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Discrimination claim against ALS over vaccine mandate dismissed

A former Aboriginal Legal Service employee has had his case against the ALS dismissed after he claimed he was discriminated against for declining to be vaccinated during the COVID-19 pandemic.

user iconLauren Croft 08 May 2023 Big Law
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After resigning from the Aboriginal Legal Service (NSW/ACT) early last year, Wiradjuri man Cleveland McGhie claimed that a vaccine mandate policy from the ALS was a form of discrimination against him and began a legal complaint against the organisation. 

Mr McGhie had attempted to sue the ALS for discrimination, in a matter that was referred to the ACT Civil and Administrative Tribunal. This came after, as an employee of the ALS, he was required to be vaccinated — something he argued “directly discriminated against him on the basis of his genetic information and his political conviction”, the tribunal outlined. 

However, this claim was dismissed by ACAT presidential member Heidi Robinson and member Dianne Lucas, who said that the matter was a case of an “unfortunate series of events”.


Mr McGhie was first employed by the ALS in November 2021, which coincided with part of the COVID-19 pandemic and came after a few weeks the introduction of measures by ALS to manage the workplace risk presented by the pandemic.

This included a mandate that staff had to be fully vaccinated for COVID-19 and provide proof of that vaccination by 21 January 2022. At the time, Mr McGhie was not vaccinated and did not want to be vaccinated.

On 14 January, Mr McGhie resigned from his position at the ALS before submitting a claim to the ACT Human Rights Commission (HRC) alleging discrimination. After this was unsuccessful, Mr McGhie requested that the HRC refer his complaint to the ACT Civil and Administrative Tribunal for further investigation.

When interviewing for his role in late September 2021, Mr McGhie was not made aware of the ALS’ COVID-19 emergency response plan, which was sent out to staff via intranet earlier that month.

This was followed by an ALS staff survey, the results of which strongly favoured vaccination requirements, with over 80 per cent of employees indicating that they were concerned about other staff being unvaccinated.

Mr McGhie received his contract in October, three weeks before starting, which did not mention the survey results or the emergency response plan details — however, Robinson M stated that “given the media coverage of the COVID-19 emergency, [Mr McGhie] could not have been unaware that many employers were making similar arrangements to manage work and risk”.

One week before Mr McGhie started at the ALS, the organisation sent out an email titled “getting back into the office”, which noted that from 6 December, it was a “condition of employment” that all staff be “vaccinated with at least two doses of a government-approved COVID vaccine”.

The email also noted, however, that those with a medical exemption or other exemption may be exempt from this policy, although they may not be able to work in client-facing or office roles. Mr McGhie had not received a request for a medical exemption at this point, but nine days after he first started, another email was sent out to all new starters to request an immunisation certificate and to advise them of the new policy.

Mr McGhie replied to this email with questions about what would constitute a medical exemption, what “government policies” the mandate referred to, and if the ALS would be liable for any sicknesses from vaccinations. The ALS then replied, setting out their obligations as per the Work Health and Safety Act and stating that “if illness or sickness resulted from vaccination, ALS would assist the person to make a workers’ compensation claim”, and directed Mr McGhie to work from home until he was vaccinated.

Following this, Mr McGhie set out numerous concerns in a letter on 7 December, labelling the ALS response to his original queries as “insensitive and dismissive” and asking for “further information, adequate responses to my questions above and evidence as requested above for me to consider making an informed decision”.

“I am not sure to what level of understanding, thought or consideration has been had in relation to the experience of past sanctioned coercion, compulsion and enforcement on Aboriginal people, with minimal or no accountability or liability for impacts,” he wrote.  

“Referring only to the workers’ compensation as the level of liability/accountability, in my opinion, is equivocal and culturally insensitive. In particular in the context of coercion, compulsion, enforcement being sanctioned on an Aboriginal person. Furthermore, mainly referring to government policy, given the past impacts of trauma and oppression inflicted on Aboriginal people as a result of government policies.”

The ALS replied and stated that if Mr McGhie was not vaccinated by the deadline, they would be “considering whether or not [his] employment in [his] role is able to continue”.

