Australian workers who refuse to be vaccinated against Covid can be legally sacked while bosses face being sued for negligence if staff get sick, leading lawyers say.
Only workers in a handful of frontline industries are required by law to be vaccinated as a condition of entering the workplace.
But some employers are going beyond government mandates and requiring their staff to have had two immunisation doses to be allowed back into the office.
Fruit cannery SPC Ardmona in August became Australia’s first employer to require their staff, at Shepparton in northern Victoria, to be fully vaccinated.
Mining giant BHP last week announced that from January 31, unvaccinated staff, contractors and visitors would be banned from entering its Australian work sites.
Hairdressers and other beauty services are just some of the businesses who need to ensure staff are vaccinated to open under NSW rules, and those soon to be introduced in Victoria (pictured, a Sydney hairdresser preparing for lockdown to end)
All staff and customers of newly-opened hospitality venues in New South Wales need to show they are fully-vaccinated (pictured, customers using QR code log-ins in Sydney’s The Rocks on Tuesday)
Professional services firm PriceWaterhouseCoopers announced that from early November, staff in Sydney, Melbourne, Canberra and Newcastle would need to be fully vaccinated to return to the office or attend the workplace Christmas party.
Media giant News Corp, the owner of Sky News, has since September 19 required staff at its Chullora printing plant in western Sydney to be fully vaccinated.
Journalists wishing to return to the office by January 31 will have to be fully vaccinated while frontline editorial staff in New South Wales and Victoria will need to provide proof of being double jabbed from November 19.
Employment lawyer Joydeep Hor, the founder and managing principal of People + Culture Strategies, said a boss could legally sack an office worker for refusing to get vaccinated, even if it wasn’t required by law for their specific industry.
Australians who refuse to be vaccinated against Covid can be legally sacked while bosses face being sued for negligence if staff get sick, leading lawyers say (pictured is a woman receiving a Pfizer vaccine from south-west Sydney doctor Dr Jamal Rifi)
Constructions workers (pictured) also have to be vaccinated to work in Victoria – a move which prompted furious protest
‘At some point, the employers will have a right if they choose to exercise it to say, ‘Whichever way you look at it, it’s probably going to be a condition of your employment that you are vaccinated’,’ he told Daily Mail Australia.
Mr Hor, who has 25 years’ experience advising employers, said bosses who mandated vaccinations as a condition of work would be likely to have a win in the Fair Work Commission if a staff member brought an unfair dismissal case.
‘There is a real argument that this could well turn into, essentially, a lawyers’ picnic.’ – Bill Potts, criminal lawyer
‘The decisions that have looked at that issue, have fallen in favour of the employer,’ he said.
‘That will continue to be the case, I just think that the overall work health and safety obligations will be seen as paramount by the courts and most employers will be successful in defending any challenge by an employee.’
Trade unions are also backing moves for staff to be fully vaccinated to come to work.
Criminal lawyer Bill Potts, the Brisbane-based founding director of litigation firm Potts Lawyers, said workplaces face being sued for negligence or worker’s compensation, under state law, if a staff member caught Covid in the office.
But some employers are going beyond government mandates and requiring their staff to have had two immunisation doses to be allowed back into the office. Mining giant BHP last week announced that from January 31, unvaccinated staff, contractors and visitors would be banned from entering its Australian work sites (pictured is a BHP coal mine at Moranbah in central Queensland)
COVID WORK Q&A
Can someone be sacked for refusing to be fully vaccinated?
Yes. Lawyers Joydeep Hor and Bill Potts agreed an employer would be likely to win an unfair dismissal claim in the Fair Work Commission, as courts sided with bosses who put health and safety first
Can an employer be sued if someone gets sick from Covid at work?
Yes. A staff member would have to prove their boss was negligent about the known threat of Covid
‘If you can show that there is nexus between the danger to you, then there can be a litigation result,’ Mr Pott said
‘Negligence is the foreseeability of a potential harm’
How can employers defend themselves in court?
By demonstrating they they taken reasonable steps to mitigate the risk of Covid from social distancing to face masks and vaccination checks
Can compulsory vaccinations be challenged in court?
Yes. An opponent of such a measure would have to prove rapid antigen tests, social distancing, face masks and screens were enough to mitigate the risk of catching Covid. The Queensland Police Service is facing a legal challenge
‘The employer may well find themselves liable for WorkCover,’ he told Daily Mail Australia.
‘For example, if I allow a client into my business who’s either unvaccinated and I’m exposed to them for quite a substantial period of time, my employees can say, ‘You didn’t make proper enquiries, you didn’t get proof of vaccination, you’ve exposed me to danger, I’ve now got Covid and I’m suing you for exposing me to that risk’.
