Monash Health has been given a green light to take disciplinary action including dismissal against nurses who aren't vaccinated against COVID-19.
About 90 nurses tried to block the planned action in the Federal Court on Wednesday, arguing they had a right to be consulted about Monash Health's mandatory vaccination direction.
They sought an urgent injunction to stop disciplinary action being taken before the full case can go to trial but that was refused by Justice John Snaden, who found their legal case was weak at best.
Since October 15 all Victorian healthcare workers must provide their employer with evidence they are fully vaccinated against COVID-19, that they had an appointment to receive a first dose by October 29 or they have a medical exemption.
Monash Health also imposed that directive, with disciplinary action including termination applicable for those who didn't comply.
But the nurses say they have a workplace right to be consulted about the directive - including being given the chance to express their views and for those views to be taken into account.
Their lawyer Nick Ferrett QC said Monash Health could and should have sought to find out what their concerns were and whether it was possible to overcome them for people to get vaccinated and to be allowed to continue working.
He said if Monash Health has the resources to interview all those employees for disciplinary reasons, which he anticipated would happen, it's difficult to think they wouldn't have the resources for consultation.
Justice Snaden said Monash Health denied it was obliged to consult.
He said more significantly their barrister Chris O'Grady QC had highlighted the disciplinary process would be embarked upon solely because the employees had failed to comply with the binding direction.
"The course that has been plotted, has been plotted because Monash Health has formed the view the public health directions, by which it is bound, do not permit anything else," Justice Snaden said.
He found disciplinary action and likely dismissal would have significant impacts for probably all of the employees, but found given the weakness of their case that was not enough to grant the relief they sought.
Earlier he had noted that if their case was successful at trial they could ask to be reinstated and to be compensated for the period they were wrongly dismissed.
The full case will be listed for trial before another judge at a later date.
Australian Associated Press