A consultant endocrinologist has won an unfair dismissal case brought by a former receptionist who was terminated for failing to receive a COVID-19 vaccination in line with public health orders.
Based in Newcastle, NSW, the endocrinologist first advised the medical secretary at his private practice about the likely need to be vaccinated back in October 2021, months before NSW public orders mandating all health workers receive a vaccine came into effect.
They then forwarded the employee a NSW Health press release which specified that administrative staff could not be employed in private health settings from 31 January without at least at least one dose of a vaccine or a contraindication certificate.
However, the receptionist refused, saying she could not give informed consent given the available vaccines were only “provisionally approved as a clinical trial and had not undergone safeguard trials required of vaccines generally”.
Saying she was concerned about side effects, the staff member said there were “reports of ingredients in the makeup of the vaccines that have cause for alarm in that they are known toxins and the studies to ensure the safety of these harmful substances have not been carried out in the push for early release”.
Eventually dismissed from employment at the end of January 2022, she took her case to the Fair Work Commission seeking either compensation or reinstatement in her position.
In evidence, she asserted that “COVID-19 vaccines contain parts of unborn babies” and taking such a vaccine was against her Christian faith.
She also argued that it was a privacy violation for an employer to require proof of vaccination which was a private medical matter.
The commission heard the doctor had taken pains to educate his staff member about the vaccination requirements, discussing them with her on multiple occasions.
In recognition of her “obvious distress”, he also gave her final day off from work without drawing down her leave entitlements, which he paid the following month.
In findings handed down last week, the Fair Work Commission dismissed the bulk of her legal arguments out of hand, finding there was nothing in any of the legislation she cited which prevented workers being terminated for failing to meet public health orders.
The commission also denied the receptionist had been “coerced” to take a vaccine, saying she had been offered a choice and made her decision with her eyes open.
It ruled that the dismissal “was not harsh, unjust or unreasonable”, and that the specialist had afforded procedural fairness to the secretary prior to bringing her employment to an end.
It said the doctor was legally obliged to comply with the Public Health Order, and the Commission did not have jurisdiction to determine claims on constitutional validity, although the public health orders had been upheld by the NSW Court of Appeal.
“There was in effect a new regulatory requirement that attached to [the receptionist’s] job,” it said.
“She could have decided to take the necessary steps to meet the requirement. She decided not to do so.”
With her job unable to be performed from home and no alternative duties available for her to undertake, there was also no option of changing her role to accommodate her refusal, the commission added.
“For all these reasons, [the endocrinologist] had a sound, defensible and well founded reason to terminate [her] employment.”