Mandatory vaccinations – A 'Goodstart' for employer guidance

Who should read this

All employers, human resource managers and in-house lawyers who manage employees.

Summary

Two recent decisions of the Fair Work Commission (FWC) have held that:

an employer was justified in dismissing an employee working in the childcare industry after she refused a “lawful and reasonable direction” to receive a flu vaccination; and
an aged care employer’s dismissal of a receptionist who refused the flu vaccination was not unfair as the employee was unable to perform the inherent requirements of her job if she could not be permitted to enter the aged care facility.

While the decisions do not directly involve COVID-19 vaccinations (as discussed in our Vaccinations and the workplace article), the decisions provide further guidance to employers on when they can require employees to be vaccinated.

Key takeaways

An employer policy requiring vaccinations for the flu, or COVID-19, can be implemented as a lawful and reasonable direction, although it will depend on the circumstances;
Vaccination policies implemented by employers operating in higher risk industries such as child care, aged care and health care are more likely to be lawful and reasonable than in other industries, particularly where the policies are supported by Government medical advice;
Employers implementing mandatory vaccination policies should allow for medical exemptions, but employers are entitled to test the validity and bases for applications for medical exemptions;
Employers should continue to provide procedural fairness and cannot assume that a refusal to comply with a lawful and reasonable vaccination policy is, itself, sufficient to justify the termination of employment.

Background – Barber v Goodstart Early Learning

Employers are more frequently asking whether they can require their employees to be vaccinated against diseases for which there is a vaccine. The answer will usually turn on whether a direction to be vaccinated is a “lawful and reasonable direction”.

In Barber v Goodstart Early Learning [2021] FWC 2156, handed down 20 April 2021, the FWC’s Deputy President Lake provided insights into how the question of mandatory vaccinations in the workplace will be answered.

What were the facts in Goodstart?

Goodstart Early Learning (Goodstart) operated an early learning and childcare facility in Queensland.

In April 2020, during the height of the COVID-19 pandemic in Australia, Goodstart introduced an immunisation policy that required all staff to receive a flu vaccination unless they had a medical condition which made it unsafe for them to do so.

An employee, Ms Barber, objected. She subsequently obtained a medical certificate saying that Ms Barber “reports reacting quite badly to the flu vaccination”. She then obtained a second medical certificate saying Ms Barber “is saying she got an allergic reaction when she had the flu vaccine several years ago and afraid (sic) to get it again but we don’t have a record of her reaction in our surgery.” Goodstart requested further information from both Ms Barber and her General Practitioner.

After a lengthy exchange of correspondence, including claims by Ms Barber that she suffered a sensitive immune system, coeliac disease and had suffered an adverse reaction to a flu vaccine 11 years previously, the employer did not consider Ms Barber’s medical certificates sufficient to support her objection.

On 13 August 2020, Ms Barber’s employment was terminated due to her unwillingness and failure to obtain a flu vaccination. She was informed that she did not meet the inherent requirements of her role, specifically, that she hold a current flu vaccination. On termination, Ms Barber was paid her notice. Ms Barber made an unfair dismissal application.

What happened in the FWC?

Ms Barber argued that due to her reported sensitive immune system and medical conditions it would be unsafe for her to have a flu vaccination and that her termination was unfair.

The FWC agreed with Ms Barber that her failure to obtain a flu vaccination did not mean that Ms Barber lacked capacity to perform the inherent requirements of her role. In that regard, Goodstart did not establish that a flu vaccination was an inherent requirement, or essential aspect, of Ms Barber’s role.

Importantly, however, the FWC was satisfied that Goodstart had a valid reason to dismiss Ms Barber because she failed to comply with a “lawful and reasonable direction” to be vaccinated against the flu.

In assessing whether the direction was lawful and, separately, reasonable, Deputy President Lake said:

To be lawful, a direction does not require a positive statement of law endorsing an action; a direction can be classified as lawful provided that it does not involve illegality and “falls reasonably within the scope of service of the employee”; and
What is reasonable is a question of fact; it “does not involve an abstract of unconfined assessment as to the justice or merit of the decision.” The direction must relate to the subject matter of the employment, which is informed by the “nature of the work the employee is engaged to do, the terms of the contract, and customary practices or the course of dealings between the parties.” The policy need only be reasonable, and it is immaterial that a “better” policy may exist.

