Mandatory flu vaccination policy: a cautionary tale


31 May 2021


In the recent decision of Barber v Goodstart Early Learning [2021] FWC 2156 (Barber case), the Deputy President of the Fair Work Commission upheld a decision to dismiss an employee for refusing to comply with a direction given to her by her employer to receive an influenza vaccination.

The Barber case has generated ample discussion in the context of the rollout of the COVID-19 vaccination across Australia.  But the outcome should be treated with caution and employers should bear in mind the specific circumstances of that case.

 

Background

Ms Barber was employed by Goodstart Early Learning (Goodstart) as a Lead Educator. Goodstart is a not-for-profit organisation providing early learning and childcare services throughout Australia.

In April 2020, Goodstart introduced a mandatory direction that all staff be vaccinated against the influenza virus, unless they had a medical condition which would make it unsafe for them to do so.

Ms Barber objected to Goodstart’s direction on the basis that she has a sensitive immune system.  Over a period of four months, Ms Barber was afforded the opportunity to present evidence to Goodstart to support her objection to the vaccination.

Goodstart considered that the ambiguous medical certificates she presented did not substantiate her alleged reason for refusing to be vaccinated and proceeded to terminate her employment.

Ms Barber challenged her dismissal by bringing an application in the Fair Work Commission alleging that the dismissal was harsh, unjust or unreasonable within the meaning of section 385 of the Fair Work Act 2009 (Cth).

 

Outcome

In determining Ms Barber’s application, the Deputy President considered, amongst other matters, whether there was a valid reason for her dismissal.

The Deputy President had regard to the following matters in concluding that the mandatory vaccination policy was a lawful and reasonable direction:

  • vaccination is accepted as a superior control measure to control/prevent the spread of viruses;
  • it would be hugely burdensome on Goodstart to implement other control measures that would be as effective as vaccination; and
  • the childcare environment is a particularly unique environment. Children and educators are required to be in close contact with one another numerous times a day, children have weaker immune systems than adults and are therefore more vulnerable to influenza, and other measures to reduce infection risks such as social distancing are not practical in that environment.

Having regard to the inadequacy of the medical evidence presented by Ms Barber in support of her objection to being vaccinated, the Deputy President concluded that Goodstart had a valid reason to terminate her employment by virtue of her failure to comply with the mandatory direction and dismissed the application.

The Deputy President rejected Goodstart’s position that by virtue of not being vaccinated Ms Barber lacked capacity to perform the inherent requirements of her role. 

 

Lessons for employers

The decision should not be relied upon by employers as a green light to introduce mandatory vaccination policies with respect to COVID-19 or vaccinations more generally. The Deputy President expressly noted in his judgment that the decision relates specifically to the influenza vaccine in a highly particular industry where the risks and concerns are distinct. 

The Barber case does not change the position for most employers who may be considering issuing a direction to employees requiring them to be vaccinated against COVID-19.  For most employers, such a direction will not constitute a lawful and reasonable direction and any decision to terminate an employee’s employment for refusing to be vaccinated will create significant risk.  Equally, employers should exercise caution before assuming that a refusal to comply with a lawful and reasonable vaccination policy will, in and of itself, justify a decision to terminate.

 

This article provides general comments only.  It does not purport to be legal advice.  Before acting on the basis of any material contained in this article, we recommend that you seek professional advice.

 

 

Authors:

Paul Dugan, Principal in our Disputes Team

Contact
Email:  pdugan@dmawlawyers.com.au
Direct Telephone:  +61 8 8210 2266

 

Kylie Dunn, Senior Associate in our Disputes Team

Contact
Email:  kdunn@dmawlawyers.com.au
Direct Telephone:  +61 8 8210 2286

 

 

The authors would like to thank Jacqui Ballard for her assistance in preparing this article.