COVID-19 vaccine refusal case for dental therapist may go to Industrial Relations Commission’s full bench

An industrial relations commissioner in Queensland has recommended an unfair dismissal case involving a health worker who was sacked for failing to comply with COVID-19 vaccination requirements go to the commission’s full bench. 

Former dental therapist Beverley Mackenzie has applied to be reinstated to her job at Innisfail Hospital in far north Queensland.

The commission heard Ms Mackenzie was dismissed with immediate effect in March this year, about six weeks after an internal departmental review found a decision to refuse her an exemption from a directive to be vaccinated against COVID-19 was “not unreasonable”.

The commission heard Ms Mackenzie sought the exemption over concerns about risks associated with the vaccine and her ability to provide free and informed consent to receive it.

She had worked for the department for almost 40 years.

‘Substantial industrial significance’

Tens of thousands of public sector workers are subject to vaccine mandates, but the Queensland Industrial Relations Commission is yet to decide on any applications for reinstatement from workers who have not complied.

Commissioner Roslyn McLennan said a determination on whether Ms Mackenzie’s dismissal was harsh, unjust or unreasonable could have “substantial industrial significance” across the entire state.

The president of the QIRC will determine whether the full bench convenes to hear the case.(ABC TV News)

The president of the Queensland Industrial Relations Commission has the final say on whether the full bench will hear the application.

In her reasons for referring it to the full bench, Commissioner McLennan said the outcome “may have significant cost implications for the Queensland public sector”.

“If the Commission considers reinstatement or re-employment would be impracticable, an amount of compensation may be ordered of up to six months wages,” she said.

Commissioner McLennan said a full bench hearing would also “avoid the same question being decided over and over again by a member sitting alone”.

Not the only case afoot

Public sector vaccine mandates in Queensland are already the subject of unrelated civil proceedings in the state’s Supreme Court, where dozens of frontline workers are challenging the directives’ validity.

The full bench of the federal Fair Work Commission has also made determinations in cases involving vaccination-related dismissals.

Man in suit and tie smiling
Employment law specialist Giri Sivaraman says the Queensland Industrial Relations Commission may anticipate a high volume of similar cases to come.(ABC News)

“I suspect Commissioner McLennan has seen what’s happened in the federal arena and has thought that was quite a useful exercise and it might be worthwhile if the same thing happens here,” Giri Sivaraman, employment law principal at Maurice Blackburn Lawyers, said.

Mr Sivaraman said people who refused vaccination often did it because they had “very strong views on the issue” and were therefore “much more likely to bring an application alleging their dismissal was unfair”.

“What I think is happening here is the commission knows it has a whole bunch of cases in train that are going to hit the commission,” he said.

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