Case Law Update: COVID-19 Vaccination Exemptions

3 March 2022

The procedural fairness demonstrated by two employers has been recognised, in two recent decisions involving employees who had unsuccessfully sought exemptions from being vaccinated against COVID-19.

Edwards v Regal Cream Products Pty Ltd [2022] FWC 257

In the first case, an unvaccinated employee (Edwards) was dismissed in compliance with a Victorian Public Health Order that applied to his employer, Regal Cream Products (Bulla).

Bulla had provided its employees with considerable information, cash incentives and paid medical consultation to assist employees to come to an informed decision. When it was found that Edwards had provided an invalid medical exemption from his doctor, Bulla offered to pay for an appointment with an eligible independent medical specialist, which Edwards refused. The Employee was subsequently dismissed.

Commissioner O’Neill found that Bulla took all reasonable steps to ensure procedural fairness in the disciplinary process, considering it “difficult to fault its approach”. The Commissioner held that Bulla took a consistent approach with all employees who chose not to be vaccinated and did not have a valid medical exemption. Furthermore, the employee was provided ample opportunity to respond to employer concerns.

Colebourne v State of Queensland (Queensland Police Service) [2022] QIRC 40

In this case, an employee of Queensland Police Service (QPS) appealed a decision to refuse an exemption by an internal Vaccine Exemption Committee, following the introduction of a vaccine mandate for all QPS employees. The employee had sought an exemption on the ground of ‘other exceptional circumstances’, including her family’s strongly held belief on COVID-19 vaccines, as well as the existence of current proceedings in relation to the validity of mandates.

In the appeal, the employee had contended that young people like herself were ‘unlikely to suffer serious health effects’ from COVID-19, but were at ‘high risk from adverse reactions from COVID vaccines’, and that the QPS had not done anything to manage the risk. The employee further contended that she was denied procedural fairness in that she was not provided an opportunity to respond, answer questions or provide additional information.

The appeal was dismissed, with the Commission ruling the refusal for an exemption as ‘fair and reasonable’. Commissioner Pidgeon held that only some of the employee’s reasons could be described as relating to the employee as an individual, and a number of her reasons were based off a general opinion on COVID-19.  Further, the employee ‘provided no specific medical contraindications, religious or other exceptional reasons to support an exemption application’. The Commissioner also considered the refusal to grant an exemption was procedurally fair, as the relevant vaccination mandate did not grant the employee an opportunity to respond, answer questions or provide additional information following the exemption decision.

EMA Legal can assist employers with all queries in relation to COVID-19 vaccinations in the workplace.

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