COVID, Privacy and Unfair Dismissal- the Fair Work Commission navigates the muddy waters
Posted on February 09, 2022
COVID, Privacy and Unfair Dismissal- the Fair Work Commission navigates the muddy waters
In the recent decision of Aleisha Jean Shepheard v Calvary Health Care T/A Little Company of Mary Health Care Limited [2022] FWC 92, the Fair Work Commission (FWC) has upheld the dismissal of a residential aged care worker following her failure to comply with the requirement that she provide proof of vaccination against COVID-19 in accordance with a Public Health Order. The FWC also held that the disclosure of medical information (being her vaccination status) to her employer was not a breach of the Privacy Act 1988 (Cth) (Privacy Act).
Facts
The employee was a part time Care Service Employee at St Joseph’s Retirement Community, a residential aged care facility operated by Calvary in NSW, where her primary duties was to provide direct care to aged care residents.
On 26 August 2021, the Public Health (COVID-19 Aged Care Facilities) Order 2021 (PHO) was introduced which required, among other things, that an aged care facility worker not enter or remain on the premises of an aged care facility unless the employee was vaccinated against COVID-19 by 17 September 2021. A person subject to this requirement was required to provide vaccination evidence if required by the operator of the facility. The PHO contained a number of express exemptions including that the requirements do not apply to a person who has a medical contraindication and is able to provide evidence of this.
Accordingly, the employer and worker were both bound by the PHO. The employer also introduced a Residential Aged Care – Mandatory COVID-19 Vaccination Policy on 22 July 2021 which reflected the requirements of the PHO. The employee was dismissed for refusing to provide her vaccination status, claiming that the employer’s request was in breach of the Privacy Act and that the PHO was unlawful, among other things.
Key findings
The FWC held that the employee’s dismissal was not harsh, unjust or unreasonable and that the employer had a valid reason for dismissal and had afforded procedural fairness to the employee before making a decision to terminate her employment. The FWC noting that:
Calvary [the employer] was required to comply with the Public Health Order. Ms Shepheard’s [the employee] decision not to provide Calvary with any information about any medical condition or other relevant matter meant that Ms Shepheard was not exempt from the Public Health Order. The effect of the Public Health Order was that Ms Shepheard was unable to undertake her work at St Joseph’s from 9am on 17 September 2021.
The FWC held that the employer’s request for the employee’s vaccination status was not in breach of the Privacy Act, referring to the exemption under Australian Privacy Principle (APP) 3.4 which allows for the collection of personal information without consent where required under an Act of the Commonwealth, State or Territory. As the PHO was made under the Public Health Act 2010 (NSW) the exemption applied to the employer and the employee.
The FWC noted that even if it was found that the employer had breached the APPs and required consent, it would not alter the conclusion that the dismissal was not harsh, unjust or unreasonable.
In response to the Applicant’s assertion that Calvary could have stood her down on unpaid leave until the PHO expired, the FWC considered that there would be no real utility in doing this in circumstances where the absence of a PHO would not have altered the employer’s obligation to take reasonable steps to ensure the health and safety of employees as well as the vulnerable residents. The employer’s vaccination policy had been introduced to address those risks. The FWC stated that the Applicant’s argument that the PHO was unlawful and invalid had already been disposed of by the New South Wales Court of Appeal in Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 299.
The FWC did not accept claims that the Applicant was treated in a disrespectful manner or that Calvary used pressure, coercion, threats or intimidation against her, as they were authorized by the PHO to ask employees to provide vaccination evidence or an exemption. It was also important for Calvary to explain the consequences of non-compliance with the PHO and doing so did not constitute undue pressure, coercion, intimidation or a threat. The FWC also confirmed that there was no requirement for Calvary to respond to every reason raised by the Applicant as to why she contended the PHO was invalid and unlawful.
This is an important decision for employers and employees who are covered by a PHO or public health direction in relation to unfair dismissal claims. This decision also confirms that requiring an employee to disclose their vaccination status in accordance with a PHO will not be a breach of the Privacy Act.
Please contact our workplace relations team if you require assistance.
