In Krystle Giggs v St John Ambulance Western Australia Ltd [2022] FWC 1362 (2 June 2022)) the Fair Work Commission rejected Ms Giggs’ claim for unfair dismissal.
On 20 March 2020, the Visitors to Residential Aged Care Facilities Directions (the Directions) were issued by an emergency officer authorised by the Chief Health Officer under the Public Health Act 2016 (WA). Under those directions ‘entry to residential aged care facilities was restricted and in addition a person who was able to enter could then only enter the residential aged care facility if they had an up-to-date vaccine against influenza’ ([19]). Paramedics who were not vaccinated but who were responding to priority 1 or 2 emergencies would be allowed to enter residential aged care facilities, but they would not be permitted in less urgent cases. In order to ensure paramedics could attend to all manner of cases ‘SJA developed a policy designed to ensure it and its staff would comply with the Directions.’
Ms Giggs was advised on 26 April 2020, after a period off work, that she would be required to obtain the flu vaccination. She objected. What followed was letters, meetings and processes to consider her objections. On 9 August 2020, Ms Giggs formally applied for an exemption. The application was refused.
There were then ongoing processes where Ms Giggs was asked to show cause why her employment should not be terminated. Ultimately (at [83]-[84]):
SJA decided that given the Directions remained in effect for the foreseeable future and the applicant was still refusing the respondent’s direction to be vaccinated it was appropriate for her to be terminated on the grounds that the applicant could not fulfil the inherent requirements of her on-road role because she could not lawfully attend all the places a patient may be, and further that she had not obeyed SJA’s direction that she comply with SJA’s mandatorily influenza vaccination policy.
The decision was made to terminate the applicant’s employment. She was notified of this by letter dated 22 June 2021.
(That date was more than one year after she was first told of the requirement to have the vaccine and nearly one year before the case was determined in the Fair Work Commission.). Ms Giggs launched an application alleging unfair dismissal contrary to the Fair Work Act 2009 (Cth).
The Commission found that Ms Giggs ‘did not comply with the Mandatorily Influenza Vaccine Policy and did not obey her employer’s direction to do so.’ It then had to ‘consider whether the respondent’s direction to the applicant to comply with the policy was a lawful and reasonable direction’ ([103]-[104]). At [107] Commissioner Williams said:
There is no suggestion that the respondent’s direction to comply with the policy was unlawful. Considering all of the circumstances detailed above including the issuing of the Direction under the Public Health Act, the application of the Directions to work the ambulance paramedics commonly undertook and the manner in which ambulance paramedics work within the respondent’s operations I have no doubt that the respondent’s direction to the applicant was also reasonable.
Then the Commission had to decide whether the decision to terminate her employment was a reasonable response. It was held that it was. Ms Giggs had been given notice of the reason for her dismissal, had been given opportunities to respond and to show cause why she should not be dismissed, she was permitted to have support persons present when she wanted, and the respondent ambulance service had followed appropriate procedures. Further (at [119]-[120]):
The applicant was stood down on pay for a considerable number of months at considerable cost to the respondent. During all of this period she was non-compliant both with the Directions and the policy. At any time during these months the applicant could have reconsidered her choice and agreed to be vaccinated and so could have remain employed.
The respondent certainly did not rush to dismiss the applicant.
Commissioner Williams concluded (at [121]-[123]):
The applicant exercised her free will and chose not to receive the influenza vaccination. She did so in the full knowledge that she would consequently be dismissed.
The dismissal of the applicant was neither harsh, nor unjust nor was it unreasonable.
Mrs Giggs was not unfairly dismissed.
Discussion
In an earlier post (Requiring COVID vaccines for emergency workers (April 1, 2022) I said:
Where there is a valid public health order, an employer has no choice to comply and if that order requires that a certain class of workers are vaccinated then the employer cannot continue their employment if they refuse to get the vaccination.
This decision confirms that principle and the line of reasoning in the cases discussed in that earlier post. In another post (Challenging COVID restrictions – part 2 (April 23, 2020)) I wrote:
Again an individual may think the orders ‘go too far’ but that is not grounds to set them aside if the Minister held the necessary belief and the orders are such that it is not unreasonable to think they are necessary even if it could also be reasonable to think they are not. It is the Minister’s state of mind that is relevant and the fact that some people would have made a different decision does not mean that the Minister’s decision does not stand.
This case was not an application to set aside the relevant orders but a similar point can be made. Ms Giggs wanted to give evidence both before the Commission and the St John Ambulance exemptions panel, constituted by the St John Ambulance Medical Director, Dr Bailey and the Head of People Services, Ms Jackson.about the vaccine.
Dr Bailey’s evidence was that her … application was based on her personal wish not to be vaccinated against influenza because of her assessment of the science relating to efficacy and risks. ([67]).
