Australia: Mandatory workplace vaccination: The current state of play

Mandatory Workplace Vaccination: The Current State of Play

As the Covid-19 vaccination process slowly but surely proceeds, the issue of mandatory workplace Covid-19 vaccination is increasingly coming under consideration.

Two recent Fair Work Commission (FWC) unfair dismissal cases, relating to refusals by employees to have flu vaccinations, offer some useful insights into the approach that will likely be adopted by the FWC (and other tribunals and courts) to the issue of mandatory workplace Covid-19 vaccination when such cases inevitably arise.

These cases are Ms Bou-Jamie Barber v Goodstart Early Learning [2021] FWC 2156(Barber)andJennifer Kimber v Sapphire Coast Community Aged Care Ltd[2021] FWC 1818(Kimber). They were both handed down in April 2021. The former is a decision of Deputy President Lake and the latter is a decision of Commissioner McKenna.

In both cases, the dismissals of employees who had refused flu vaccination were found to be not unfair. As will be canvassed further below, that does not mean, however, that employers will always be able to direct employees to have a flu vaccination. The circumstances of both the employer and employee, as well as any applicable government health orders or guidance, will be relevant.

The main points arising from each case that are likely to be relevant to mandatory workplace Covid-19 vaccinations are set out below (although with an important caveat in Barber).

A Proper Basis for an Employer Direction or Requirement

Employers have a right to issue 'lawful and reasonable' directions to employees.

As such, in order for an employer to be able to take disciplinary action against an employee for not complying with a direction to have a vaccination, an employer will need to be able to show that the direction was 'lawful and reasonable'.

In Barber, the Respondent employer, Goodstart Early Learning(Goodstart), was involved in the provision of child care services.

Deputy President Lake noted (at paragraph 315):

"In considering what is reasonable, it is important to give consideration to the various statutory obligations that Goodstart has in performing its undertaking. It is apparent that these will impact how Goodstart must conduct itself."

After examining the various WHS obligations of Goodstart, including those specifically relating to control of infectious disease, Lake DP noted (at paragraph 320):

"Goodstart operates within an industry which is highly regulated and where safety is of paramount importance. Children represent a particularly vulnerable group who do not have the same faculties and capabilities as adults. The presence of targeted legislation highlights that fact. As a matter of common sense, this legislation reflects the concerns that parents have for the safety of their children. Given this environment, it is not only logical but necessary in the circumstances for Goodstart to have clear and stringent procedures in place to enhance and ensure safety."

In determining whether the direction was reasonable, Deputy President Lake looked at a range of matters including: government recommendations; the need to ensure safety and welfare; control methods (which were found to be difficult to implement given the age and lack of maturity of children in care - hence the importance of employee vaccination as a control measure); whether the vaccination policy was reasonably and appropriately adapted (taking account of medical exemptions); union consultation (which was given little weight); and implementation (including ample time to achieve compliance or raise an objection).

Deputy President Lake concluded that the employer requirement to be vaccinated was reasonable (at paragraph 346):

"Goodstart operates within a highly regulated environment, which creates statutory obligations beyond that of a normal employer; safety and quality care are of paramount importance and this is the environment in which Goodstart's policy must be scrutinised. The childcare industry faces unique organisational challenges which make other controls less effective, or impracticable. I am satisfied that it is reasonable for a child care provider to mandate flu vaccination for those staff who deal with children on such a regular basis, and in such close proximity. While the policy requires mandatory vaccination, it does allow for medical exemptions and Goodstart covered the expenses associated with the policy and provided extended time frames for Ms Barber to gain compliance. I am satisfied that 'a reasonable employer, in the position of actual employer and acting reasonably, could have adopted the policy'."

He then considered whether the direction was 'lawful'. It was found to be so, with a submission from the Applicant that mandatory vaccination could constitute an assault or battery emphatically dismissed.

In Kimber, the Respondent employer was involved in the provision of aged care services.

Interestingly, in this decision, Commissioner McKenna held that there had not been a 'within-terms direction' to the Applicant to have a flu vaccination. In this regard she stated (at paragraph53):

"I find the respondent did not, at any time, give any within-terms "directions" to the applicant to have a flu shot. The evidence simply does not support a conclusion there was any written or verbal direction given to the applicant in such respects by Mr Sierp, Ms Main or anyone else associated with the management of the respondent (let alone 'multiple directions') - and this is so notwithstanding, for example, what the applicant wrote in her letter dated 12 May 2020 to Mr Sierp asserting she had been given such a direction."

