St George Hospital nurse lodges unfair dismissal claim after fired for not getting Covid-19 vaccine
The former St George Hospital nurse lodged an unfair dismissal claim after she was terminated, believing she wasn’t informed about the safety and efficacy of Covid-19 vaccines. Find out if she won.
NSW
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A former nurse at St George Hospital has failed in her unfair dismissal claim after she was fired for refusing to get vaccinated for Covid-19 when mandated.
Arlene Adriano was employed as a registered nurse providing patient care at St George Hospital within the South Eastern Sydney Local Health District from August 2012.
Adriano was terminated in December 2021 because she had not been vaccinated against Covid-19 or had an exemption due to a medical condition.
Adriano brought an unfair dismissal claim against the secretary of the Ministry of Health in the Industrial Relations Commission in January.
In an online published judgment this week, Commissioner Janine Webster found Adriano’s “dismissal was neither harsh, unreasonable or unjust” and dismissed the application.
In 2021, the Minister for Health mandated Covid-19 vaccination requirements for people employed by public health organisations whereby all health care workers had to receive their second dose by November 30.
The public health order prohibited workers from being employed unless they met the vaccination requirements or had a valid medical exemption, and were in effect at the time of Adriano’s dismissal.
In August and September last year, staff were given updates on the public health orders and vaccinations.
The secretary of the ministry for health wrote to Adriano advising she would be unable to work from September 30 if she did not comply with the vaccination requirements and again advised her on September 29 that she would be on unpaid leave until December 22.
In October, Adriano was invited to show cause why her employment should not be terminated within 14 days to which she responded she had personal reasons for not complying with the requirements, believing the vaccine mandate was arguably illegitimate on the basis of discrimination, medical, legal, moral and ethical grounds and she was ready, willing and able to work.
Adriano asked for the termination be deferred until January 31 in order to seek legal counsel, noting court challenges to the vaccination requirements.
She also expressed concern about the safety of the available vaccines and referenced her father who died after receiving two doses.
Adriano spoke with a public health specialist but indicated she did not find the session helpful and her position on the vaccination had not changed therefore her employment was terminated on December 22.
During the unfair dismissal claim, Adriano did not challenge the validity of the public health orders but rather argued the secretary did not provide sufficient information regarding the potential risks nor assure her of the safety of vaccines.
Adriano further claimed the ministry of health did not comply with obligations under the Workplace Health and Safety Act including failing to discharge its duty of care to her, consult her about vaccination requirements especially about the risks of taking vaccines; did not answer all her questions about the safety and efficacy of the vaccines and she was not given an opportunity to consult with another doctor other than the public health specialist.
She further argued the decision to terminate her employment was harsh because it was an “extreme” response to the situation and had a “disproportionate” impact on her.
The health secretary in response argued there was a valid reason for the termination of Adriano’s employment, given her inability to perform her role without meeting the vaccination requirements, therefore the decision was not harsh, unreasonable or unjust.
It was submitted the secretary was not obliged to consult with Adriano about the implementation of the vaccination requirements pursuant to the Workplace Health and Safety Act because the public health orders were imposed upon local health districts by the government.
Commissioner Webster found the decision to terminate Adriano’s employment was not unjust.
“There was a sound, defensible and well-founded reason for the termination of the applicant’s employment. The applicant’s employment was terminated because she did not provide any evidence of meeting the vaccination requirements,” she said.
Commissioner Webster noted that if Adriano had been allowed to continue to work in her role then the health secretary would have breached the public health order.
Commissioner Webster further noted there was no requirement to consult with Adriano but the health district did speak with relevant unions about the introduction and implementation of the vaccination requirements, including providing updated information about the state government’s pandemic response, public health orders and COVID-19 vaccinations.
Commissioner Webster further noted Adriano was unable to trust the information provided by the public health specialist believing it was inaccurate especially in regards to the number of deaths; and the specialist was not aware of the so-called “renowned experts” she had researched.
“There was no obligation upon the respondent to source another expert for the applicant to consult with her in respect to her personal decision to become vaccinated, or not,” the commissioner said.
“I reject that the respondent was obliged to support the applicant any further than they did to make an informed decision about whether to become vaccinated.”
The Commissioner noted Adriano seemed to be arguing that her father’s death was indicative of the ineffectiveness of Covid-19 vaccines, including by contrasting the experience of other relatives who recovered quickly from the virus when not vaccinated.
The Commissioner noted Adriano’s views on vaccination were strongly held and were not going to change.
“There was no obligation upon the respondent to convince the applicant to become vaccinated, although her evidence and presentation of her case has led me to the conclusion that it would be near impossible for the respondent to change her perspective on the issue anyway,” the commissioner said.
“The applicant had a choice, and she has decided, knowing the consequences of that decision, to remain unvaccinated in respect of Covid-19.
“Her arguments in respect of a lack of consultation were, frankly, disingenuous.
“The decision to terminate her employment was not unreasonable, given the process undertaken by the respondent.”
Commissioner Webster noted the financial, social and emotional impacts associated with losing employment, considered the death of Adriano’s father and accepted she clearly had struggled to process the events of the pandemic.
She ultimately found the reasons and circumstances for the termination were not too harsh.
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