By Calvin Gnech, Criminal Lawyer and Legal Practice Director at Gnech and Associates
25 October 2021
Introduction
The COVID-19 epidemic has had catastrophic consequences for the world over. The world is now faced with forging a path forward back towards normality. The proposed path to reach this goal rests entirely with immunisation. This has led to resistance from advocates of human rights, those who are pro-choice and people opposing vaccination (anti-vaxers). In response we have seen a movement towards mandatory vaccination regimes being introduced by employers and some overseas governments.
Mandatory Vaccinations and Employment
Close to home we have seen organisations such as Alliance Airlines, Virgin Airlines, Woolworths, Coles and more introduce mandatory vaccination regimes for workers. Residential aged care workers, law enforcement and the medical profession have also had mandatory vaccination regimes introduced for employees. Further, a mandatory vaccination clause is now commonly being included in many employment contracts, private and public.
We have seen New Zealand Breakers basketball player Tai Webster released from his contract because of his refusal to be COVID-19 vaccinated. The Australian Football League (AFL) has mandated that all players and staff must be COVID-19 vaccinated by mid-February 2022 otherwise they will be barred from playing and training. The National Rugby League (NRL), at this stage have not gone down a mandatory vaccination regime path, however it has been reported in the media that a number of NRL clubs are pushing for the right to terminate a players employment contract if they do not get vaccinated.
It will not be surprising if proof of vaccination becomes a usual requirement for employment.
Vaccinations and Freedoms
The practical effect for businesses is they have to engage in practices which protect their product from COVID-19 consequences. In time, it appears the government will move towards the fully vaccinated having far more freedoms then those who are not. As we have seen announced recently, those who are vaccinated are going to be free to travel through state boarders however those who are not vaccinate will be refused. Perhaps moving forward, those who are vaccinated will be allowed to go to public events such as concerts, the movies and the like and those who are not will be refused. Nobody know exactly where we are heading in this space but these possibilities are not far fetched by any means.
Choice and Consequences
So, the question being raised is, ‘Can the employer, and/or the government, force a person to be immunised?’. To be clear, at this stage no one is being forced to be immunised. It remains a choice for all if they are to be immunised or not. However if you chose not to, there are consequences such as termination of employment. That is a choice individuals must make. Courts around the world, including here in Australia, are ruling that mandatory vaccinations regimes are legal.
United States
Of interest, dating back to 1905 the US Supreme Court in the case of Jacobson v Massachusetts upheld the constitutionality of mandatory smallpox vaccination programs to preserve public health. Only last week the US Supreme Court again rejected a legal claim by health workers in Portland who were objecting to having the COVID-19 vaccine on religious grounds. Similar legal claims have been unsuccessful before the US Supreme Court for New York teachers and Indiana University staff and students.
New Zealand
In New Zealand the court structure is different to Australian where their Supreme Court is the countries highest court. The Court of Appeal sits below that and the High Court below that. On 4 May 2020 the New Zealand Court of Appeal in Nottingham v Ardern dismissed an appeal alleging the New Zealand Government’s response to the COVID-19 epidemic subjected people to unlawful detention. This unsuccessful application attempted to rely upon aspects of the Habeas Corpus Act 2001(NZ).
On 24 September 2021 the New Zealand High Court (third in the court hierarchy in NZ) determined the case of GF v Minister of COVID-19 Response & Ors which challenged the lawfulness of the COVID-19 Public Health Directions for some workers to be immunised. The applicant was previously an employee of the New Zealand Customs Service but had her employment terminated as a result of the implementation of the COVID-19 Public Health Response (Vaccinations) Order 2021 (the Vaccinations Order). She challenged the termination of her employment relationship in the Employment Relations Authority (the Authority). However, she was unable to convince the Authority that her dismissal was unjustified. The Authority has no jurisdiction to declare legislation invalid. Consequently, the applicant commenced unsuccessful judicial review proceedings in this Court challenging the lawfulness of the Vaccinations Order.
