Several recent decisions of the Fair Work Commission (Commission) guide employers considering implementing a mandatory vaccination policy.
In the decision of Glover-v-Ozcare  FWC 2989, the Commission upheld the dismissal of an employee for failing to undertake a mandated influenza vaccination.
For many years Ms Glover had declined to have an influenza vaccination due to allergies and Ozcare had accepted this. However, in April 2020 the employer informed Glover of two important measures it was implementing given the current COVID 19 situation including mandatory influenza vaccinations and required her to undergo an influenza vaccination.
Ms Glover declined as she believed she would suffer an anaphylactic reaction to the vaccination. She was informed that as a result, Ozcare was unable to roster her for work and was permitted to access her leave entitlements. She remained on leave until she applied for unfair dismissal on 10 October 2020.
The Commission found that Ms Glover had not been unfairly dismissed and Ozcare’s decision to introduce the Employment Immunisation Policy was not unlawful and did not breach any ground of discrimination.
In considering the reasonableness of the introduction of the requirement, the Commission had regard to the vulnerability and age of clients cared for by Ozcare and its employees. It accepted that in determining the reasonableness of Ozcare’s policy, it was necessary to do so against the backdrop of managerial prerogative and that it was a decision the business considered necessary to take to safeguard its clients and employees as far as it is practicable to do so.
In the decision of Barber-v-Goodstart Early Learning  FWC 2156, the Commission found that the employee was not unfairly dismissed for failing to have a vaccination following the employer’s mandatory vaccination policy.
The employee was employed by Goodstart as a lead educator. In April 2020 the employer introduced an immunisation policy requiring all staff to receive the influenza vaccination unless they had a medical condition that made it unsafe for them to do so. The applicant said she had a sensitive immune system and therefore objected to having the vaccination. The employer determined that the medical certificate provided by the applicant was not sufficient to support an objection to the influenza vaccination and the applicant’s employment was terminated for her failure to be vaccinated and meet the inherent requirements of her role.
The Commission was not satisfied with the material that the applicant lacked the capacity to perform the inherent requirements of the role as a result of her immunisation status. However, it was satisfied that a valid reason for dismissal existed due to the employer’s conduct in failing to comply with the lawful and reasonable direction of the respondent to be vaccinated against influenza. It noted that the question of what is reasonable is a question of fact and balance, and assessed against the factors relevant to the employment relationship. It found that the employee was made abundantly aware that a failure to be vaccinated would bring about the termination of her employment and given ample opportunity to respond. Having considered all the evidence, the Commission was not satisfied the dismissal was harsh, unjust or unreasonable.
In Kimber-v-Sapphire Coast Community Aged Care Ltd  FWC 1818, the Commission found the dismissal of a receptionist from a high-care nursing home in July 2020 as a result of her refusal to comply with a New South Wales Public Health Order that no one enters such a facility without an up-to-date influenza vaccination, was lawful and reasonable and her dismissal was not harsh, unjust or unreasonable.
The Commission found that Ms Kimber’s failure to have the influenza immunisation meant that she was unable to perform the inherent requirements of her job, as she was not legally permitted to enter or remain at the workplace without an up-to-date vaccination as a result of the public health order. The Commission further found the employer had acted in an objectively prudent and reasonable way in not permitting the employee to work at the workplace without an up-to-date vaccination and was not satisfied the employee had demonstrated any medical contraindications to the vaccination.
These decisions highlight the matters the Commission will consider where an employer imposes a mandatory vaccination requirement and subsequently terminates an employee who refuses to be vaccinated.
There needs to be careful legal and expert analysis of the proposed requirement, proper consultation and careful implementation of the policy and managing any employee who declines to be vaccinated.
The circumstances in which an employer could mandate vaccination will be highly dependent on the work environment, any statutory obligations and risk factors including:-
- whether there is any specific government direction, legislation or health law requirement to do so;
- whether there is an enterprise agreement or contractual provision that requires vaccinations;
- whether any direction to be vaccinated is lawful and reasonable in all the circumstances.
Further, each employee’s circumstances and the grounds upon which they are objecting to undergoing vaccination need to be considered carefully.
The COVID 19 pandemic and the existence of influenza will not automatically make it reasonable for an employer to direct its employees to become vaccinated for COVID 19 or influenza.
This publication has been carefully prepared, but it has been written in brief and general terms and should be viewed as broad guidance only. It does not purport to be comprehensive or to render advice. No one should rely on the information contained in this publication without first obtaining professional advice relevant to their own specific situation.