The Fair Work Commission (FWC) has delivered a much-awaited decision, determining that an employee who refused to receive a flu vaccination was not unfairly dismissed. The case provides guidance to employers about when policies mandating vaccines, including COVID-19 vaccines, may be lawful and reasonable.
The employee, Ms Barber, had been employed by Goodstart Early Learning (Goodstart) for 14 years. In April 2020, Goodstart introduced a policy requiring staff to be vaccinated against influenza. Ms Barber refused to be vaccinated on medical grounds. Although Goodstart’s policy provided an exemption for employees who had a medical condition which made it unsafe for them to be vaccinated, Ms Barber did not produce medical evidence which satisfied Goodstart that she qualified for this exemption.
Ms Barber claimed that she had an allergic reaction to a flu vaccination 11 years previously. However, she was only able to produce medical certificates that confirmed her having reported to the relevant doctor that some years ago she had had an allergic reaction to a flu vaccine, and that she had a ‘sensitive immune system’ and coeliac disease. The medical certificates did not confirm that she had, in fact, suffered an allergic reaction to a vaccine.
Goodstart gave Ms Barber several opportunities to produce additional medical information to support her refusal to be vaccinated. The medical evidence she did produce was considered by a panel of Goodstart staff members. This process took place over more than three months, and ultimately Goodstart decided to terminate Ms Barber’s employment.
In finding that Ms Barber’s dismissal was not harsh, unjust or unreasonable, Deputy President Lake found that:
- the policy mandating flu vaccination was lawful and reasonable taking into account:
- Goodstart’s obligations under the Work Health and Safety Act 2011 (Qld) and the Education and Care Services National Law Act 2011 (Qld) and corresponding regulations to ensure the safety of workers and children within their care and, in particular, manage the risk of infectious disease;
- government recommendations that people working with children get the flu vaccination;
- the increased risk influenza posed to children under five years of age;
- the lack of alternative risk controls that could be implemented, given the level of contact between children and employees over the course of the day and the nature of that contact;
- the exemption on medical grounds included in the policy;
- that the policy had been prepared in consultation with relevant unions and employees were given an opportunity to respond to the policy once implemented; and
- that vaccination was funded by Goodstart;
- Ms Barber did not produce evidence to support her exemption from the policy on medical grounds; and
- the flu vaccine was not an inherent requirement of Ms Barber’s position, given that she had performed the role for many years without having the vaccine. Accordingly, Ms Barber’s incapacity to perform the inherent requirements of her role (as asserted by Goodstart) was not a valid reason for the termination of her employment. However, Ms Barber’s failure to comply with Goodstart’s lawful and reasonable direction to have the flu vaccine was a valid reason for the termination of her employment on the grounds of misconduct.
Things to note
DP Lake was at pains to note that the decision was specific to the circumstances of the case, and should not be treated as a wider precedent for mandating COVID-19 vaccines. Despite this, the case does provide some useful guidance about when it may be lawful and reasonable for an employer to mandate vaccines against infectious diseases, including COVID-19.
Employers looking to mandate vaccines for their staff should ensure that there are good reasons for doing so. Those reasons might be based on the nature of the work performed, industry recommendations, government recommendations particular to the industry, and legal or contractual obligations of the employer. Obviously operations in the childcare and aged care industries present relevant vulnerabilities – but in our view so do disability services, schools and other service providers.
Employers should also ensure that flexibility is built into the policy to allow exemptions to employees who present compelling grounds for doing so. Medical grounds are likely to be the most compelling, but at this stage it is too early to rule out the possibility of other reasons for objection being found to be relevant.
If you would like assistance with preparing immunisation or other workplace policies please contact our national Employment, Workplace Relations and Safety team.