Australia
The first case in Australia which was asked to consider the vaccination issue was before the Fair Work Commission (FWC) and was in relation to the influenza vaccine rather than COVID-19. Earlier this year the FWC heard and determined the case of Maria Corazon Glover v Ozcare. Ms Glover worked for Ozcare as a care assistant. She was working with the elderly. Ozcare implemented a mandatory immunisation policy for all employees to be vaccinated for influenza. Ms Glover refused to comply with the policy because as a child she had experienced an anaphylactic reaction to the influenza vaccination. Ms Glover had her employment terminated and commenced proceedings in the FWC. The FWC found Ozcare had a lawful basis to order mandatory immunisation of staff. The FWC found the direction was reasonable for the aged care industry to protect its clients and employees against health risks such as influenza. The FWC dismissed Ms Glover’s application on the basis the termination of her employment was not hash or unfair.
The second case was also before the FWC earlier this year in the case of Jennifer Kimber v Sapphire Coast Community Aged Care Ltd. This case again focused on the influenza vaccination rather than COVID -19. It is not dissimilar to the Glover Case. Ms Kimber was a receptionist at one of the aged care centres owned by the respondent. The NSW Health Minister had implemented public health orders prohibiting any person from entering or remaining an aged care facility without an influenza vaccine. Ms Kimber refused on the basis she had suffered an allergic skin reaction to the influenza vaccine in 2016. Ms Kimber was stood down and dismissed. The respondent would have received fines if Ms Kimber was allowed on the work premises. The FWC again found the dismissal was not hash or unfair.
The third, Kassam v Hazzard; Henry v Hazzard was determined in the New South Wales Supreme Court on 15 October 2021. This case alleged the public health directions were invalid. The applicants presented varied arguments to the court with 11 different grounds argued. The grounds included the direction was invalid, unreasonable, took into account irrelevant considerations, lacked natural justice, was unconstitutional and more. All grounds were rejected by the court. The public health directions were found to be lawful.
The fourth case, Brasell-Dellow & Ors v State of Queensland, (Queensland Police Service), a Queensland case, was determined on 22 October 2021 by the Full Bench of the Queensland Industrial Relations Commission (QIRC).
The Commissioner of Police ordered all staff of the Queensland Police Service (QPS), sworn or otherwise, to be vaccinated with one of the three approved vaccines currently used in Australia against COVID-19. The direction was comprehensive, explaining the reasons why the order was being given as well as providing provisions to ask for an exemption.
This application was brought by a group of serving Queensland Police officers and staff members arguing the mandatory vaccination regime ordered by the Commissioner of Police was of no effect. The applicants argued on three grounds. The first and second grounds alleged there was a failure to consult by the Commissioner as required by the police award and the Workplace Health and Safety Act 2011. The Full Bench found there was substantial consultation undertaken by the QPS with the relevant trade unions representing staff and officers.
The third ground, was that there was no power for the Commissioner to make the direction. The Full Bench, in refusing this ground, confirmed the Commissioner of Police has broad powers to make directions to maintain a disciplined police force and to ensure she can fulfil her prescribed responsibilities under the Police Service Administration Act.
The Full Bench dismissed both applications.
Other Queensland Cases
There are a further two cases which have been filed in the Queensland Supreme Court challenging the mandatory vaccination order of the Queensland Police Commissioner which are yet to be determined.
Conclusion
The outcome of the determined cases so far are hardly surprising. The common law surrounding the ordinary relationship of employer and employee is important and well established. Such a relationship imports ‘implied duties of loyalty, honesty, confidentiality and mutual trust’. The implied duties include a requirement for employees to obey the reasonable and lawful instructions of their employer, otherwise known as ‘the duty of obedience’, and a duty to exercise due care and skill when carrying out their duties.
Arguments around human rights must also be balanced against the rights of those to be protected. The courts are likely to continue to find in favour of community protection at large and therefore in favour of immunisation. There is a significant distinction which must be made, at least in Australia, and that is people are not being forced to immunise, however if a person makes a decision not to immunise then there are consequences that person may have to deal with. One of those consequences includes that of his or her continued employment.
