A recent decision of the NSW Industrial Relations Commission (NSW IRC) has highlighted one of the pertinent issues currently being faced by employers – that is, to what extent an employer is entitled to require or request an employee provide them with personal medical information.
An employee’s (or any individual’s) health information is generally provided with a higher level of privacy protection under Australia’s privacy laws given its highly personal nature. As a result, it can only be obtained with the employee’s consent and only for a reasonably necessary purpose.
In the decision of Danger v Commissioner of Police (No. 2)  NSWIRComm 1040, the NSW IRC was required to consider an employer’s direction, which effectively required employees to provide proof of vaccination in the form of their immunisation history statement, and whether an employee’s non-compliance with that direction justified her dismissal.
The employee was employed as a Customer Services Representative by the NSW Police Force (the Employer). On 18 October 2021, the employee resigned from her employment, which the NSW IRC accepted as a constructive dismissal.
Prior to her constructive dismissal, the Employer had issued a direction which provided that all members of the Employer would not be able to perform their employment duties unless they had received at least one COVID-19 vaccine dose by 30 September 2021 and two doses by 30 November 2021. The Direction also required members to provide “vaccination evidence” if required by their manager, supervisor or Commander.
In conjunction with this Direction, two further notices were issued at the same time.
One of the notices contained a requirement that members provide “vaccination information” if required by their manager, supervisor or Commander. “Vaccination information” was defined as “a copy of your immunisation history statement as recorded on the Australian Immunisation Register, or a copy of a medical contraindication certificate”.
The other notice contained a request that members provide “a copy of your immunisation history statement as recorded on the Australian Immunisation Register”.
Following receipt of these documents, the employee raised concerns with her manager that, whilst she did not have any issues with receiving the vaccine, she considered that the requirement for her entire immunisation history was excessive.
The manager’s response was that she needed to submit a report to HR if she was seeking an exemption or deferral based on her concerns. He clarified that, in accordance with the Employer’s notices, she needed to provide vaccination evidence, which could be in the form of her vaccination history, receipt of proof or her COVID-19 vaccination certificate.
The employee then submitted a report to HR raising her concerns about the requirement to provide her immunisation history statement. On 1 October 2021, she was advised that her request for an exemption or deferral had been declined and that she would be stood down without pay until she had met the requirement to provide evidence of her vaccination status.
The employee attempted to clarify that she was not seeking an exemption or deferral, but rather raising concerns about her privacy which had still not been resolved.
By 18 October 2021, the employee still had no clarification and therefore provided notice of resignation, citing “the ongoing ambiguity” around her situation whilst being stood down without pay as well as the threat of dismissal or other disciplinary measures.
The NSW IRC found that the employee had been unfairly dismissed.
According to the NSW IRC, the Employer’s notices quite clearly required members to provide, if required by their manager, supervisor or Commander, a copy of their immunisation history statement as evidence of their vaccination or a medical contraindication certificate. They did not permit other forms of evidence to be provided, such as a COVID-19 vaccination certificate.
The NSW IRC considered this requirement to “[go] well beyond what was necessary to enforce the Commissioner’s vaccination mandate direction … and constitutes an unwarranted intrusion into an employee’s privacy”.
The NSW IRC was also critical of the contradictory notices which both required and requested members to provide vaccination information, finding that it created confusion in the mind of the employee.
The NSW IRC found that the employee was entitled to object to production of this information and noted that, even up to the date of her constructive dismissal, the requirement/request had not been rescinded or revoked. It also found the Employer’s response to the employee’s grievance to be “less than satisfactory” noting that the Employer continued to treat her complaints as requests for an exemption or deferral, when they were very clearly not. It stated:
“This failure on the part of the [Employer] to adequately address the legitimate concerns which the [employee] had been raising over an extended period of time was unfair to the [employee] and contributed to the breakdown of the relationship of trust and confidence between the [employee] and the [Employer].”
In finding that the employee was unfairly dismissed, the NSW IRC ordered the Employer to pay to the employee compensation in the amount of 14 weeks’ pay. It also ordered the Employer to amend a note on its records which had originally indicated the employee was not suitable for re-employment as she had not been vaccinated, to reflect that she was suitable for re-employment (as she had since been vaccinated).
Lessons for employers
When considering workplace policies or directions which would require employees to disclose personal health information to their employer, it is important that employers consider whether or not such information is reasonably necessary to achieve the intended purpose.
An individual’s health information is provided with a significant level of privacy protection under Australia’s privacy laws. Workplace policies and directions should be drafted to respect this protection and only require information as reasonably necessary.
Shane Koelmeyer is a leading workplace relations lawyer and Director at Workplace Law. Workplace Law is a specialist law firm providing employers with legal advice, training and representation in all aspects of workplace relations, employment-related matters and WH&S.
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Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog.
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