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How mandatory are mandatory vaccines in the workplace?

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Author: James Sanders, Senior Associate

The issue of mandatory vaccinations in the workplace has been the subject of a number of recent Fair Work Commission cases.  We take this opportunity to examine three unsuccessful unfair dismissal applications launched by applicants who had been dismissed from their employment following their refusal to vaccinate .

Case 1:  Barber v Goodstart Early Learning Limited [2021] FWC 2156

In Barber v Goodstart Early Learning Limited, the applicant was a lead educator and had been employed by Goodstart for 14 years.

On 17 April 2020, Goodstart introduced a new policy which required employees to obtain the influenza vaccination in 2020 to continue employment.

Goodstart implemented the policy on the basis that their business was a high-risk workplace due to the inherent risk factors in a childcare workplace, including close contact between workers and children and children often falling ill due to having underdeveloped immune systems and poor hygiene.

Ms Barber stated that due to her history of ‘chronic auto immune disease and coeliac’ paired with her ‘sensitive immune system’ she had opted to live a chemical free life and did not want to compromise her health for the flu vaccine.

Ms Barber also argued that that the requirement to obtain the vaccination constituted assault and battery.

Ms Barber was refused a medical exemption by a number of doctors and, as a result, it was decided that she did not have legitimate medical reasons for not obtaining the vaccine.

Goodstart dismissed Ms Barber on the basis that she did not “satisfy an inherent requirement of [her] role (that [she] must hold a current flu vaccination)”.

The FWC acknowledged that while the implementation of mandatory vaccinations may feel threatening to employees to either consent to the vaccination or face termination, this is not the same as the threat of forcible vaccination. Therefore, the FWC did not accept that Goodstart had occasioned in ‘assault and battery’.

The FWC made the following further findings in relation to the termination of the employee’s employment:

  • The policy, insofar as it mandated that the employee be vaccinated against influenza, was reasonable and lawful;
  • The employee was required to comply with the policy, either as an express condition of their contract or an implied obligation at common law;
  • The employee failed to present any valid medical exemptions for not being able to receive the vaccine;
  • Obtaining the vaccination did not constitute an inherent requirement in the employee’s role;
  • The employee did not lack capacity to perform their role; and
  • The employee’s refusal to obtain the vaccine constituted a failure to follow a reasonable and lawful direction of her employer.

As a result, the FWC upheld the employee’s dismissal on the basis that she failed to follow a reasonable and lawful direction of her employer.

The FWC concluded their judgement with the following statement:

“The policy was a reasonable one and the Applicant chose not to comply. No medical exemption was substantiated and accordingly, the Applicant’s employment came to an end. I am not satisfied that is unfair. The application is dismissed. I order accordingly.”

Case 2:  Glover v Ozcare [2021] FWC 231 and 2989

In Glover v Ozcare, the applicant was a 64-year-old Aged Care Assistant providing care in patient’s homes.

For 10 years, Ms Glover stated on an Ozcare Employee Influenza Vaccination Declination Form that she could not receive the flu vaccine as a result of having adverse reactions to a flu vaccination in the past.

In early 2020, Queensland’s Chief Health Officer issued a directive that employees could not enter residential aged care facilities from 1 May 2020 without having had the flu vaccination, and as a result Ozcare implemented a mandatory flu vaccination policy.

Due to Ms Glover’s inability to obtain the flu vaccination, Ozcare dismissed Ms Glover on the basis that she could not undertake her duties unless she was vaccinated, in accordance with the Chief Health Officer’s directive.

In defending the unfair dismissal application, Ozcare submitted that the mandatory flu vaccination policy was as a result of the COVID-19 pandemic and argued that the dismissal was not at their initiative.

Commissioner Hunt, at a jurisdictional hearing on the question of dismissal, found that the dismissal was at the initiative of the employer and therefore the case was to be heard on its merits. In doing so, Commissioner Hunt stated:

“I consider it suitable to note that there is much discussion around the legality of employers requiring employees to be vaccinated against influenza, in light of the adverse reaction a vulnerable person might have if they have influenza and then contract COVID-19.  It is, of course, a very concerning proposition, and medical evidence to date suggests that such a combination is highly likely to increase the potential fatality of the individual”.

