Comfort for employers after FWC finds that requiring COVID-19 vaccination information is not a breach of the Privacy Act 1988 (Cth)
On 20 January 2022, the Fair Work Commission (FWC) upheld a NSW employer’s direction to its employees to provide it with their current COVID-19 vaccination status: Aleisha Jean Shepheard v Calvary Health Care T/A Little Company Of Mary Health Care Limited  FWC 92.
The FWC also held that the employer’s direction/request for its employees’ sensitive medical information (being their vaccination status) was not in breach of the Information Privacy Principles or the Privacy Act 1988 (Cth).
One of the employees had been dismissed for refusing to provide her personal vaccination status. She had argued that the employer could not request her personal vaccination status.
The employer was bound by the NSW Public Health Orders (PHO) requiring all healthcare and aged care workers to be vaccinated against COVID-19 by 17 September 2021. The employee wrote to the employer on several occasions in the lead up to her dismissal:
- asking the employer to “provide a copy of the law that evidences Covid 19 Vaccines are mandatory? I can only find a public health order, which has not yet been approved by Parliament as a law and is therefore a recommendation, and an offer, but not legally binding”;
- asserting that the employer’s request for medical information from employees was “in breach of an individual’s right to privacy under the Privacy Act 1988”;
- raising concerns about the existence of any insurance cover in relation to risks associated with taking a COVID-19 vaccine;
- raising issues associated with the Commonwealth Constitution, the Biosecurity Act 2015, Article 6 of the UNESCO statement on Bioethics and Human Rights, Article 1 of the Nuremburg Code, and the Australian Government’s Immunisation Handbook; and
- asking questions about a range of matters, including whether the employer had sought advice “regarding the risk to anyone subject to a mandated Covid-19 vaccine, and that the Public Health Order directive is lawful”.
The FWC held that the employer was within its rights to request its employees’ vaccination status, noting the exemption found under Australian Privacy Principle (APP) 3.4, which allows for the collection of personal information where required under an Act of the Commonwealth, State or Territory. The FWC confirmed that, as the PHO was made under the Public Health Act 2010 (NSW), it amounted to an Act of a State.
The FWC also found that, even if the employer had been found to have breached the APPs of the Privacy Act, on balance the dismissal would not have been harsh, unjust or unreasonable.
Another issue addressed by the FWC was that there was no reasonable basis to require the employer to stand the employee down indefinitely to “wait out” the PHO. The FWC stated that as the PHO was not ruled invalid by the NSW Supreme Court and the Court of Appeal in the high-profile case of Kassam v Hazzard; Henry v Hazzard  NSWCA 299, there would not have been any utility in standing the employee down for an indefinite period.
The FWC also confirmed that, absent any PHO covering the parties, its finding would still be the same, as the employer had introduced a mandatory vaccination policy to comply with its duties under the Work Health and Safety Act 2011 (NSW).
Despite the employee alleging that her employer “used pressure, coercion, threats or intimidation against her”, the FWC held that the employer was entitled to ask employees for their vaccination status under the PHO and the request was made respectfully. The FWC confirmed it was incumbent on the employer to explain the consequences to employees of not complying with the PHO. Providing such information did not constitute undue pressure, coercion, intimidation or a threat.
Arguably, the most important takeaway for employers from this decision was the FWC’s comment that: “There was no requirement for Calvary to go further and respond to every reason why Ms Shepheard was contending that the Public Health Order was, in her opinion, invalid and unlawful.”
This decision, whilst it relates to NSW Public Health Orders, will provide comfort to employers that, where they follow all the requirements of Health Directions or Public Health Orders s, and provide employees with procedural fairness, they will be in a strong position to defend any unfair dismissal claim.
We have a significant amount of experience in successfully defending employers in the Fair Work Commission against such claims. Gilchrist Connell operates a national practice which can quickly respond to issues faced by employers in managing such claims. For more information please contact our Workplace team.