“The decision to require our employees to be fully vaccinated was not taken lightly and was determined following consultation with employees through its survey and a consideration of a range of factors, most relevantly the fact that the Aboriginal community which we serve has one of the lowest rates of vaccination and, correspondingly, one of the highest rates of infection with COVID-19, presenting an unacceptable health risk for both our employees and our clients,” the email to Mr McGhie read.

“In managing that risk, we took into account the fact that the vast majority of our employees had already elected to be vaccinated or indicated an intention to do so, indicating a high level of support for such a policy.

“Whilst I appreciate you raising the matters in your email, you do not raise any particular reason for not being, or intending to be, vaccinated other than a health concern unsupported by any medical evidence.”

The ALS also noted that due to his position, Mr McGhie would be required at courts and other locations where he would come in close contact with clients, as well as other members of staff and the indigenous community — and was asked to direct any further communication to the ALS HR director, Angela Robinson.

On 17 December, Mr McGhie replied to Ms Robinson reiterating his concerns — and said that his primary reason for not being vaccinated was a personal one and that it was a “basic human right”, but also cited health concerns due to a family history of heart issues.

Following this, Mr McGhie and Ms Robinson had a meeting, after which Ms Robinson said she would come back to this in 2022 in order to give the issues “serious thought and consideration”. 

After lodging his complaint with the HRC in January 2022, Mr McGhie emailed Ms Robinson asking when he could expect a response to his queries and “a clear outcome for my employment as of 21 Jan 2022, as I will not be vaccinated”.

Robinson M found that this correspondence showed that it “was not an unreasonable inference” for Mr McGhie to assume his employment would be terminated, particularly after failing to apply for a medical exemption and labelling his decision to be unvaccinated a “personal one”. He also found that Mr McGhie was not treated differently from how his colleagues would have been.

“[Mr McGhie] cited being required to work from home as the unfavourable action, although that direction itself needs to be viewed in the context of likely further adverse consequences, including potential loss of employment from being unable or unwilling to fulfill the requirements of his position,” the judgment stated.

“I don’t understand it to be seriously in issue that [Mr McGhie] was treated ‘unfavourably’ in the sense that he was subject to the condition that he work remotely, and the [ALS] proposed further restrictions.”

Mr McGhie also claimed that he was discriminated against based on his genetic information, but Robinson M was not satisfied with this and said that Mr McGhie “presented no evidence that would suggest that a person’s vaccination status could be determined from their genes”.

“Accordingly, [Mr McGhie] has not established that his ‘genetic information’ was a causal basis for any unfavourable treatment,” the judgment stated.

To Mr McGhie’s claims that the ALS was acting on a political belief, Robinson M said that “the issue of how to manage the COVID-19 crisis, including policy issues about vaccination and vaccination mandates were, without doubt, the subject of political discussions. However, just because a subject has a political context does not mean that a person responding to it is acting out a ‘political conviction’.”

“The correspondence between [Mr McGhie and the ALS] supports the view that [Mr McGhie’s] objection to vaccination was less a political conviction than a personal one — albeit one shaped by personal and cultural background. Those personal views led him to question industrial and workplace decisions made by his employer. However, there is nothing in the correspondence that suggests his concerns are with government policy or even ideology. They were not, as articulated, political views or indicative of a political conviction,” Robinson M said in his judgment.

“[Mr McGhie’s] culture is very much one where history, and government policy and political decisions have had significant detrimental consequences. However, [his] position in relation to vaccination, as articulated, was not one that bore upon government policy or political decisions; his criticism lay with decisions by [the ALS].”

The events, Robinson M said, were “an unfortunate series of events”, whereby Mr McGhie moved interstate for a job he didn’t realise he would need to be vaccinated for and agreed that it was “unfortunate that ALS’s position on vaccination was not communicated to [Mr McGhie] before he moved to Canberra”.

“We appreciate that the applicant is frustrated and that his life has been disrupted. He spoke passionately about his culture, his beliefs, and the effect the episode has had on his personal and family life. The tribunal accepts he feels genuinely aggrieved by his experiences with the respondent. However, this alone does not make out a case under the Discrimination Act,” the judgment stated.

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