In any event, Commissioner McKenna noted (at paragraph 54):

"Although no directions were given by the respondent to the applicant to have a flu shot, equally, the respondent nonetheless firmly communicated to the applicant (and to its employees generally) that having an up-to-date flu shot was necessary for attendance for work at Imlay House."

Commissioner McKenna concluded (at paragraph57):

"It seems to me that if a direction in fact had been given by the respondent to the applicant to have a flu shot, any such direction would not only have been lawful it would have effectively reflected what in fact was the law as it applied in 2020 concerning employees working within NSW residential aged care facilities (subject to the exemptions within the PHOs); as a corollary, any such direction would not only have been lawful, but also reasonable."

Having considered the issue of direction, Commissioner McKenna then turned to whether the Applicant could have performed the inherent requirements of her position without a flu vaccination, answering that question in the negative (at paragraph 59):

"The applicant was unable to perform the inherent requirements of her job if she was not properly permitted to enter or remain at Imlay House absent having an up-to-date flu shot. That is, if the applicant could not enter Imlay House, she could not perform the (principally) receptionist role and other clerical inherent requirements of her position. Moreover, although the applicant mentioned in her cross-examination that she could have worked from home, there was no evidence the applicant made any application to the respondent to perform from home any of the other clerical and/or administrative aspects of her job (and nor was there any evidence the respondent considered non-receptionist duties on a work-from-home basis as an option). The applicant's case was that she could attend work at Imlay House to perform the inherent requirements of her job but was prevented from doing so by the respondent-and later unfairly dismissed by the respondent-based upon the erroneous failure of the respondent to accept Dr Mackay's first Letter of Support, Dr Mackay's second Letter of Support and, particularly, the IVMC Form with Dr Mackay's certification. The applicant's case contended for a conclusion by the Commission that as the applicant had provided to the respondent the IVMC Form the exclusion of the applicant from her Imlay House workplace was without a proper foundation and the dismissal lacked a valid reason - but I have accepted the submissions for the respondent in such respects in preference to those for the applicant."

Interestingly, inBaker, Deputy President Lake did not find that vaccination was an inherent requirement of the position of the Applicant. At paragraph 388 he stated:

"However, ensuring reasonable care and skill is not the same as stating that it is an essential requirement to be vaccinated. To that end, it is important to distinguish between an essential element and the means through which compliance with that essential element occurs. Even if being vaccinated fulfils the Respondent statutory obligation it does not follow that vaccination itself is essential - being vaccinated does not in its nature impact how the Applicant performs her role. As stated in Christie, it is pertinent to examine the tasks performed, as the capacity to perform those tasks inform what is an inherent requirement. I am not satisfied that being vaccinated changes the capacity of the Applicant to perform the tasks that make up the role. It may change the means through which the Applicant perform those tasks, but it is not the case that her capacity is limited."

So, in Kimber, there was no direction (although a direction, had it been made, would have been lawful and reasonable) but vaccination was an inherent requirement.

In Baker, vaccination was found not to be an inherent requirement but there was a lawful and reasonable direction to be vaccinated.

These different approaches to the same issue manifested in the submissions in Baker, with the arguments for the Applicant focused on inherent requirements and capacity, and the arguments for the Respondent focused on lawful and reasonable directions, leading to this lament from Deputy President Lake (at paragraph 294):

"The totality of the Respondent's arguments regarding capacity are a rebuttal of the authority presented by the Applicant. While a detailed analysis is provided of what is reasonable and lawful, no stipulation is given by the Respondent as to what inherent requirement the Applicant cannot perform, nor what the proper construction of the law surrounding capacity is. The Applicant, in reliance on the reason for dismissal being alack of capacity, presented detailed grounds as to the fact that she could perform the inherent requirements of the role. However, somewhat unhelpfully, the Applicant does not in any great detail rebut the proposition that the vaccination policy is not reasonable and lawful."

Medical Exemptions

In both Barber and Kimber the FWC found that the Applicants had not established that they fell within the medical exemptions provided for in the respective employers' policies. If an employee is to argue they cannot be vaccinated on medical grounds, it is incumbent on them to present cogent medical evidence to that effect.

