We have discussed at length in two articles Can Australian Employers Force An Employee To Get Vaccinated? 3 Considerations From An Employment Lawyer and COVID-19 Vaccinations Are Coming – What Now? 5 Questions For Australian Employers To Consider whether an Employer can direct an employee to get the COVID-19 vaccination for workplace purposes.
In the case of Ms Bou-Jamie Barber v Goodstart Early Learning  FWC 2156 (20 April 2021) (Goodstart Case) the employer was successful in defending an unfair dismissal claim. The dismissal came about because the employee refused to get the flu vaccine (much like the previous Goodstart case of Nicole Maree Arnold v Goodstart Early Learning Limited T/A Goodstart Early Learning  FWC 6083 which also involved a flu vaccine refusal) – this decision is useful for analogy with the COVID-19 vaccines.
In June 2020 the Employer issued a directive for all employees to receive the influenza vaccine. The policy rolled out by the employer did require mandatory vaccinations. The employee objected due to medical grounds namely:
- Vaccine adverse reactions
- coeliac disease
- sensitive immune system
The Goodstart Case looked at 3 main points.
1. Inherent Requirement of the Position
An initial argument by the Employer to terminate the employee was because it was an inherent requirement of the position for the employee to be vaccinated. The Fair Work Commission rejected this argument.
The argument was rejected because the employee had successfully performed the role for a number of years without the need for the vaccine. The Commission went further and said: “it is difficult to see how the policy is not simply seeking to artificially impose an inherent requirement upon her.”
However is the denial analogous with the COVID-19 vaccines. In our view – NO.
Why? Unlike the Goodstart Case the use or non use of the flu vaccine had largely no effect on performing the role. In the current state of the pandemic and arguably for a while longer the need for a COVID-19 vaccine to be utilised may be a requirement to prevent infection to patients (such as the elderly), other employees and in particular in medical or essential worker contexts.
Of course much like any workplace health and safety issue reasonable adjustments will need to be accommodated.
2. Reasonable and Lawful Direction
The Employer also argued that the requirement to take the flu vaccine was a reasonable and lawful direction, primarily through a policy.
Significantly, the Fair Work Commission confirmed that the lawfulness and reasonableness of a direction for an employee to be vaccinated is determined on a number of factors including:
- industry – the nature of the Employer’s industry
- workplace – the state and nature of the workplace
- employee – the role of the employee subject to the direction
- policy or procedure – the roll out of the policy or procedure and the basic tenants that the employee has been notified of the policy
- vaccine – the type of vaccine involved and in some respects the legitimate concerns held around the different types of vaccines (live and/or inactive virus)
The Fair Work Commission in the Goodstart Case considered that in a highly regulated industry, as well as being an employee with high contact with children (and other people such as parents) the direction to take the vaccine was reasonable.
The Commission also noted the considered and cautious approach the Employer took before termination of employment. This included several requests for the employee to provide medical evidence to support the refusal to follow a lawful direction.
3. Workplace Health and Safety and the COVID-19 vaccine
The Federal government has made it clear they will not mandate the COVID-19 vaccine at this time. The Fair Work Ombudsman and Safe Work Australia recently provided guidance notes that the majority employers should not assume they can require their employees to be vaccinated (in the context of the COVID-19 vaccine).
However, it is contended that work health and safety obligations, alongside commercial viability, make it reasonable to make vaccines compulsory via a direction – usually through a policy.
On a more obvious note if there is a government directive for an industry to have in place the vaccine then this will lead itself to a more reasonable and lawful direction.
The Employer must so far as is reasonably practicable, provide a safe working environment and minimise risks to health and safety. This is a clear duty.
For example, some employers who have particularly vulnerable and elderly employees, clients/patients or stakeholders may argue that a vaccine requirement is reasonable and lawful.
This is a tough issue to traverse and one where a number of our clients have required assistance. NB Lawyers – Lawyers for Employers undertake and offer an obligation free consultation – we are happy to help.
Jonathan Mamaril leads a team of handpicked experts in the areas of employment law and commercial law who focus on educating clients to avoid headaches, provide advice on issues before they fester and when action needs to be taken and there is a problem mitigate risk and liability. With a core value of helping first and providing practical advice, Jonathan is a sought after advisor to a number of Employers and as a speaker for forums and seminars where his expertise is invaluable as a leader in this area as a lawyer for employers. print