Employment & Safety Update – 29 April 2021

Mandatory vaccination considered reasonable and lawful direction by FWC

Overview

We recently published an article on mandatory vaccinations in Australian workplaces arising out of the COVID-19 pandemic, which you can read here. That article concluded that there were only limited circumstances where a vaccination could be mandated which included where it was “lawful and reasonable” to direct employees to do so.

In the recent case of Bou-Jamie Barber v Goodstart Early Learning, the Fair Work Commission (FWC) has dismissed an application for an unfair dismissal remedy made by a childcare worker who was dismissed from her employment after she refused to get a mandatory flu vaccination.

This decision confirms that whether a direction to be vaccinated is “lawful and reasonable” must be assessed on a case-by-case basis.

What were the facts of Bou-Jamie Barber v Goodstart Early Learning [2021] FWC 2156?

Goodstart Early Learning (Respondent) is a not-for-profit organisation providing childcare and early learning services across Australia.

Ms Barber (Applicant) held various roles with the Respondent since commencing her employment with them in 2006.

In April 2020, the Respondent implemented a mandatory vaccination policy, requiring that all staff must receive the influenza vaccination unless they have a medical condition which makes it unsafe for them to do so.

In August 2020, the Applicant’s employment was terminated on the basis she lacked capacity to perform an inherent requirement of the position due to her failure to get the influenza vaccination.

The Applicant made an application for an unfair dismissal remedy under s 394 of the Fair Work Act claiming that she had a medical condition that exempted her from the requirement to get the influenza vaccination.

What did FWC decide?

FWC found that the Respondent’s requirement that the Applicant be vaccinated to be lawful and reasonable in the circumstances.

As to the specific circumstances of the Applicant’s employment, the FWC said that the Applicant worked within an industry where safety is of paramount importance and this was paramount in determining the reasonableness of mandatory vaccinations. FWC said that children represent a particularly vulnerable group and held that it was reasonably necessary in the circumstances for the Respondent to have clear and stringent procedures to enhance and ensure safety. This was to be balanced against any risks to health for the relevant workers, hence the only exemption to the requirement to be vaccinated was where there was a medical condition which made it unsafe. As to that, FWC was critical of the Applicant’s lack of medical evidence. Multiple doctors refused to provide the Applicant with a statement that she should be exempt from vaccination because it was unsafe. The Applicant received ample time to seek medical advice as to any condition that prevented her from getting the vaccination, yet did not produce any evidence that clearly supported her position. As a result, the FWC was not satisfied that the medical exemption should have applied to the Applicant.

Does this decision apply to all workplaces?

No.

Despite this case, it is important to note that the ruling is specific to the facts of this case and there remains limited circumstances where an employer can direct an employee to get a vaccination.

The FWC addressed the ‘unnaturally high’ curiosity surrounding vaccinations and was careful to ensure that this decision is not applied as a ‘general principle’. FWC even stated that the effect of the decision may not even apply to all of the Respondent’s employees, as each employee undertakes different roles in different circumstances which must always be taken into account.

As such, the advice needs to remain that each matter is assessed on the individual facts. Current best practice remains for employers to ‘recommend’ rather than ‘require’ vaccinations, and lead by example.

If you have any queries about this update, please contact:

Joe Mullavey
Principal
M: 0416 794 061
E: jmullavey@pageseager.com.au

Caleb Devine
Lawyer
T: (03) 6235 5125
E: cdevine@pageseager.com.au

Published: 29 April 2021

Copyright © 2020 Page Seager. Privacy Statement Privacy Policy