Legal Alert

CAN YOU DISMISS AN EMPLOYEE FOR REFUSING TO VACCINATE?

Authors: Greg Robertson, Amelia Dowey & Angela Zhang

With the Australian government’s recent announcement regarding an anticipated COVID-19 vaccine roll-out by March 2021, urgent questions have arisen for employers regarding whether they can or should mandate COVID-19 vaccinations for employees once a vaccine is available to them.

The recent unfair dismissal cases of Nicole Maree Arnold v Goodstart Early Learning Limited T/A Goodstart Early Learning [2020] FWC 6083 (Arnold v Goodstart Early Learning) and Maria Corazon Glover v Ozcare [2021] FWC 231 (Glover v Ozcare) have been seen as useful in indicating how Australian Courts and Tribunals will potentially respond to these issues. In these cases, the issue of mandatory influenza vaccinations was considered, although not ultimately determined (the first matter was filed out of time, and the second decision concerned a jurisdictional issue). However, the cases suggest that mandatory vaccinations, particularly in workplaces where there are interactions with vulnerable persons, will likely be ‘lawful and reasonable’.

In both decisions, the Fair Work Commission was asked to consider whether an employee’s dismissal after refusing their employer’s direction to be vaccinated was harsh, unjust or unreasonable so as to entitle the employee to an unfair dismissal remedy under the Fair Work Act 2009 (Cth).

In Arnold v Goodstart Early Learning, Ms Arnold was employed by Goodstart Early Learning (“Goodstart”) as a Group Leader with responsibility for the care of children. In 2020, Goodstart determined that in addition to providing free influenza vaccinations, it would make vaccinations mandatory for all employees. Goodstart allowed employees with medical reasons for not being vaccinated to seek an exemption. After refusing the mandatory vaccination for no apparent medical reason, Ms Arnold’s employment was terminated. While her unfair dismissal application was ultimately dismissed as it was filed out of time, Commissioner Asbury notably stated:

“While I do not go so far as to say that the Applicant’s case lacks merit…it is at least…arguable that the Respondent’s policy requiring mandatory vaccination is lawful and reasonable in the context of its operations, which principally involve the care of children, including children who are too young to be vaccinated or unable to be vaccinated for a valid health reason.”

Commissioner Asbury noted that, prima facie, Goodstart’s policy was necessary to ensure that it met its duty of care, while balancing the needs of its employees who may have reasonable medical grounds to refuse vaccination. To that end, Commissioner Asbury stated:

“It is also equally arguable that the Applicant has unreasonably refused to comply with a lawful and reasonable direction which is necessary for her to comply with the inherent requirements of her position, which involves the provision of care to young children and infants.”

In Glover v Ozcare, the Applicant, Ms Glover, sought an unfair dismissal remedy after she had been dismissed for refusing a mandatory vaccination direction by the Respondent, Ozcare. Ms Glover was employed by Ozcare, a residential aged care provider, for over 10 years in the role of a part-time care assistant. In 2020, Ozcare updated their Employee Immunisation Policy to make influenza vaccinations mandatory for all employees working in their residential aged care facilities and community care services with direct client contact. In response to this, Ms Glover opposed the direction on the basis of her previous adverse reaction to receiving the influenza vaccine when she was seven. She was subsequently terminated in October 2020.

Commissioner Hunt rejected the employer’s proposition that it was subject to a directive by Queensland’s Chief Health Officer that Ms Glover was not permitted to care for people in their homes without a vaccination, because that directive applied solely to the premises of a residential aged care facility (Ms Glover did not work in such a facility).

In determining whether the direction had been ‘lawful and reasonable’, Commissioner Hunt acknowledged that there was “much discussion around the legality of employers requiring employees to be vaccinated”, particularly in circumstances where certain vulnerable persons may have an adverse reason were they to have influenza and then contract COVID-19.

Notwithstanding this, Commissioner Hunt noted that:

“In my view, each circumstance of the person’s role is important to consider, and the workplace in which they work in determining whether an employer’s decision to make a vaccination an inherent requirement of the role is a lawful and reasonable direction. Refusal of such may result in termination of employment, regardless of the employee’s reason, whether medical, or based on religious grounds, or simply the person being a conscientious objector…It is largely a consideration as to whether the Respondent’s decision to make an influenza vaccination an inherent requirement of the job is lawful and reasonable having particular regard to her care of vulnerable clients in their home.”

Commissioner Hunt, rejecting another jurisdictional objection, indicated that the dismissal matter would be listed for hearing, The Commissioner noted that the employer would be expected to lead evidence as to the nature of the vulnerabilities of their clients, the kinds of ailments that they may suffer from, the potential effects of those individuals contracting influenza from an unvaccinated employee, and the potential advancements in vaccinations that may counteract Ms Glover’s refusal to seek current specialist medical advice as to the safety for her to be vaccinated in 2020.

Although the issues of the ‘lawfulness’ and ‘reasonableness’ of a direction to vaccinate, alongside its necessity to comply with the inherent requirements of the Applicant’s role, were not ultimately determined in either of the above decisions, the aforementioned comments by the Fair Work Commission suggest that the Courts and Tribunals will likely lean towards the view that mandatory COVID-19 vaccinations, particularly in workplaces where there are interactions with vulnerable persons, can be ‘lawful and reasonable’. However, it is clear that in making that determination, various factors will need to be considered, including the sector that the business is in, the nature of the work that is being performed by particular employees, and the reason for vaccination refusal.

Ultimately, while recent legal discussion regarding mandatory vaccinations in the workplace appears to signify a move towards greater consideration and protection of workplaces where there are interactions with vulnerable persons, there are still many legal uncertainties faced across Australian workplaces in regards to mandatory COVID-19 vaccinations, with a lack of clear determination by the courts at this early stage. Thus, it will be a balancing exercise in a relatively untested area.

For more on the issue of whether employers can direct employees to get the COVID-19 vaccination, please read our upcoming alert or contact our team for further advice or assistance.

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