In Barber, at paragraph 360, Deputy President Lake noted:

"Ms Barber failed to produce an adequate medical exemption to the policy. Her argument at its strongest consists of a sensitive immune system, that she suffers from coeliac disease and that she alleges to have had a reaction in the past."

He elaborated upon this at paragraph 369:

"On the Applicant's own account, multiple doctors refused to provide her a statement that she should be exempt from vaccination. In a scenario where the cost of visiting medical practitioners was covered by the Respondent, there was no barrier to collecting this information, if it existed. In the absence of that evidence, it is unclear how I, or Goodstart, could be satisfied that there was valid ground for a medical exemption. The Applicant was provided ample time to seek medical opinions, and what she produced was evidence of coeliac disease, vague unsubstantiated accounts of an allergic reaction that was not anaphylaxis, and a statement that she had a sensitive gut, which is not known to be a medical condition. None of the above satisfies me that a medical exemption should have been granted in the circumstances."

In Kimber, the Applicant contended that she had suffered a medical condition as a result of receiving a flu vaccination in 2016. Commissioner McKenna rejected this, noting the importance of evidence to support a medical exemption (at paragraph 72):

"I reiterate that nothing in this decision is to be taken to involve any hint of disrespect to the applicant and what she has described as to the condition or her concerns about having a flu shot. The applicant's case was presented as one involving a severe reaction to the 2016 shot as the reason not to have a flu shot in 2020. A difficulty in the applicant's case, however, is that there was no medical evidence whatsoever of a contemporaneous diagnosis that the condition as described was attributable to the 2016 flu shot. There was no evidence as to the identity of which doctor or doctors the applicant consulted in 2016-17. There was no evidence about which doctor or doctors made the diagnosis that the condition was attributable to the 2016 flu shot. There was no evidence of any specialist examination or specialist treatment in 2016-17. There was no evidence of any formal report being made (by anyone) to any organisation about what was described by the applicant as such a severe reaction to a workplace-administered flu shot."

Procedural Fairness

Both cases confirm the requirement that employers need to afford procedural fairness to employees before deciding to terminate employment. It is not simply a matter of an employee refusing a direction to be vaccinated one day, and the employer terminating their employment the next. (The employers in Baker and Kimber were found to have satisfied the necessary procedural requirements.)

In the context of mandatory vaccination this includes:

• giving an employee the opportunity and time to object to vaccination, and to procure and provide any available medical evidence to support such an objection (including evidence substantiating a specified contraindication in any government order or vaccination policy);
• carefully considering any material provided by the employee (particularly medical evidence);
• exploring alternative methods that might be available to perform the work that might be available without vaccination (even though the face-to-face nature of the roles ordinarily subject to a requirement to have a vaccination will militate against the adoption of different modes of performing the inherent duties).

The FWC Caution

In Baker,Deputy President Lake issued some words of caution about the risks of relying on that decision (dealing with flu vaccination) as a basis for speculating about the approach the FWC might adopt to deal with mandatory workplace Covid-19 vaccination.

At paragraph 13, Lake DP stated:

"I note that curiosity surrounding vaccination is at an unnatural high; protection against COVID-19 is becoming a tangible reality for the population and guidance surrounding how this will be administered in the workplace is scarce. As will be seen from the highly detailed evidence below, this decision is relative to the influenza vaccine in a highly particular industry. While this may seem obvious to most, given the climate we find ourselves in, it feels appropriate to make this declaration."

A further caution is set out at paragraph 394 of the judgment:

"In an attempt to limit a maladroit application of these findings in varied circumstances, I make the following remark: it is beyond the scope of this decision to consider whether the conclusions above extend even as far as the entirety of the Respondent's business, as the role each employee performs in fulfilling the Respondent's undertaking may differ. An attempt to extrapolate further and say that mandatory vaccination in different industries could be contemplated on the reasons above would be audacious, if not improvident."

And, for abundant caution, Lake DP again noted (at paragraph 430):

"Employer mandated vaccination is a topical question in the current pandemic. As I have said above, this decision relates specifically to the influenza vaccination in a childcare environment, where the risks and concerns are distinct. Goodstart's enterprise revolves around the care of children, who are by nature more vulnerable and in general have poor hygiene standards. This can make viral spread easier and potentially more dangerous than in other settings."

