A letter to an Australian employer (that wants to mandate vaccination)

Dealing with wolves.

The wife of a friend of mine, living in Sydney (NSW, Australia), received a letter from her employer (a well-known charity no less) stating that for her to go back to work, she needed to be vaccinated. The current Public Health Order of NSW does NOT mandate this.

The letter doesn’t blame the government, because it can’t, instead the vaccine mandate is premised on a “staff survey” finding that the majority of staff would feel safer if all staff were vaccinated.

It is quite simply employer overreach (bullying) that is well outside the bounds of the law. But then again, we are in a mass hysteria.

I am reminded of Benjamin Franklin’s quote: “Democracy is two wolves and a sheep voting on what’s for dinner. Liberty is a well-armed sheep protesting the vote.”

The employer is either ignorant of the law or doesn’t care because of a misguided assumption that the government “has its back”.

Well, it turns out that the sheep still has some weaponry available to it.

The question is whether people will stand up for themselves and put up a fight. Under no circumstance should you resign or leave meekly, you need to force them to fire you, officially.

Well, another friend of mine, the best “bush lawyer” I know, wrote this letter to help her stand up to her bullying employer.

You will find the Word template here that you can repurpose it as you see fit.

Template

But first, and obviously, this isn’t legal advice, I am only a kitten after all, and kittens cannot practice law in any Australian State or Territory. So, please find yourself a non-kitten lawyer and put up a fight. I hope this letter helps.

If you live outside Australia, you can repurpose the letter based on the relevant laws in your country.

The strategy is one of creating and putting financial risk back on the employer and also relying on anti-discrimination laws (that many countries have) that were enacted in the early 90s in response to AIDS. Well, as you will see, by simply substituting AIDS with COVID and HIV with Cov-Sars-2 you have an anti-discrimination framework that applies to these times.

Here is the letter and good luck with your fight. Share this with friends and family who want to, but don’t know how to, stand up to a crazed and/or cowardly employer.

WITHOUT PREJUIDICE

[Date]

Dear [Name]

COVID19 vaccine mandate and threat to my employment status

You have provided a notice dated [date] requiring me to receive the COVID19 vaccine by [date] in order to maintain my employment (Mandate).

On the basis of, and subject to, the matters and facts set out below, I consider your Mandate unlawful, and do not intend to comply with its requirements.

I put you on notice of my position that your suggestion that I am required to comply with your Mandate is not only unethical and immoral but is illegal.

Without limiting other actions or remedies available to me, I consider that your Mandate represents a breach of your obligations under Fair Work Act 2009 and the Disability Discrimination Act 1992.

I ask you to note that, on the pressing issue of whether COVID vaccinations can in fact be mandated by you (or any employer) on health and safety grounds, in her capacity as Deputy President of the Fair Work Commission (FWC), Ms. Lyndall Dean has stated that, “in almost every case the answer is – no”.

Accordingly, I reserve all rights to commence proceedings against you in the FWC and/or other court or tribunal without further notice should you seek to impose any sanctions on me, including but not limited to termination or suspension of my employment or other workplace rights.  

While your actions in requiring me to submit to this or any medical procedure are a breach of law – I accept that you may have the right to request or even recommend that I consider the COVID19 vaccination.

If you wish to amend your Mandate to a request or recommendation (Request), please provide me with your detailed risk assessment as to the reasoning for such Request in line with your obligations under Work Health and Safety (WHS) laws as detailed by Safe Work Australia.

Quite rightly, Ms. Dean (again in her formal capacity as Deputy President of FWC) has also provided a clear and timely reminder to employers that, “it should be clearly understood that employers who mandate vaccinations will be liable for any adverse reactions their workers may experience, given this is a foreseeable outcome for some people”.

Given the clearly documented adverse reactions and deaths that may result from the COVID19 vaccination, should you amend your Mandate to a Request please confirm that the company and its directors will execute a deed of guarantee and indemnity (Guarantee) to compensate (without limitation) myself or my estate for any and all loss or damage should any adverse reactions, harm, or death resolute from your Request – either now or at any time in the future. Such Guarantee to be on terms acceptable to me, my spouse, children, and my legal representatives at my absolute discretion. 

I assume that in taking the action to issue your Mandate that you assert that such adverse reactions and deaths are “rare” - in which case I would expect you have no problem in providing such Guarantee.

On the matter of your FWC and WHS obligations I would conclude with a few additional points firmly stated by Ms. Dean. In short, states Ms. Dean, “there is no justifiable basis for employers to mandate COVID vaccinations to meet their health and safety obligations when other options are available to appropriately manage the risk”.

