Vaccination Discrimination: Medically Exempted Waiter Shut Out of Hospitality Industry

Over the weekend, the published story of a Melbourne waiter shut out of the hospitality industry despite having a valid exemption for the Covid-19 vaccine has highlighted the serious issues created by mandated vaccinations.

After having a meningococcal immunisation some years ago, Mason Reed experienced rare side effects and spent two weeks in a coma. His body degenerated considerably and it was months before he could walk or drive again. He still has permanent damage to his sight and back muscles.

Now, because he works in the hospitality industry, he’s expected to be vaccinated against Covid-19 under Victoria’s strict mandates. His doctors have told him he shouldn’t have the vaccination. In fact, one of Victoria’s leading clinicians has also confirmed that Mr Reed has a “medical contraindication” and therefore he is one of the few people who cannot get a jab because it is likely to cause him serious harm.

Vaccination exemption, but still no job

Mr Reed has been granted an exemption, which should enable him to fully participate in work and general society. His employment agency accepted the exemption, but the reality of gaining employment has been a very different experience for Mr Reed.

Many businesses don’t want him, simply because they face a conundrum — and a good dose of fear — about employing a person who is not vaccinated, although exempt.

A very real concern for small business is what happens if an unvaccinated person inadvertently brings Covid to the workplace. What is the risk to other employees? What is an employer’s responsibility to employees in the age of Covid and what liability or legal action could businesses face if an employee ends up sick from Covid-19, which has been transmitted in the workplace by an unvaccinated employee?

Businesses also need to consider their customers and clients, and where their duty of care lies.

These are very real issues that businesses now face, particularly because Governments have tolled out vaccination mandates with a heavy stick and the threat of significant fines, but left business largely unsupported without clarity around how to manage these new responsibilities.

Vaccination discrimination is unchartered territory

But essentially, what it also amounts to is discrimination. And this is unchartered territory.

Under current laws, it is unlawful to discriminate on the basis of a number of protected attributes including age, disability, race, sex, intersex status, gender identity and sexual orientation, education and employment.

Australia’s federal anti-discrimination laws are contained in four pieces of legislation:

• Age Discrimination Act 2004
• Disability Discrimination Act 1992
• Racial Discrimination Act 1975
• Sex Discrimination Act 1984

Currently, the issue of discrimination on the basis of vaccination status has not been legislated.

That said, there is a strong argument that those with a valid medical exemption who are nevertheless prohibited from working in a certain field, or are discriminated against due to their condition, could challenge this on the basis that it amounts to disability discrimination.

No national Bill of Rights and limited constitutional protections

Australia does not have a national Bill or Charter of Rights, and neither does New South Wales, and the Australian Constitution only expressly guarantees protection for five rights, as well as a limited freedom of political communication which the High Court has inferred into the document.

The five protected rights are:

• The right to vote (Section 41),
• Protection against acquisition of property on unjust terms (Section 51 (xxxi)),
• The right to a trial by jury for criminal cases in the higher courts (Section 80),
• Freedom of religion (Section 116), and
• Prohibition of discrimination on the basis of State of residency (Section 117).

Victorian Charter of Rights

However, the positive news for Mr Reed is that Victoria has a Charter of Human Rights and Responsibilities.

Mr Reed has indicated that he is considering contacting the Victorian Equal Opportunity and Human Rights Commission to pursue a test case.

The Commission’s website states that:

“Vaccination status is not a protected attribute under the Equal Opportunity Act. This means that discrimination law doesn’t offer protection for everyone who chooses not to get vaccinated.”

“However, If an employer makes vaccinations a mandatory condition of employment, or a service provider requires proof of vaccination to access a service, this could be discrimination if you cannot be vaccinated due to a disability or other attribute protected under the Equal Opportunity Act and they do not make an exception for you.”

Not an isolated case

Mr Reed is likely not to be the only Australian facing this issue, particularly as mandates begin to kick in and businesses begin to set their own policies. In the meantime, Mr Reed is being encouraged to retrain to find work in a different industry, or consider work-from-home.

Pro-choice deputy president will not hear vaccine-related claims

Recently Fair Work Deputy Commissioner Lyndall Dean warned employers against implementing ill-considered mandatory workplace vaccination policies. However, after a complaint about her views which were published in a Fair Work Commission judgement online, she will now step aside from hearing claims about workplace vaccination mandates.

Her strong views may have been polarising, but they did offer a fresh perspective with regard to mandates, which have been rushed through by governments during the Covid-19 pandemic, without due consideration for the full long-term effects, not the least of which is the infringement on human rights, and the potential for discrimination.