This case also arose in the context of the residential aged care sector.
Ms Shepheard was employed by Calvary Health Care T/A Little Company of Mary Health Care Limited (Calvary) as a part time care service employee in NSW. Her primary duty was to provide personal care assistance to aged care residents, who were predominantly deemed as ‘high care’ residents.
On 26 August 2021, the NSW Minister for Health and Medical Research issued the Public Health (COVID-19 Aged Care Facilities) Order 2021 (Public Health Order) which required, among other things, that an employee of an operator of an aged care facility not enter the premises of an aged care facility unless the employee had at least one dose of the COVID-19 vaccine from 17 September 2021.
Calvary communicated with its employees regarding the Public Health Order, including in what circumstances employees may be medically exempt from receiving the vaccine.
Ms Shepheard did not provide Calvary with any evidence that she had received a COVID-19 vaccine, nor did she provide evidence to support a medical exemption under the Public Health Order.
Instead, Ms Shepheard wrote to Calvary, raising a number of largely irrelevant concerns and argued, among other things, that public health orders are not ‘legally binding’, citing the Commonwealth Constitution, Article 1 of the Nuremburg Code and other international human rights laws.
Due to Ms Shepheard’s failure to comply with the Public Health Order, Calvary terminated her employment effective 15 September 2021. Following this, Ms Shepheard made an unfair dismissal application in the FWC, challenging her dismissal and also asserting that she was dismissed because she exercised what she considered to be a right to privacy under the Privacy Act 1988 (Cth) in relation to her medical information, and that Calvary unreasonably required her consent to collect her sensitive vaccination or medical information.
The FWC held that if Calvary had permitted Ms Shepheard to enter her workplace on or after 17 September 2021, it would have been in breach of the Public Health Order and its accreditation as an aged care provider may have been at risk.
The FWC held that Calvary had a “sound, defensible and well founded reason to terminate Ms Shepheard’s employment”.
In reaching this decision, the FWC addressed Ms Shepheard’s assertions in respect to privacy of her medical information and stated that even if Calvary had been required by privacy laws to obtain the consent of Ms Shepheard to the collection of sensitive information from her (i.e. her vaccination status) and it had not obtained such consent, the dismissal would not be deemed harsh, unjust or unreasonable.
Due to the Public Health Orders, which were binding on both parties, the FWC held that it is not unfair for an employer to bring an employment relationship to an end when an employee, through no fault of the employer, has no capacity to work for the employer at the time of the dismissal and into the foreseeable future, and the employee is afforded procedural fairness before a decision is made to terminate the employment relationship.