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The Fair Work Commission has recently handed down its decision in Barber v Goodstart Early Learning, concerning an unfair dismissal application from an employee dismissed for refusing to have a flu vaccine.

The case had to decide whether it was lawful and reasonable for the employer to enforce a mandatory vaccination policy and whether it could validly dismiss an employee for failure to comply with it. The case contains useful guidance for employers considering whether to mandate vaccines for flu or COVID-19 in their workplace.

 

What was the background to the case?

In April 2020 Goodstart Early Learning (childcare and early learning provider), introduced a mandatory immunisation policy, requiring all staff to receive the influenza vaccination. There was an exception for employees who had a medical condition making it unsafe for them to have the vaccine.

Ms Barber objected to the vaccine on medical grounds on the basis that she had a “sensitive immune system” and claimed she had previously experienced adverse effects after receiving a flu vaccination.

Ms Barber presented a medical certificate to support her position, but Goodstart determined the information contained within it was insufficient. Ms Barber was subsequently dismissed for breaching the immunisation policy and she made a claim for unfair dismissal.

 

What did the FWC decide?

The FWC found that the mandatory immunisation policy was lawful and reasonable. It came to this view on the basis that Goodstart had a duty to protect the health and safety of its employees and the children under its care. In particular it found that:

  • several state health bodies have recommended flu vaccinations for people working with children;
  • flu symptoms could be severe, especially in children, who are “at an increased risk of morbidity and mortality”;
  • flu vaccinations are effective at reducing the risk of infection to children and staff;
  • alternative methods of managing risk, like social distancing, are not always available to childcare workers; and
  • trade unions were supportive of Goodstart implementing the policy.

 

The FWC further found that Ms Barber’s medical evidence was vague and did not adequately demonstrate that Ms Barber was at risk from the flu vaccine. Accordingly, it found that a dismissal based on Ms Barber’s refusal to have the vaccine was not unfair.

 

Lessons for employers

The case will be of interest to employers considering implementing mandatory flu and COVID-19 vaccines.

Whilst the lawfulness of any such policy will turn on the facts of each case, the decision supports the view that mandatory immunisation policies can be lawful in some circumstances. In the Goodstart case, important factors included the facts that: people working in the childcare sector are at an increased risk of infection, and the risk of childcare workers transmitting the flu virus to children can have severe effects on the children.

The case did not comment on whether a business where there are no such “special” factors would be able to lawfully implement a mandatory vaccine policy. It should be noted that both SafeWork and the Fair Work Ombudsman have suggested that most employers will not be able to require employees to be vaccinated against COVID-19.

If an employer is considering implementing such a policy it will need to consider whether it will be able to demonstrate immunisation is necessary to safeguard the health and safety of its employees and/or other people affected by its operations (e.g. customers, etc).

Any such policy will need to take account of employees who may wish to object to the vaccine due to health or religious reasons. There could be risks of claims under discrimination law if their interests are not adequately considered.

 

Need further advice?

If you need further advice on this issue or to access a vaccination/immunisation policy please contact EI Legal or Employment Innovations.

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