The Work Health and Safety Tribunal has dismissed the claim of an education employee after determining that a direction to receive a vaccination did not constitute ‘work’, and that refusing to receive the vaccination did not constitute a refusal to work.

Background

The applicant was employed at a primary school. In December 2021, the Chief Health Officer of Western Australia and Director General, Department of Education made directions and issued instructions respectively, regarding the vaccination requirements for education workers who were working in an education facility. The applicant refused to be vaccinated and did not seek an exemption, and did not work from 23 December 2021 until 10 June 2022, when the public health directions were lifted. The applicant applied to the Tribunal for pay and benefits for the period that he did not work.

Contentions

The applicant contended that the direction to receive a vaccination constitutes ‘work’, and contended that a refusal to be vaccinated constitutes a refusal to work under s 26(1) of the Occupational Safety and Health Act 1984 (WA) (‘OSH Act’).

The applicant believed the vaccination would expose him to a risk of imminent and serious injury or harm to his health, and that the direction to be vaccinated was not a reasonable and lawful order and complained that the respondent did not do a risk assessment of the COVID-19 vaccinations. 

The respondent contended that the applicant did not refuse to work, and instead was unable to access the school because of the operation of public health directions, and as such was unable to work. The respondent contended that refusal to be vaccinated does not amount to a refusal to work, and that the requirement to be vaccinated was a direction given in order to ensure the applicant complied with the CHO directions, and that the applicant could lawfully work.

The respondent indicated that from 4 January 2022, the applicant was stood down without pay, and not entitled to the benefits claimed.

Findings

The Tribunal noted that the remedies sought by the applicant were outside of the Tribunal’s powers, and that it was also not within the jurisdiction of the Tribunal to consider whether the respondent could have been more accommodating, in agreeing to alternative work arrangements.

The Tribunal found that that the condition to receive a vaccination was not ‘work’ for the purposes of s 26 of the OSH Act, and that the applicant’s refusal to be vaccinated was not a refusal to work, and that the application would be dismissed.

The Tribunal considered that even if the applicant’s absence from work was because the applicant believed that it would expose him to a risk of imminent and serious injury or harm to his health, that this belief was not based on reasonable grounds. The Tribunal noted the expert evidence accepted  in Falconer v Chief Health Officer (No 3) [2022] WASC 270, and the Chief Health Officer’s statements to the effect that COVID-19 vaccinations were safe and effective; were an important measure in reducing the spread of COVID-19; and vaccination was necessary to protect workers and the community. In coming to this conclusion, the Tribunal further noted the TGA approval of the vaccination and the decision of a WorkSafeWA investigator, determining that no further investigation was required in response to a report by the applicant.

The Tribunal further noted that the applicant would have been unable to lawfully perform his work during that period because of the directions of the CHO and CEO of the school, and would not have been entitled to pay and other benefits during the claim period. The Tribunal dismissed the application.

The decision can be read here.