“In my view, each circumstance of the person’s role is important to consider, and the workplace in which they work, in determining whether an employer’s decision to make a vaccination an inherent requirement of the role is a lawful and reasonable direction.”

 “It is not inconceivable that come November 2021, employers of men engaged to play the role of Santa Clause in shopping centres, having photos taken around young children, may be required by their employer to be vaccinated at least against influenza, and if a vaccination for COVID-19 is available, that too.”

At the merits hearing, Commissioner Hunt upheld the dismissal and went on to state that the role in question was one where the vaccination status of the employee would ultimately effect those around her and:

“On any plain reading of the Aged Care Direction first issued and later superseded by many further Aged Care Directions until December 2020, it was a lawful requirement to be vaccinated against influenza to enter or remain on the premises of a residential aged care facility unless a vaccination was not available to the person.”

 Commissioner Hunt also noted that Ozcare had liaised with Ms Glover for a period of nearly six months on the issue of her refusal to be vaccinated, in which time Ms Glover had not provided any medical evidence confirming that she was allergic to the vaccine.

Case 3:  Jennifer Kimber v Sapphire Coast Community Aged Care Ltd FWC [2021] FWCFB 6015

In Jennifer Kimber v Sapphire Coast Community Aged Care, the FWC further explored the issue of mandatory vaccinations in the workplace and ‘anti-vaxxer’ notions.

The applicant, Ms Kimber, was a receptionist in a nursing home who was dismissed in 2020 for refusing to get the flu vaccine after it was made mandatory by the New South Wales government.

Ms Kimber claimed she had a severe allergic reaction to a flu shot in 2016 and, as a result, could no longer get the flu vaccine.  This was confirmed with a letter from a practitioner of Chinese medicine to her employer.

In the initial hearing, the FWC upheld the dismissal and stated:

  1. Ms Kimber was unable to perform the inherent requirements of her job if she was not properly permitted to enter or remain at the nursing home without an up-to-date vaccination;
  2. Sapphire Coast acted in an ‘objectively prudent and reasonable way’ in not permitting Ms Kimber to work without an up-to-date vaccination; and
  3. Commissioner McKenna was not satisfied that Ms Kimber had demonstrated any medical contradiction to the vaccination.

Ms Kimber appealed the decision to the Full Bench of the FWC, where the majority rejected her application to appeal and, in doing so, stated that “Ms Kimber held a broader anti-vaccination position” and “We do not intend, in the circumstances of the current pandemic, to give any encouragement to a spurious objection to a lawful workplace vaccination requirement.”

Deputy President Dean in minority dissent indicated that “Blanket rules, such as mandating vaccinations for everyone across a whole profession or industry regardless of the actual risk, fail the tests of proportionality, necessity and reasonableness”.

Ms Kimber has indicated her intention to appeal the most recent decision to the Federal Court.

Employer Take-aways:

These three cases all explore the notions of mandated vaccinations in the workplace and how they are becoming more accepted within the COVID-19 pandemic to ensure public safety.

Whether an employer can mandate vaccines in the workplace is dependent on a number of factors which must be considered:

  1. The industry in which the employer operates and the role the employee undertakes;
  2. Whether the employee can undertake the inherent requirements of their role if they are unvaccinated;
  3. Does the employee have a legitimate reason to not get vaccinated, including religious/medical grounds;
  4. Whether adequate consultation been undertaken with the employee, including whether a written policy exists;
  5. Whether there are reasonable adjustments that an employer can make for employees who do not obtain the vaccine (e.g. working from home, social distancing, alternative roles); and
  6. Whether there is a current Government directive requiring employees in a particular industry to be vaccinated.

The Workplace Law team at MST is able to assist employers with drafting and implementing a written vaccination policy, as well as workplace disputes relating to the issue of vaccinations.

If you have any questions in relation to this article,  please contact us today by email or by phone +61 3 8540 0200.