In order to provide as much value as possible to our members, associate members and guests we make a strong effort to understand key cases which may have HR and workplace relations implications that in turn my impact our clients business.

The 4th of November ma\rked the first day of another Supreme Court case against the NSW Health minister challenging the reasonableness of the NSW Health Orders, this time in the Health care industry.  Whilst some aspects of the case are unique to Health Workers, our view that some of the questions asked by the plaintiff of Chief Health Officer Dr Kerry Chant poses some interesting HR & Workplace Relations considerations for businesses considering implementing mandatory workplace considerations.

Larter vs Hazzard differs from previous cases before the Supreme Court as it is not disputed that termination of employment would be the result for all Health Workers who are contentious objectors to Covid-19 vaccinations.  Due to the current lack of Unfair Dismissal precedent in this space to provide direction, this immediately caught our attention.

Dr Chant was asked what percentage of fully vaccinated health workers would not longer constitute a public health crisis, noting that 90 percent of NSW Health Workers are currently double vaccinated.  Dr Chant was not drawn to provide an answer to this question.  However for the broader business community, this creates an interesting thought – at what vaccination rate within your workplace have you fulfilled your obligation to provide a safe workplace for your employees?  The health care industry by mandating the vaccine that their answer is 100%.  But does your business contain the same level of risk as the health care industry?

When being questioned regarding the reasonableness of the mandatory vaccination order, Dr Chant acknowledged by their very nature that Health Orders were in fact temporary.  The plaintiff questioned Dr Chant if when providing advice regarding the Health Orders, she considered that the consequence of the order being termination was permanent against a temporary response to a health crisis.  In other words, it was suggested that the health crisis is not going to be around forever, but once a person is terminated they are unlikely to return to the industry.  For the broader business community, in terms of considering a mandatory vaccination policy, are you making long term policy decisions to solve a short term problem?

Dr Chant was then taken in cross examination to NSH Health policies regarding other vaccine treatable diseases.  The point was made that those policies set out different categories of employees based on their perceived risk of contracting or transmitting the disease.  For example, distinctions were made between between employees who interacted with patients and those that did not.  The question was asked why this was different in relation to the health orders which impacted all Health Services employees regardless of if they interacted with patients or not.  Dr Chant made the assertion for example administrative employees would have interaction with other health workers who will in turn have interactions with patients therefore the blanket industry mandate was justified.  For the broader business community, this line of questioning brings into consideration if blanket business wide mandates will indeed be found reasonable.  Consider the different facets of your business, do they all bring with them the same level of risk to employees and your clients?  Does an employee working from home 3 days per week have the same Covid risk profile as a nurse working in a Coivd ward?  The point being that not all businesses and not all employees are the same therefore a blanket approach may not be reasonable.

Although there was much more to consider on Day 1 of the hearing, not all of it applies to the broader business community and is unique to Health Workers engaged by NSW Health so we won’t go into them in detail.  Again, we share this with you not to advocate for one position or another but rather to take you behind the scenes to some of the questions and consideration we are taking on board when considering the vexed topic of mandatory workplace vaccinations.  We seek to give you a balanced view, to have the discussions that are needed to be had but are not being covered by many, to empower you to make informed decision for your business moving forward.

We welcome any comments or thoughts regardless if you strongly agree or disagree with some of the questions we are asking.

Thanks very much for watching all the way to the end and very much looking forward to seeing you all in the next update.