An injunction to prevent Victoria’s largest public health department from firing nurses who refuse Covid-19 vaccination or refuse to disclose their vaccination status has been rejected in federal court ahead of a lawsuit challenging the vaccine’s mandate.
Nick Ferrett QC represents around 90 nurses at Monash Health and told the court on Wednesday that under Victoria’s Occupational Health and Safety Act nurses should be consulted before disciplinary action is taken against them .
“There is no suggestion that any of the… employees involved… are dogmatic about vaccines and do not wish to be vaccinated under any circumstances,” Ferrett said. “So consultation is valuable in these circumstances. “
A directive from Victoria’s director of health under the Public Health Act makes it clear that health workers must be fully immunized, having received at least their first dose of Covid-19 vaccine by October 29, in order to work in a health facility. They must provide proof of vaccination to their employer.
But Judge John Snaden said there was “no evidence” that Monash Health was trying to stop nurses from exercising their rights at work by initiating disciplinary action to fire them.
“On the contrary, the evidence that there is a lot suggests that the course that was mapped out was traced because Monash Health felt that according to the public health guidelines by which it is bound, they are not allowed to do what.” whether it be. other [other than terminate employment], ” he said.
Ferrett argued that whether Monash Health had taken disciplinary action because workers were asserting their rights and pushing to be consulted should be considered at trial.
But Snaden said the nurses “… cannot point to anything as evidence to support their claim.”
“The employees concerned argue that they should have been consulted on the direction of the vaccination and that the disciplinary action to which they are imminently subjected will be imposed on them because they possessed and / or sought to exercise this right to ‘be consulted,’ he said.
“It appears highly improbable, if not impossible in view of the evidence filed to date, that the applicants will be able to assert their claim that they have been or will soon be the victims of an unfavorable appeal because or for reasons which include that they have owned or exercised rights in the workplace, or because Monash Health wishes to prevent them from exercising such a right.
“This of course presupposes that they in fact have such a right or rights. It will be a live question at trial.
Chris O’Grady QC, representing Monash Health, said the employer simply followed the instructions of the Chief Medical Officer of Health. “In light of the CHO guidelines, it goes without saying that anyone working in the health sector will have difficulty working in this sector if they are unwilling to be vaccinated or to disclose their vaccination status” , did he declare.
Monash Health also denied that it was obligated to consult with employees before firing them and that it would not change its obligation to comply with CHO guidelines in any way.
Snaden said that when the case goes to trial, if the court ruled that the vaccine mandate was illegal, nurses would likely see their jobs reinstated and receive back wages. Therefore, the court had no reason to block disciplinary action, including the dismissal of nurses by Monash Health in the meantime, he said, adding that the case had been “weak at best”.
Monash Health had pledged not to take action against the affected nurses until the matter was resolved. In light of Snaden’s decision on Wednesday, Monash Health was now free to lay off staff.
The proceedings on the merits will now be assigned to a judge, who will be heard at a later date.