The Fair Work Commission ("FWC") has found that an employee who was terminated from her employment for refusing the flu vaccine, was not unfairly dismissed.
Although expressly not providing a blanket authority for employers to mandate vaccinations generally, the decision provides employers with additional clarity around the validity of directions made to employees regarding compulsory vaccinations. While the FWC went to unusual efforts to emphasise that the decision relates to the flu vaccine in respect of a particular industry and set of circumstances, the decision provides further guidance for employers who are considering directing their employees to receive the COVID-19 vaccine.
The employee made an unfair dismissal application following the termination of her employment by her employer, Goodstart Early Learning. Goodstart Early Learning are a not-for-profit organisation, providing childcare and early learning services across Australia.
Goodstart Early Learning introduced a policy in the middle of 2020 which made it mandatory for all staff to be vaccinated against the influenza virus, unless they had a medical exemption which certified that it would be unsafe for them to do so. The employee wrote to Goodstart Early Learning to inform them of her objection a few days after she received an email notifying her that it would be providing free flu vaccinations. Over the course of approximately three months, Goodstart Early Learning sought to discuss the employee's objections with her, and gave her opportunities to provide satisfactory evidence to enable it to determine whether to grant a medical exception to the policy.
The employee continued to refuse the flu vaccine, asserting that she had a sensitive immune system and a history of chronic auto-immune disease and coeliac disease. The employee also alleged that she had an allergic reaction to a flu vaccination 11 years prior, and sought to rely on medical certificates, including one from a doctor which stated that the employee "reports reacting quite badly to Flu Vaccination".
After further correspondence with the employee, including in which the employee stated that a medical doctor had ".refused to write me out a medical document.", Goodstart Early Learning issued the employee with a show cause notice. Goodstart Early Learning formed the view that the employee had failed to satisfy an inherent requirement of her role by not holding a current flu vaccination. The employee was invited to provide a response to Goodstart Early Learning's view before a determination was made regarding her ongoing employment. The employee was dismissed approximately one month later, on the grounds that she did not meet the inherent requirements of her role.
Breach of lawful direction, but not inherent requirement
After reviewing a large volume of materials provided by both the employee and Goodstart Early Learning, the FWC was not satisfied that the employee lacked the capacity to perform the inherent requirements of the role.
However, the FWC was satisfied that the employee had failed to comply with a lawful and reasonable direction given by Goodstart Early Learning by refusing the flu vaccine in contravention of the vaccination policy. The FWC found that the employee had only produced "vague certificates" which attested "nothing substantive" in support of refusing the flu vaccination, and had therefore failed to establish grounds for a medical exemption.
The FWC found that the policy mandating that staff receive the flu vaccine (which accommodated established medical exemptions) was lawful and was within the scope of the employee's employment. The FWC held that the direction under the policy was reasonable and lawful after considering the following factors:
- the employer operated in an industry which was highly regulated and where safety was of paramount importance;
- the employer was subject to targeted legislation concerning the safety of children which necessitated the implementation of clear and stringent procedures to enhance safety;
- the employer already required all of its staff to be vaccinated against whooping cough, measles, mumps and rubella, which were necessary in order for it to receive the Government's subsidy for childcare;
- there was evidence provided that showed various health bodies such as the Victorian Department of Health and Human Services had recommended that people who work with children receive the flu vaccination; and
- without its staff being vaccinated against the flu, the employer would need to implement other controls which would have been impractical or ineffective such as hand hygiene, cough etiquette and supporting individuals who had the flu to stay away from work.
- Refusing (without reasonable excuse) to receive a flu vaccination under a mandatory policy could be a breach of a lawful and reasonable direction.
- It is likely to be insufficient for an employee to merely assert a medical incapacity or to provide vague certificates to establish reasonable grounds for a medical exemption.
- Whether a mandatory flu vaccination is a lawful and reasonable direction will depend on the circumstances specific to each employer, the industry and regulatory environment in which they operate, and the circumstances of the employee.
- Employers who are considering whether to mandate COVID-19 vaccinations for employees must consider their specific operational and business contexts.