“She was not forced to do anything”: Fair Work’s scathing rebuke of vaccine-hesitant worker
A Victorian dietitian who refused to provide her vaccine status has lost her bid to have her dismissal overturned at her workplace of more than a decade.
A Victorian dietitian who refused to provide her vaccine status has lost her bid to have her dismissal overturned at her workplace of more than a decade.
Isabella Stevens was employed at Epworth Health in Melbourne when mandates were introduced in October 2021 stipulating all healthcare workers be vaccinated against COVID-19.
After an email was sent to all staff about the deadline, Stevens wrote to Epworth Richmond’s executive general manager Simon Benedict to argue she shouldn’t have to provide her vaccine status — while also casting doubt on the safety of COVID-19 vaccines.
But Benedict replied that it wasn’t up for discussion — it was a legally binding direction from the government, and penalties applied if Epworth didn’t follow it.
He also warned management was legally bound to block access to the premises after that date if a staffer had not provided either their vaccination or a valid exception.
The communication between the pair heated up — Stevens, who had taken work off at the time, pointed to the Privacy Act 1988 in refusing to provide her vaccination status.
Benedict’s hands were tied. He told her it wouldn’t be lawful for her to come into work, meaning she wasn’t fulfilling the requirements of the role. She was sacked.
Stevens took it to the Fair Work Commission, where she contended that the requirement for her to be vaccinated as a condition of her ongoing employment was, in essence, forcing her to participate in a “medical trial procedure” without alternatives — she argued that was contrary to the Victorian Mental Health Act 2014.
She provided various reports and articles that cast doubt on the efficacy or safety of COVID-19 vaccines — but no expert evidence.
‘She did have an alternative’
Fair Work’s deputy president Alan Colman waved Stevens’s arguments away.
“I reject the contention that Epworth was forcing Ms Stevens to participate in a ‘medical trial procedure’. She was not forced to do anything. And the rollout of COVID-19 vaccinations is not a trial,” Colman said in his findings.
“It is not correct to say the employee had no alternative but to become vaccinated. She did have an alternative. It was the alternative that she decided to choose.”
Colman did acknowledge, however, that it would’ve been a “very difficult choice” for Stevens, because the alternative involved her legal exclusion from her job.
Stevens also argued she’d been the subject of adverse action, coercion, undue influence, misrepresentations and discrimination contrary to the Fair Work Act and that her ‘right to work’ under the International Covenant on Economic, Social and Cultural Rights (ICESCR) had been violated.
But, Colman contended, “international conventions have domestic effect in Australia only to the extent that they have been incorporated into legislation”.
“There is no general ‘right to work’ in Australia, regardless of what the ICESCR may say about the matter,” he said.
The commission also heard from Richard Stevens, who stated, as a “doctor” he had seen many “vaccine injured clients”, though Epworth had informed the commission he was an osteopath rather than an immunology expert.
Fair Work not convinced
Ultimately it was not enough to convince Colman, who stated in his findings “in my view, Epworth had a valid reason to dismiss Ms Stevens”.
“It was one related to her capacity to perform her role. Ms Stevens is entitled to her opinions about the efficacy and safety of the COVID-19 vaccines.
“Ms Stevens was also within her rights to decline to become vaccinated or to provide Epworth with the information it requested from her.
“But her choices had the inevitable consequence that Ms Stevens rendered herself unable to perform her job.”
Hall & Wilcox partner Fay Calderone says her team have told clients time and time again that, where public health orders are in place, “vaccination is an inherent requirement of the position”.
Quite simply, she says, “no jab, no job subject to a medical contraindication under the legislation”.
But it’s not as easy as just showing an employee holding out their vaccine status the door, Calderone warns.
“Employers must of course afford employees procedural fairness in any process leading up to the termination of employment.”
However, employers can be “further emboldened” by yet another Fair Work decision that upholds the termination of an employee refusing vaccination as a valid reason.
“Ms Steven’s dismissal was not harsh, unjust or unreasonable, and that it was therefore not unfair. The application is dismissed,” Colman concluded.
