The dismissal of front-line care workers who refused the flu vaccination in 2020 has recently been upheld in three separate Fair Work Commission (FWC) decisions. In each case the dismissed employee was working directly with vulnerable and often immunocompromised individuals and as a result employers made flu vaccination mandatory. In each situation the FWC decided that the mandating of the vaccine was a lawful and reasonable direction meaning failure to comply was valid reason for dismissal.
Importantly, in each case employees were given ample time to consider their position and determine whether they would comply with the direction or object to vaccination. In all three cases the employees objected by claiming medical exemption to receipt of the vaccine, specifically that the flu vaccination had medical contraindications (all of which were unsubstantiated).
Bou-Jamie Barber v Goodstart Early Learning [2021] FWC 2156:
This case concerned the dismissal of a childcare worker who refused vaccination on the basis of medical contraindication. The FWC held that the employer had “in fulfilling their obligation to best case for these children, decided on what they perceive to be the correct option and such a management prerogative is not to be lightly curtailed, unless it would be unreasonable to do so”. The Commission also referenced the strict workplace health and safety laws of the industry, as well as the distinct duty of care placed on employees by their line of work.
In this case, the policy requiring vaccination of employees did include provisions for medical exemption. However, the disputing employee was not able to provide sufficient evidence to support her claim that she had a “sensitive immune system”.
Can employers lawfully mandate vaccination of their employees?
The Fair Work Ombudsman (FWO) has established the following guidance on mandatory vaccinations: “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…”.
However, the FWO did state that there were “limited circumstances where an employer may require their employees to be vaccinated.” Generally, employers have an obligation under work health and safety (WHS) legislation to ensure the health and safety of their employees. As transmission of COVID-19 poses a distinct risk in the workplace, employers do have a duty to eliminate or reduce that risk so far as is reasonably practicable. Employers may impose a direction to vaccinate if it is ‘lawful’ (complies with contracts, awards, and legislation) and ‘reasonable’ (determined on a case-by-case basis). Examples of reasonable directions include where employees interact with people with an elevated risk of being infected with coronavirus (e.g., employees working in hotel quarantine or border control) or employees who have close contact with vulnerable people (e.g., health or aged care employees).
What to do if an employer chooses to mandate vaccination?
If employers decide to mandate vaccination of their employees, they should undertake the following steps:
- Draft a policy on vaccination, clearly setting out the roles that require vaccination, basis for exemptions and any proof of vaccination requirements;
- Consult with employees and other relevant stakeholders about the proposed policy and how it will be implemented;
- Ensure that all affected employees are made aware of the policy and the consequences of non-compliance;
- Review each individual instance of non-compliance on a case-by-case basis, considering relevant individual circumstances and reasons for non-compliance; and
- Apply the policy consistently between employees.
What are the risks of an employer mandating vaccinations?
Employers should be aware of the following repercussions that may arise out of the mandating of employee vaccinations:
- Unfair dismissal claims on the basis that the direction was neither lawful nor reasonable;
- Discrimination claims where employers take adverse action against an employee based on medical or religious grounds; and
- Workers’ compensation claims from employees who experience adverse side effects from the mandated vaccine.
Importantly, employers should also consider the risks of not mandating the vaccination. In this situation, the employer could be exposing themselves to constructive dismissal claims where employees have no choice other than to resign where colleagues weren’t mandate dot be vaccinated – creating a risk to office health and safety.
So, what’s the bottom line?
Employers should take extreme care and discretion when deciding whether to make the vaccination of employees mandatory. They should carefully consider the possible risks of mandating, or failing to, mandate vaccination of employees. It is important to note that employers in child, health and aged care industries are more likely to have their directions be regarded as “lawful and reasonable”.
Employers should always ensure that they are complying with current public health orders and workplace health and safety requirements.