The Case

Shepheard v Calvary Health Care T/A Little Company of Mary Health Care Limited (2022)

During 2021, Calvary Health Care, an aged-care facility, implemented a vaccination policy to reflect the public health order preventing aged-care employees from working if they hadn’t received a COVID-19 vaccination. The public health order also required Calvary Health Care to take reasonable steps to ensure employees complied with the order, which included the possibility of providing evidence of vaccination or an approved certificate to support a medical exemption.

Ms Shepheard did not provide any evidence of vaccination or a medical exemption. Rather, Ms Shepheard claimed that such a request breached her privacy under the Privacy Act 1988 (Cth) (Privacy Act).

Calvary Health Care dismissed Ms Shepheard for failing to provide evidence of vaccination or an approved certificate to support a medical exemption. Ms Shepheard commenced unfair dismissal proceedings in the Fair Work Commission (FWC).

The Verdict

The FWC held:

• failure to comply with the public health order was a valid reason for the dismissal;
• the Privacy Act contains exceptions to the collection of sensitive information when it is required by or under an Australian law;
• Ms Shepheard could not perform work without complying with the public health order requirements; and
• the application for unfair dismissal was dismissed.

The Lessons

Many employers have introduced vaccination policies to comply with state, territory and Commonwealth public health orders. An employee refusing to comply with a public health order or policy based on such an order may constitute a valid reason for dismissal. Of course, any employers collecting such information must comply with the Privacy Act’s requirements with respect to use, storage and disclosure of personal information.

Please note: Case law is reported as correct and current at time of publishing. Be aware that cases in lower courts may be appealed and decisions subsequently overturned.