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No Jab, No Job: FWC approves compulsory workplace vaccine policy

05 May 2021

An employee's termination for refusing a vaccination has been upheld by Deputy President Nicholas Lake in Australia's most authoritative case to date.

In the context of Australia's COVID-19 vaccination rollout, this timely decision serves as useful guidance for employers who may have to balance individual choice with the collective safety of their workforce.

Background

The employer, Goodstart Early Learning, operates childcare centres across Australia. In April 2020, Goodstart introduced a free influenza vaccination program under the following policy:

"All staff must be immunized for the Influenza Vaccination unless they have a medical condition which makes it unsafe for them to do so".

Ms Bou-Jamie Barber was dismissed in August 2020 following her failure and unwillingness to participate in the program. Ms Barber refused the vaccination on purported medical grounds, having been diagnosed as a coeliac and believing herself to have a 'sensitive immune system'. She further submitted that she had an allergic reaction to a flu vaccination 11 years prior, albeit without supporting medical records.

Inherent requirement

Goodstart was unsuccessful in its submission that the vaccination was an inherent requirement of Ms Barber's position. The Deputy President held that being vaccinated affected the worker's means but not her capacity to perform the tasks that made up her role, as vaccination is not 'permanently and inseparably a quality or attribute of the role of educator'. While there are inherent requirements of any position to perform your duties with reasonable care, skill and without endangering the health of others, the Deputy President noted that vaccination 'is an avenue to fulfil that duty', but is not essential.

Reasonable management direction

In reviewing the duties placed on the employer by both the WHS Act and legislation specific to the vulnerabilities of the childcare industry, the Deputy President considered it 'not only logical but necessary in the circumstances for Goodstart to have clear and stringent procedures in place to enhance and ensure safety'. One such duty was to assess and act upon the risks presented to staff and children by infectious diseases.

Government guidance provided that best industry practice was to vaccinate employees who work with children. The Deputy President noted that recommending and providing vaccinations to the workforce was plainly lawful and reasonable in meeting these standards, but dismissals for non-compliance must involve a thorough decision making process.

Goodstart replicated their risk assessment process in submissions to the Commission: PPE, social distancing and isolation barriers are alternative methods of virus control, however, in a setting where children are unlikely to follow these systems, they are not practicable and do not sufficiently reduce the risk of transmission. Implementing such a suite of secondary control measures would be unreasonably burdensome for Goodstart's 671 national centres.

Despite being afforded four months to satisfy the employer of her medical exemption, the employee failed to provide any medical evidence that she was at any increased health risk by receiving the flu vaccine. Indeed, medical evidence before the Commission could not substantiate Ms Barber's stated allergy and found that her only diagnosis of coeliac disease would not be negatively affected by receipt of the vaccine.

The dismissal of Ms Barber was found to be in line with the employer's reasonable vaccination policy and her application was dismissed.

Lessons for employers

The FWC was careful to emphasise that one unsuccessful unfair dismissal case has not created a blanket rule: '[a]n attempt to extrapolate further and say that mandatory vaccination in different industries could be contemplated on the reasons above would be audacious, if not improvident.'

Barber v Goodstart was made in the context of an industry with its own peculiarities and vulnerabilities, and an ex-employee with an idiosyncratic focus on naturopaths and an undisrupted gut biome.

What is clear is that if presented with the legitimacy of a compulsory vaccination policy, courts and tribunals will scrutinise the processes informing the employer's decision. The environment surrounding the employer's operations is 'pivotal' in determining whether such a direction is reasonable and lawful. It is therefore crucial to have documented the risk assessment process where any policy is contemplated, and to handle specific worker refusal delicately and on a case-by-case basis.

Barber v Goodstart loosely follows the non-authoritative cases of Arnold v Goodstart Early Learning [2020] FWC 6083 and Glover v Ozcare [2021] FWC 231, both of which comment on maintaining management prerogative in the context of workplace vaccinations. Glover went on to suggest that policies aimed at stemming the transmission of infectious diseases may be further legitimised in the context of the COVID-19 pandemic.

The more recent case of Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWC 1818, involving an aged care worker refusing a flu vaccination, also upheld the employer's dismissal in accordance with its policy. The worker had supplied a medical certificate declaring that she was allergic to the vaccine, despite the providing doctor not having examined her alleged prior reaction. The employer investigated the exemption's legitimacy and reasonably determined the certificate should not be relied on.

As the rollout of the COVID-19 vaccination progresses, guidance may also be offered from governmental authorities on how workplaces should proceed.

Barber v Goodstart Early Learning [2021] FWC 2156

We would like to acknowledge the contribution of Lachlan Thomas to this article.

Further Reading