With respect to Deputy President Lake, while the Barber decision relates to a very specific set of circumstances, it is nevertheless an illustration of the approach the FWC adopts in applying established principles in unfair dismissal law to the vexed question of mandatory vaccination. As such, it is a decision of some value in gleaning insight into what the FWC will likely do in the future when it has a Covid-19 vaccination case before it. The same is true of Kimber. What Baker and Kimber are not, however, are determinative precedents of wide application that are fatal to the prospects of an employee who refuses a mandatory workplace vaccination (whether that be a flu or Covid-19vaccination) - that would be a lazy, misconceived conclusion.

The Mandatory Covid-19 Workplace Vaccination Complications

Employers contemplating mandatory workplace vaccinations are presently facing two general complications that have arisen recently. The effect of these complications is that for all but some relatively small and confined categories of employees (usually on the frontline of dealing with the pandemic who were eligible to receive early vaccination) the issue of mandatory workplace Covid-19 vaccination is likely to remain hypothetical for some time to come.

The first is that the vaccination roll-out in Australia has been slower than initially anticipated. This is, in part, due to the second complication (the AstraZeneca issue) discussed below. In short, an employee cannot comply with a direction to have a Covid-19 vaccination if the vaccines are not readily available to that employee.

The second will be more contentious and possibly difficult to address. The federal government's recommendation - that those under 50 should have the Pfizer vaccine rather than AstraZeneca - could give some objective weight to the notion of 'vaccine hesitancy' when mandatory workplace Covid-19 vaccination comes to be considered by the FWC. The assumption upon which some earlier analysis on this issue was predicated, that the safety of Covid-19 vaccinations would not seriously be in issue, has been somewhat disturbed by this recommendation, even though the objective statistical risk of adverse effects remains very small. While both the Baker and Kimber decisions suggest some more novel anti-vaccination arguments (such as mandatory workplace vaccination constituting assault) will likely be given short shrift, an employee refusing vaccination will be now able to cite the government's own cautionary recommendation about the AstraZeneca vaccine, even if the recommendation might not specifically apply to the employee relying upon it (such as if the employee is over 50).

Safe Work Australia and the Fair Work Ombudsman

Both Safe Work Australia and the Fair Work Ombudsman have offered guidance on mandatory workplace Covid-19 vaccination.

The guidance from the Fair Work Ombudsman presently states:

"In the current circumstances, the overwhelming majority of employers should assume that they can't require their employees to be vaccinated against coronavirus. The Australian Government's policy is that receiving a vaccination is voluntary, although it aims to have as many Australians vaccinated as possible."

The position of Safe Work Australia (which relates to the application of WHS laws to the issue) is:

"Under WHS laws, you have a duty to eliminate or if not possible, minimise, so far as is reasonably practicable, the risk of exposure to COVID-19 in the workplace. You may not be able to completely eliminate the risk of workers being exposed to COVID-19 while carrying out work. However, you must do all that is reasonably practicable to minimise this risk and vaccination should be considered as one way to do so in the context of a range of COVID-19 control measures.

It is unlikely that a requirement for workers to be vaccinated will be reasonably practicable."

This view of Safe Work Australia is based, in part, on the current limited availability of vaccines.

A few observations about the guidance from these agencies:

Conclusion

As the vaccination roll-out continues, it is very likely the issue of mandatory workplace Covid-19 vaccination will cease being theoretical and become an area of active disputation in courts and tribunals (especially the FWC). It has already been reported (in April 2021) that some Victorian quarantine staff were stood down on full pay after refusing Covid-19 vaccination. An interesting test as to the scope of the prerogative of employers to mandate such vaccinations will be if those in retail or hospitality seek to do so - employees in those sectors aren't (usually) engaged in rendering care or treatment but are nevertheless dealing with the general public, sometimes in very large numbers. While the government has emphasised the voluntary nature of vaccination as a (sound) strategy to encourage acceptance of it, the applicable legal principles might provide support to employers wanting to take a firmer stance for their own organisations.

For further information please contact:

Michael Byrnes, Partner
Phone: +61 2 9233 5544
Email: mjb@swaab.com.au

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.