Worker not immune to job loss

In brief 3 min read

The Fair Work Commission (FWC) has upheld the dismissal of an employee who refused to comply with a mandatory influenza vaccine policy. However, the FWC made the observation that this decision turned on the facts of this particular case and the industry in which the employee worked.¹

Key takeaways

• Vaccination policies should be adapted to each specific workplace. There is likely more scope to implement a mandatory vaccination policy in the circumstances where an employer is subject to statutory obligations or regulatory regimes that imposed higher health and safety obligations. The inclusion of a medical exemption is generally advisable.
• In the context of medical exemptions from a policy, the medical evidence required to warrant an exemption will likely need to be sufficiently robust to satisfy the employer that receiving such a vaccination will present discernible health risks to the employee.

Background

Ms Bou-Jamie Barber was employed by Goodstart Early Learning in various roles including as a Director and Group Leader. Her employment with Goodstart was terminated in August 2020 due to her refusal to comply with a new requirement for all staff to receive the influenza vaccine unless they had a medical condition that made it unsafe for them to do so.

Ms Barber supplied Goodstart with two medical certificates referring to her sensitive immune system, history of chronic autoimmune disease/coeliac disease and a reportedly negative reaction to a vaccine in the past. However, neither of these medical certificates stated that there was an increased risk to Ms Barber in receiving the influenza vaccination and Goodstart did not view them as providing a medical exemption to the mandatory vaccination policy.

Decision

The FWC rejected Goodstart's argument that Ms Barber's refusal to receive a vaccination meant she lacked capacity to perform her role, finding it was not an inherent requirement of Ms Barber's role as an early childcare educator to be vaccinated.

However, the FWC nonetheless upheld Ms Barber's dismissal as not harsh, unjust or unreasonable on the basis that Ms Barber's refusal to comply with the lawful and reasonable direction of Goodstart to be vaccinated against influenza was a valid reason for dismissal.

In reaching this conclusion, the FWC found that, in light of Goodstart's health and safety obligations to both staff and children and the particular health risks in childcare centres, Goodstart's mandatory influenza vaccination policy was reasonable and lawful. Further, the policy was appropriately adapted as it allowed for a medical exemption. Ms Barber was provided with a lengthy period to provide that medical evidence, however the evidence she did provide did not establish that the vaccination would create a medical risk for her.

The FWC emphasised that this decision was specific to the childcare industry and the medical evidence provided by Ms Barber, and that it should not be taken as guidance as to the implementation of mandatory vaccination policies in workplaces more generally.