As Ms. Dean has rightly reminded employers and us all - “the fundamental starting point here is the answer to the question – what is the risk?”

And that, “All risk-controls are (or should be) designed to address an identified risk. The risk needs to be a real risk and not a perceived risk”…

….“The real risk for employers is that a person who has COVID will spread COVID to others within the workplace”.

As Ms. Dean further notes, “….the risk of spreading COVID only arises with a person who has COVID. This should be apparent and obvious. There is no risk associated with a person who is unvaccinated and does not have COVID, notwithstanding the misleading statements by politicians that the unvaccinated are a significant threat to the vaccinated, supposedly justifying “locking out the unvaccinated from society” and denying them the ability to work.

The primary duty of care for employers under health and safety law requires the employer to ensure health and safety so far as is reasonably practicable by eliminating risks to health and safety, and if this is not reasonably practicable, risks must be minimised so far as is reasonably practicable.

There is nothing controversial in stating that vaccines do not eliminate the risk of COVID, given that those who are vaccinated can catch and transmit COVID.

What is clear, however, is that the vaccine is not an effective control measure to deal with transmission of COVID by itself””.

Of course, it is true that to meet its duties under HWS laws an employer needs to minimise the risk of exposure to COVID in the workplace, which will require employers to apply all reasonably practicable COVID control measures.

However as duly noted by Ms. Dean, SWA, on this matter of reasonable measures, has itself advised that “it is unlikely that a requirement for workers to be vaccinated will be ‘reasonably practicable’”. And it has added, “most employers will not need to make vaccinations mandatory to meet their [health and safety] obligations”.

Of course, it would be perverse, given that COVID19 vaccine are evidenced as not preventing either the contraction, nor spread of COVID19, that an employee was lulled into thinking their workplace safe (by way of their employer’s vaccine mandate) and then contract COVID nonetheless from a vaccination workmate, thereby exposing the employer to legal action for its negligence.

Critically, there is another alternative to vaccines to assist employers in meeting their WHS obligations, that being testing. Given there is no doubt that those who are fully vaccinated can catch and transmit the virus, testing (whether rapid antigen or otherwise) will provide employers with a level of comfort that a worker does not have COVID and therefore will not transmit COVID to others (that being the risk that is to be managed) in the workplace.

Testing is now widely used around the world as a risk control for the spread of COVID. There is absolutely no reason why it cannot be widely used in Australia.

Testing is arguably a better control measure compared to vaccines in meeting health and safety obligations.

I urge you to drop your Mandate, and if you are not prepared to offer a guarantee of indemnity, not even consider a Request, but instead actually make our workplace safe through the introduction of rapid antigen testing – should you consider even that necessary.

Before concluding I will turn to the point of your discriminatory actions through your Mandate.

I consider that any sanctions imposed by you for me declining your Mandate will breach the Disability Discrimination Act 1992 (DD Act). The DD Act makes it unlawful to discriminate against a person, including in employment and in accessing services, because of a disability.

The definition of disability in s.4 of the DD Act includes “the presence in the body of organisms capable of causing disease or illness”. It includes a disability that presently exists, or previously existed but no longer exists, or may exist in the future, or is imputed to a person.

The Explanatory Memorandum to the DD Act discusses the definition of disability as being:

“…intended to include physical, sensory, intellectual and psychiatric impairment, mental illness or disorder, and provisions relating to the presence in the body of organisms capable of causing disease. These provisions have broad application, for example, they are intended to ensure that persons with HIV/AIDS come within the definition of disability for the purposes of this Bill.”

As a recent article in the Spectator by retired lawyer David Porter has noted, gay men were the prime target for protection under this part   of the definition of disability because of a perception they were at a greater risk from HIV. In this situation the DD Act works to prohibit all types of discrimination not only against gay men but everyone who may in future be infected with HIV.

Mr. Porter notes that “for the same legal reason that a publican cannot say ‘gay men are not allowed into my pub because they might be infected with HIV’, a publican also cannot say ‘unvaccinated people are not allowed into my pub because they might be infected with measles. Nor is it valid for a State or Territory to pass a law to that effect – the Act binds them too.”

Section 48 of the DD Act provides an exemption for discrimination that is necessary to protect public health where a person’s disability is an infectious disease, however being unvaccinated is not an infectious disease. What logically follows is that an employer who dismisses a person because they do not have a COVID vaccine will breach the DD Act.

In closing I ask that you confirm recipient of this correspondence; withdraw your Mandate; and engage with me to consider the best path forward to protect our individual and mutual rights and obligations in a manner that genuinely seeks to protect and keep safe our workplace (rather than just providing the perception of same while potentially lulling my colleagues into a false sense of protection or security).

Regards

[Employee]