells dental equipment and technology. The widow of Mr Sara made a claim that his employer was liable for his death under the Worker’s Compensation Act 1987 (NSW).

Employers need to be aware that they may be liable for a COVID-19 related death or injury where it can be established that the employee contracted COVID-19 in the course of their employment, and their work- related activities were the main contributing factor to the COVID-19 infection.

Consultation about mandatory vaccine requirements

In Brasell-Dellow & Ors v State of Queensland (Queensland Police Services) & Ors [2021] QIRC 356 a challenge to the legality of mandatory COVID-19 vaccination directions from the Queensland Police Commissioner (the Commissioner) for Queensland police officers and other staff was dismissed by a Full Bench of the Queensland Industrial Relations Commission.

The Commissioner issued a direction that required police officers and other staff to be vaccinated against COVID-19, which was made pursuant to the Police Services Administration Act 1990 (Qld). The directions were challenged in two applications by the police officers and staff who claimed that the Commissioner failed to consult with the employer before making the direction which was in breach of the relevant award and the Work Health and Safety Act (Qld) (WHS Act) and that the Commissioner did not have the power to vary the terms and conditions of employment to mandate COVID-19 vaccinations.

The Full Bench rejected all three grounds and held that the relevant Award did not require consultation on the mandatory vaccination direction and that in any event, there was appropriate and adequate consultation. The Commissioner had appropriately consulted with staff about the mandatory vaccination direction pursuant to the WHS Act and this was “reasonably practicable”. In addition, the Full Bench held that the Commissioner could give the direction and that it did not constitute a variation of the employee’s conditions of employment.

This case is a reminder to employers to consult with their employees in relation to mandatory vaccinations in accordance with the law.

Lawful and reasonable direction

In Jessica Watson v National Jet System Ltd [2021] FWC 6182, the Fair Work Commission (FWC) found that a flight attendant who sought an exemption based on unsatisfactory medical grounds was not constructively dismissed and that it was lawful and reasonable for her employer to direct cabin crew to wear a mask while flying.

The employee claimed that she was forced to resign because her employer refused to accept medical certificates as proof of her entitlement to an exemption from wearing a mask. The employee worked for the National Jet Operation Services Pty Ltd which is part of the Qantas group. In response to the COVID-19 pandemic, Qantas mandated the wearing of face masks for cabin crew, subject to medical exemptions, in line with public health directives. The employee sought an exemption with support from her GP on the basis that wearing a face made her extremely anxious and she had trouble performing her job safely. It was not accepted that she had a medical condition which prevented her from wearing a mask, and the employee was given an opportunity to partake in further investigations to support this. However she did not and decided to resign.

It was held that the employer was entitled to make further enquiries regarding the employee’s medical conditions to ensure she was fit to work. The FWC held that the mask mandate was a lawful and reasonable direction in line with the public health directions and that employees are obligated to comply with such directions from their employer. In addition, the employer had a documented process for medical conditions. Therefore, the resignation was voluntary, and the employer had not engaged in any discriminatory or bullying conduct.

Employers should ensure that they are discharging their work health and safety obligations to their employees and others in accordance with public health orders applicable to their industry and that they have well- documented exemption processes.

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