Fair Work Commission confirms employee was fairly dismissed for refusing to take flu vaccination

A recent decision by the Fair Work Commission, Ms Bou-Jamie Barber v Goodstart Early Learning, has considered whether it was lawful and reasonable for an employer to terminate an employee who refused to obtain a flu vaccination that was directed by the employer.

In this case, the dismissal was valid on the basis that the employee failed to comply with a lawful and reasonable direction of the employer, being a requirement to be vaccinated against the flu. Notwithstanding this outcome, the Fair Work Commission found that the vaccination was not an inherent requirement of the employee’s position. Accordingly, this determination was based on the failure to comply with a lawful and reasonable direction, rather than a failure to meet the inherent requirements of the employee’s position. 

The determination has been long awaited as it is the first of its kind with respect to mandatory vaccination policies. Many employers and employees have been hoping to receive some guidance as to mandatory vaccinations for employees (and in particular the COVID-19 vaccination). However Deputy President (DP) Lake made it clear that this decision is relative to the influenza vaccination in a highly particular industry only. Therefore, it has limited implications on the COVID-19 vaccination requirements.

FACTS 

Ms. Barber, the Applicant, was employed by Goodstart Early Learning as a Lead Educator since December 2006.

On 17 April 2020, the employer introduced a mandatory vaccination policy, which provided that all staff members were required to be vaccinated for influenza unless they have a medical condition which makes it unsafe for them to do so.  

Ms. Barber objected to the vaccination on the grounds that she had a sensitive immune system, a history of chronic auto-immune disease and was a coeliac.

A panel was created by the employer to determine whether an employee had a reasonable excuse for failing to comply with the vaccination requirement and whether it was appropriate to terminate the employee under these circumstances.

The employer determined that the medical certificate provided by the Applicant was not sufficient to support objecting to take the influenza vaccination and on 13 August 2020, the Applicant’s employment was terminated.

DECISION 

When coming to a determination, DP Lake considered the following:

(1) Is the mandatory vaccination requirement lawful and reasonable?

DP Lake found that the policy was reasonable as the employer:

a. had a duty of care under health and safety laws to its employees and children in its care; 

b. there were a number of government recommendations that people working with children should get the flu vaccination; 

c. a number of other controls would be required to be implemented to stop the spread, which are not practical to the industry; 

d. the policy was appropriately adapted and the Applicant had sufficient time to comply with it; and 

e. the employer consulted with the union.

The direction was within the scope of the contract of employment and DP Lake found the requirement for a mandatory flu vaccination to be lawful and reasonable.

(2) Did the Employee present a valid medical exemption?

It was found that the employee failed to produce adequate medical exemption to the policy and that the employer provided the employee with ample time to provide information to support her position.

(3) Does mandatory vaccination constitute an inherent requirement?

It was found that the mandatory vaccination was not an inherent requirement of the role as the employee had successfully completed the role for many years without it.

In summary DP Lake found as follows:

  1. The policy, in so far as it mandates that the employee is required to vaccinated against influenza, was reasonable and lawful; 
  2. The employee was required to comply with that policy, either as an express condition of her contract incorporated by reference or as an implied obligation under common law; 
  3. The employee did not present evidence of a valid medical exemption; 
  4. The vaccination did not constitute an inherent requirement of the employee’s role; and 
  5. The employee did not lack capacity to perform her role.

As a result of the above findings, DP Lake found that although there was not a valid reason for termination relating to the capacity of the employee, there was a valid reason based on her failure to comply with the reasonable and lawful direction of the employer.

KEY OUTCOMES

The findings in this case were focused around a failure to comply with a lawful and reasonable direction from an employer, rather than a failure to perform the inherent requirements of a position. 

It should be noted that this case did not consider whether it is a valid termination if it is found that the vaccination is an inherent requirement of the role and as such, we will need to await further case law in this regard.

It is important to note that DP Lake specifically stated the following in his decision:

  1. It is beyond the scope of this case to consider whether the above conclusions extend to the entirety of the employer’s business as the role that each employee performs may differ; and 
  2. An attempt to extrapolate further and say that mandatory vaccinations in different industries could be contemplated on the above reasons would be audacious.

As a result, it can be concluded that mandating employee vaccinations may not be considered reasonable and lawful in all contexts and specific circumstances must be taken into account. At this stage, we are unaware of any similar cases dealing with the construction industry.

IMPACT ON COVID-19 VACCINATION REQUIREMENTS

This case still provides some general direction with respect to the COVID-19 vaccination in that:

  1. The nature of the industry will affect whether a mandatory vaccination policy is reasonable and lawful and that a mandatory policy may be reasonable where there is a higher risk of serious illness such as in aged care facilities and businesses working within those facilities; and
  2. Requesting a medical exemption will need to be supported by medical advice supporting the medical grounds for the exemption and the fact that an employee thinks the vaccination will be harmful is not sufficient grounds for a medical exemption.

In summary, an employer may implement a mandatory vaccination policy based on its work health and safety obligation and other factors. However, the success of such a policy will need to be considered on a case-by-case basis, taking into consideration the requirements of the specific business. If a business wishes to implement such policy they should consider:

  1. Assessing the risk to both employees and clients and consider whether steps can be implemented to meet their statutory obligations; 
  2. Implementing a policy to help mitigate the impact and spread of certain diseases; 
  3. Implementing a communications strategy informing the employees of the need to be vaccinated and considering whether medical or other grounds for exemption exist; and 
  4. If there are medical or other grounds for the exemption, implementing processes to manage the exemptions and potential review process.

Where you are seeking to implement a policy requiring mandatory vaccinations for your employees, we strongly suggest taking legal advice first. 

Disclaimer: This summary is a guide only and is not legal advice. For further information on the employers’ legal obligations, call NECA Legal (WA) Pty Ltd on (08) 6241 6129 or email necalegalwa@ecawa.org.au.