Many employees ask whether or not to get the vaccine. Some think this recent FWC decision could tip the scales one way, but FWC officials aren’t so convinced.

When the conversation about mandating COVID-19 vaccines first started, many pointed to a 2020 Fair Work Commission (FWC) case of a former childcare employee who claimed she was unfairly dismissed after refusing the seasonal flu vaccine, and suggested we would see similar arguments arise in the context of the COVID-19 vaccine.

On 20 April 2021, in a first of its kind decision, the Commission concluded that the employee’s dismissal was fair – but how will this impact future vaccine stoushes?

While there may be crossover between the childcare worker’s case and those who may refuse the COVID-19 vaccine down the line – i.e. it will be dependent on industry and exposure to vulnerable citizens (children and the elderly) – the Commission is cautioning against conflating the matter.

Bearing in mind that many eyes will be on the outcome of this case, deputy president Nicholas Lake was careful to specify that this decision is specific to this particular case.

“[I]t is beyond the scope of this decision to consider whether the conclusions [in this matter]… extend even as far as the entirety of [the] business, as the role each employee performs in fulfilling [the business’s] undertaking may differ.

“An attempt to extrapolate further and say that mandatory vaccination in different industries could be contemplated on the reasons [contained in the decision] would be audacious, if not improvident.”

However, this isn’t to say there isn’t something important to be learned from this case. This decision may still have implications for employers wishing to mandate COVID-19 vaccinations.  

The background

In April 2020, the employer, Goodstart Early Learning – a childcare company which employs around 17,500 people across over 600 centres – introduced a mandatory immunisation policy requiring all employees to receive the influenza vaccination unless they had a medical condition making it unsafe for them to do so.  

The employee in question objected to the vaccine on medical grounds. She presented evidence that she had a “sensitive immune system” and claimed she had previously experienced adverse effects after receiving a flu vaccination. (More on that below).

The employee – who had worked with Goodstart for 14 years – claimed forcing employees to take the flu vaccine was akin to assault and battery.

However, Lake said as it was clear she never intended on getting the vaccine, her allegation of assault and battery is “likely to fail”.

“Battery requires ‘the defendant doing an act which causes physical contact with the plaintiff’. No contact with the [employee] was alleged at any point and I am not satisfied the action would be successful.”

On 13 August 2020, the employee was dismissed.

Where the FWC landed

The main question the Commission sought to answer was: ‘Was the mandatory vaccination requirement lawful and reasonable?’

The Commission first considered whether Goodstart, in enforcing its mandatory vaccination policy, had given a lawful and reasonable direction to its employees.

It found that the policy was both reasonable and lawful as Goodstart had a duty to protect the health and safety of its employees and the children under its care.  It accepted that:

• Several state health bodies have recommended flu vaccinations for people working with children.
• Flu symptoms could be severe, especially in children, who are “at an increased risk of morbidity and mortality”.
• Flu vaccinations are effective at reducing the risk of infection to children and staff.
• Alternative methods of managing risk, like social distancing, are not always available to childcare workers.
• Unions were supportive of Goodstart implementing the policy.

Next, it has to determine if the employee had a valid medical exemption.

Goodstart’s mandatory vaccination policy does not require employees to be vaccinated if they have a medical condition which makes it unsafe for them to do so.  

The employee gave evidence that she had previously experienced migraines after receiving a flu vaccine. However, this could not be corroborated by hospital records.  

The employee also produced medical certificates to show that she had coeliac disease, a non-severe allergy, and a sensitive immune system. A medical expert gave evidence that a flu vaccine would not exacerbate any of her existing medical conditions or have any adverse consequences on her health.

Goodstart determined that the employee’s medical certificate was therefore insufficient to support her objection – the FWC later agreed.

“On the [employee’s] own account, multiple doctors refused to provide her a statement that she should be exempt from vaccination,” said Lake in his decision. “In a scenario where the cost of visiting medical practitioners was covered by [Goodstart], there was no barrier to collecting this information, if it existed… it is unclear how I, or Goodstart, could be satisfied that there was valid ground for a medical exemption.”

The Commission was satisfied that, on the medical evidence available, the vaccine did not pose any additional risk to her, stating, “the acute risk to her based on family history and a sensitive gut are unsupported… [a]ll she could produce were vague certificates which attest nothing substantive”. Accordingly, she was not entitled to a medical exemption.

The Commission held the employee chose not to comply with the lawful and reasonable direction of her employer.

Finally, the Commission had to determine if receiving the vaccine constituted an inherent requirement of the role and therefore validates the decision for dismissal.

The Commission rejected this argument as a valid basis for dismissal. It observed that, “where [the employee] has successfully performed her role for many years, it is difficult to see how the policy is not simply seeking to artificially impose an inherent requirement upon her.”

However, this was not enough to stack the odds in the employee’s favour with the Commission deciding her dismissal was not unfair, and her application was dismissed.

Implications for employers

While current Federal Government policy supports voluntary COVID-19 vaccinations, some states have made mandatory vaccination orders for certain healthcare and quarantine workers.  

This leaves employers to determine themselves whether mandatory vaccinations should be implemented in the circumstances.

Irrespective of an employee’s personal views about vaccination, an employer may likely be successful in mandating a vaccination policy based on its work health and safety obligations and other factors.  

These things are generally judged on a case-by-case basis, and this decision is by no means a one/two jab policy-fits-all. Earlier this year, Safe Work Australia and the Fair Work Ombudsman both stated that most employers cannot require their employees to be vaccinated against COVID-19. But some experts disagree.  

Commentators have contended that employers’ work health and safety obligations, together with their commercial interests, make it reasonable to mandate vaccinations.

Employers have a duty, so far as is reasonably practicable, to provide a safe working environment and minimise risks to health and safety. For example, some employers may require employees to get vaccinated against COVID-19 in circumstances where employees or clients are particularly vulnerable to contracting COVID-19 – as was the case with the situation above.

However, employers considering mandatory vaccinations must be careful to avoid unlawfully discriminating against employees. This could include employees who object to the vaccine due to their disability, religion or political views.  It may be unlawful for employers to take adverse action against such employees if they refuse to vaccinate.

Employers should, as a minimum:

1. Review and consider their work health and safety policies in the context of any vaccination policy, mandatory or otherwise.
2. Clearly outline to all employees, workers and other people attending their workplaces their expectations regarding vaccinations.
3. Have procedures regarding the medical evidence and assessment of such evidence, if a person is unable to, or does not wish to be vaccinated according to an employer’s expectations or vaccination policy.
4. Assess each  ‘vaccination matter’ on a case-by-case basis, and in the context of any evidence that supports a person’s objection to an employer’s stated expectations or policy requiring mandatory vaccination. 

Aaron Goonrey is Partner, Isabel Hewitt is a Lawyer, and Milo Goldacre is a graduate in the Workplace Relations & Safety team at Lander & Rogers.

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