‘There is a real argument that this could well turn into, essentially, a lawyers’ picnic.
‘All business should review very carefully the safety of their employees.’
Mr Potts said employers could defend themselves in court by proving they had taken appropriate and reasonable measures to mitigate the risk of Covid – from social distancing to face masks, plastic screens and vaccination checks – to argue the exposure site was outside the office.
‘It’s very difficult, even with genomic tracing, to say exactly where the source may be,’ he said.
‘All court cases come down to proof and the nature of Covid is that it spreads through the air so a person in the workplace may get it but did they get it at work?
‘Did they get it at the supermarket?’
But bosses can’t get sued on the grounds staff who are fully vaccinated don’t feel safe in the presence of unvaccinated colleagues.
‘The law does not concern itself with feelings, whether a person feels uncomfortable or feels that they would prefer to deal with people who are tall, short, fat, have red hair or whatever,’ Mr Potts said.
Mr Hor said it was impractical for employees not to be fully vaccinated considering staff often had to visit other workplaces for their job, which created legal issues in itself.
‘It ends up getting to that point where people are going to find it hard to be able to do their jobs, or aspects of their jobs, if they aren’t vaccinated,’ he said.
Professional services firm PriceWaterhouseCoopers announced that from early November, staff in Sydney, Melbourne, Canberra and Newcastle would need to be fully vaccinated to return to the office or attend the workplace Christmas party (pictured are a man and woman in Sydney dressed up for a Christmas party)
Employment lawyer Joydeep Hor, the founder and managing principle of People + Culture Strategies, said a boss could legally sack an office worker for refusing to get vaccinated, even if it wasn’t required by law for their specific industry
Employees who cite medical reasons to refuse a vaccine can continue to work from home, but valid cases are very few.
‘It’s not a pleasant issue. What I’m advising my employer clients is they should be working with those individuals what the basis for the objection is and give them time – it’s an important decision,’ Mr Hor said.
The Media Entertainment and Arts Alliance, the trade union for journalists, said that while it backed compulsory workplace vaccinations, it would still represent conscientious objectors.
‘If you object to being vaccinated on principle, MEAA will professionally and respectfully represent your interests,’ it said in a staff bulletin.
‘We know that all cases have to be dealt with on their own facts.
‘You should contact MEAA for assistance if you think a direction to be vaccinated is unacceptable and/or compromises your welfare.’
Joydeep Hor, who has 25 years’ experience advising employers, said bosses who mandated vaccinations as a condition of work would be likely to have a win in the Fair Work Commission if a staff member brought an unfair dismissal case (pictured is the industrial umpire building in Melbourne)
In NSW, workers in the aged care, education, transport from October and November will be required to be fully vaccinated.
Hairdressers, beauticians, masseurs, gym and retail staff must be fully vaccinated along with their customers, as part of the state’s end to a 106-day lockdown.
Cafe, restaurant and pub patrons will have to confirm their vaccination status by showing their Medicare app, which will later this month be integrated into a Service NSW app.
Victoria will require 37 types of workers, including public servants, to have received one dose by October 22 and by double vaccinated by November 26, unless they have a medical exemption, if they want to return to the office.
While bosses face legal challenges if someone gets Covid at work, they are also being taken to court if they put in safety measures.
In Queensland, Police Commissioner Katarina Carroll is being challenged in the Supreme Court after she mandated both frontline officers and civilian staff be fully vaccinated or face suspension or dismissal.
‘At the moment, this is a significant grey area,’ Mr Potts said.
‘If the risk is minimal – or can be properly mitigated by testing, mask wearing, by social distancing, by putting up screens – there is an argument at least that people cannot be forced to, as part of a condition of their employment, to be vaccinated.’
In Queensland, Police Commissioner Katarina Carroll is being challenged in the Supreme Court after she mandated both frontline officers and civilian staff be fully vaccinated or face suspension or dismissal
VICTORIA’S LONG LIST OF JOBS REQUIRING DOUBLE VACCINATION BY NOVEMBER 26 TO BE AT WORK
Agriculture and forestry workers
Ancillary, support and welfare workers
Creative arts workers
Emergency service workers
Entertainment and function workers
Higher education workers
Justice service centre workers
Meat and seafood processing workers
Media and film production workers
Physical recreation workers
Ports and freight workers
Professional sports, high-performance sports or racing person
Professional services workers
Public sector employees
Real estate workers
Repair and maintenance workers
Science and technology workers
Social and community service workers
Utilities and urban workers
Veterinary and pet/animal care workers
Workers in residential aged care facilities
Workers at construction sites
Workers in healthcare settings
Workers at school, childcare and early education services (plus outside school hours care services)