A significant decision from the Fair Work Commission (FWC) provides some useful guidance on the reasonableness and lawfulness of such policies, after the dismissal of an employee for refusing to take a free flu vaccine was upheld.
Ms Bou-Jamie Barber v Goodstart Early Learning [2021] FWC 2156
Facts
Ms Barber worked as a Lead Educator at Goodstart Early Learning (Goodstart).
In April 2020, the company introduced an immunisation policy that required all staff to receive a flu vaccine unless a medical condition made it unsafe to do so. Ms Barber objected to the flu vaccine on the basis that she had a sensitive immune system and had previously had a bad reaction to the flu vaccine. Goodstart determined that the medical certificate provided was not sufficient to support Ms Barber’s objection and subsequently dismissed her because of her failure to be vaccinated and meet the inherent requirements of her role.
Judgment
It was held that Goodstart’s mandatory flu vaccination policy was a lawful and reasonable direction, which Ms Barber was required to comply with.
Deputy President Lake held that the policy was reasonable on the basis that Goodstart were legally obliged under work health and safety legislation to protect consumers and employees. Additionally, government recommendations supported the policy, and it was appropriately adapted to the circumstances since it allowed for medical exemption. Contrary to Ms Barber’s submissions, the policy could not sustain an action in assault and so was a lawful policy. Since Ms Barber did not present a valid medical exemption to Goodstart, and there was a sheer lack of evidence presented to the FWC, Ms Barber’s dismissal was ultimately upheld.
Interestingly, Deputy President highlighted that this was not a dismissal that could be sustained on the ground of incapacity because it could not be said that the vaccination was not an inherent requirement of her role. Rather, this was a case of misconduct warranting dismissal because Ms Barber failed to comply with a lawful and reasonable direction.
The judgment also noted that this decision is relevant to a highly particular industry, that being the childcare industry. It was beyond the scope of the decision to consider whether these findings extended to the entirety of Goodstart’s business.
Key takeaways
By analogy, the findings in this case are applicable in the aged care sector. However, whilst it is possible to conclude that a mandatory vaccination policy in relation to the flu vaccine is a reasonable and lawful direction, the same reasoning is not necessarily applicable to the Covid vaccine.
The Australian Health Protection Principal Committee has issued a statement saying that the Covid vaccine should be strongly encouraged but that it does not recommend mandating the vaccine for the aged care workforce.
If you have any queries regarding lawful and reasonable directions or any other aged care related matters, please contact a member of our Health and Aged Care team on (08) 9321 0522.
Authors: Gemma McGrath and Morgan Barnsby.