In finding that the vaccination policy was lawful and reasonable, Deputy President Lake noted:

Goodstart’s legal obligations, particularly in a highly regulated environment in which Goodstart operated and in which safety and quality care are of paramount importance;
Government recommendations from the National Health and Medical Research Council, Queensland Health, New South Wales Health and the Victorian Department of Health and Human Services that people who work with children should get the flu vaccine;
the effectiveness of the flu vaccine that, while variable, reduces the risk of flu infection which can, in some individuals, progress to pneumonia, acute respiratory distress syndrome, central nervous system failure, multi-organ failure, heart attack, and death;
the childcare industry faces unique organisational challenges which make other controls less effective, or impracticable;
the policy allowed for medical exemptions and Goodstart covered expenses associated with the policy; and
the policy did not give rise to the tort of assault, as alleged, because Ms Barber did not receive the vaccination and asserted her right not to be vaccinated.

Deputy President Lake was also not satisfied that Ms Barber presented Goodstart with a valid medical exemption.

Having found a valid reason for dismissal, Deputy President Lake held that he was not satisfied that the dismissal was harsh, unjust or unreasonable in the circumstances. In particular, Deputy President Lake considered that the Applicant had been given ample opportunity to respond to the allegations put to her, including a four-month consultation process to determine whether the Applicant had a valid medical exemption. As such, the Applicant’s unfair dismissal claim was dismissed.

Background – Kimber v Sapphire Coast Community Aged Care Ltd

On a similar note to the Goodstart decision, Commissioner McKenna handed down a decision on 29 April 2021 in Jennifer Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWC 1818. Commissioner McKenna upheld Sapphire Coast Community Aged Care Ltd’s (Sapphire Coast) dismissal of a receptionist from a high-care nursing home in July 2020 over her refusal to comply with NSW public health orders that no one must enter such a facility without an up-to-date influenza vaccination.

In March and June 2020, the NSW Minister for Health and Medical Research made a Public Health Order directing that a person must not enter or remain on the premises of a residential aged care facility if the person does not have an up-to-date vaccination against influenza, if the vaccination is available to the person (Orders). By reason of the Orders, Sapphire Coast was not permitted to allow Ms Kimber to work at Imlay House unless she had a vaccination, absent one of the specific exemptions in the Orders.

Ms Kimber provided a letter from a practitioner in Chinese medicine indicating Ms Kimber ‘would prefer to not have the flu vaccination’ and a letter of support from a general practitioner stating she ‘has a medical contraindication to the Influenza [sic] Immunization. She has had a severe allergic reaction to the flu shot in the past and has been advised not to have it again.’

Sapphire Coast stood Ms Kimber down and ultimately dismissed her after she twice attended work while unvaccinated and on leave, informing her it required her to have the vaccination unless she satisfied an exemption in the Orders, and the failure to be vaccinated meant she could not fulfil her role’s inherent requirements.

What was the outcome?

Commissioner McKenna found that Ms Kimber was unable to perform the inherent requirements of her job if she was not properly permitted to enter or remain at Imlay House absent having an up-to-date vaccination. Sapphire Coast acted in an ‘objectively prudent and reasonable way’ in not permitting Ms Kimber to work within Imaly House without an up-to-date vaccination. Commissioner McKenna was not satisfied that Ms Kimber had demonstrated any medical contraindication to the vaccination. On this basis, Ms Kimber’s dismissal was found not to be harsh, unjust or unreasonable.

Takeaways

Deputy President Lake in Goodstart cautioned that the decision should not be interpreted as an approval of mandatory vaccinations more broadly. While that is true, the principles are relevant.

The key takeaways are:

An employer policy requiring vaccinations for the flu, or COVID-19, can be implemented as a lawful and reasonable direction, although it will depend on the circumstances);
Vaccination policies implemented by employers operating in higher risk industries such as childcare, aged care and health care are more likely to be lawful and reasonable than in other industries, particularly where the policies are supported by Government medical advice;
Employers implementing mandatory vaccination policies should allow for medical exemptions, but employers are entitled to test the validity and bases for applications for medical exemptions;
Employers should continue to provide procedural fairness and cannot assume that a refusal to comply with a lawful and reasonable vaccination policy is, itself, sufficient to justify the termination of employment.

While these are the first FWC decisions on mandatory vaccinations in a COVID-19 environment, they will not be the last.

For more information

For further information on any of the issues raised in this article, please contact Tim Longwill, Amber Sharp or Nathan Roberts.

Many thanks to Emily Capener and Lauren Trickey for their contribution to this article.