Ms Jackson’s evidence ([68]) was:
… [Ms Giggs] was declining the influenza vaccine because she was not convinced of the vaccine’s efficacy in light of its risks to her personal safety. The applicant had said in her exemption application that she was open to being vaccinated, had been in the past, but did not want to have this particular
vaccine …
Before the Commission (at [85]):
The Applicant’s evidence explained at length her views regarding the Directions and sought to impugn the Directions based on her understanding of the law, viruses, vaccines and vaccinations, worker’s rights, risk assessment, ethical considerations and related matters.
Just as a person’s belief that the Minister, or authorised officer should not hold a necessary belief is no ground to set aside a public health order, so too the applicant’s personal view of the directions is not relevant. As the Commission said (at [87]) ‘What is relevant is that the Directions were the law at the time of the Applicants dismissal’. The applicant’s own assessment of the effectiveness of the vaccine, the law or other matters was irrelevant. She could not enter an aged care residential facility without the vaccination. It was that order that St John Ambulance had to comply with. Even if St John management thought the order went too far that would be beside the point. The order was made and ‘in the absence of a court ruling that the Directions were invalid’ both St John and ‘the Commission, in determining this application’ ([88]) had to apply that law and comply with that Direction.
This was not the forum to challenge the direction itself. St John had to comply. If she wanted to challenge the direction she need to seek orders against the Chief Health Officer as others have tried – see Challenging COVID restrictions – part 2 (April 23, 2020) and see also Talissa Siganto, ‘Queensland’s frontline workers begin series of legal challenges to COVID-19 vaccine mandate’ ABC News (Online) 30 May 2022.
I understand the matter of Kassam v Hazzard (discussed in that earlier post) is listed before the High Court of Australia on 12 August 2022. This is an application for Special Leave to Appeal. This is where the applicant has to convince one (or sometimes two) judges that the case raises matters of sufficient legal importance that it should go to a hearing before the bench of five or seven judges. It is possible that both the application for leave and the appeal itself are heard at the same time but it is unusual. It follows that on the 12th either leave will be granted and there will be a full hearing at some future date; or leave will be refused and that will be the end of the matter.
This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.
Australian Emergency Law 
How does a PHO or nursing home’s policy (or any rule for that matter) supersede the officer’s power to enter ‘any premises’ etc. afforded by Ambulance Service Act?
Section 38(1) of the Ambulance Services Act 1991 (Qld) says “An authorised officer, in providing ambulance services, may take any reasonable measures— (a) to protect persons from any danger or potential danger associated with an emergency situation…” Subsection 2 says “Without limiting the measures that may be taken for a purpose specified in subsection (1) (a) …, an authorised officer may, for that purpose— (a) enter any premises…” The power to enter premises set out in s 38 is not a general power to be used at any time for any reason. It is an emergency power.
In the context of the Visitors to Residential Aged Care Facilities Directions “Paramedics who were not vaccinated but who were responding to priority 1 or 2 emergencies would be allowed to enter residential aged care facilities, but they would not be permitted in less urgent cases.” Given the cases where paramedics were restricted where the non-emergency cases, s 38 would have no application (see also https://australianemergencylaw.com/2020/03/28/refusing-a-paramedic-access-due-to-covid-19-fears/).
Was this directly to Covid 19 or Influenza’s generally?
This was about an influenza vaccine, not a COVID-19 vaccine
I would be interested in a legal opinion as to whether SJA advised Ms Giggs that flu vaccinations were a prerequisite prior to employing her.. sans a public health order to fall back on, without an agreement prior to employing Ms Giggs, should SJA be able to mandate an invasive medical procedure or be dismissed?
Presumably a flu vaccination was not a requirement prior to employment, but for many paramedics being registered was not a pre-employment requirement, but laws and circumstances change. The point of the conclusion on these and other cases is that the vaccine is not ‘mandatory’ – no-one is going to tie anyone down and inject them – it’s a choice. But choices have costs and consequences – “The applicant exercised her free will and chose not to receive the influenza vaccination. She did so in the full knowledge that she would consequently be dismissed.” (See also https://australianemergencylaw.com/2020/04/20/mandatory-vaccination-for-qas-paramedics/)
What this article fails to mention is that SJA had a policy that allowed their staff attending less critical calls (priority 3 & 4) at a nursing home to request for the patient to be brought out to the ambulance and therefore negate the necessity for an unvaccinated person to enter the facility. Furthermore, other emergency service staff – WAPOL and WA Fire Fighters, were allowed to enter the facility no matter what the classification or priority of call without being vaccinated for influenza, so if law and policy weren’t breached how is the dismissal not unfair?
If the ‘article fails to mention … that SJA had a policy that allowed their staff attending less critical calls (priority 3 & 4) at a nursing home to request for the patient to be brought out to the ambulance and therefore negate the necessity for an unvaccinated person to enter the facility’ it’s because it was not raised in the case. That would have been a matter for Ms Griggs to raise as part of her case if it was thought relevant. And was it really the intention of the policy to stop unvaccinated staff entering the premises or to reduce the risk to vaccinated staff? The evidence was that there was a policy that all staff had to be vaccinated. At the end of the day though this was a report on the decision of the Commission, if these sorts of arguments were not put to the Commission then they woudl not be considered by it.