Legal Alert

REFUSING A FLU VACCINATION FOUND TO BE A VALID REASON FOR DISMISSAL

Author: Sarah Younis

With the cooler months approaching, employers are left to consider what are the best measures to adopt to prevent their workers from becoming sick. One such measure is for employees to receive a flu vaccination. Flu vaccinations in the workplace can result in increased productivity, and reduced absenteeism among workers. However, vaccinations are a physically invasive procedure and some employees may refuse a vaccination for personal reasons.

An unfair dismissal case handed down recently, Ms Bou-Jamie Barber v Goodstart Early Learning [2021] FWC 2156 (Barber Case), considered whether a childcare worker refused a lawful and reasonable direction from her employer, Goodstart Early Learning (Goodstart), when she declined a mandatory flu vaccination.

In the Barber Case, Ms Barber, who had 14 ‘exemplary’ years with Goodstart, claimed that she had been unfairly dismissed because she refused to get a flu vaccination. Goodstart relied upon its policy which required its employees to have the flu vaccination “unless they have a medical condition which makes it unsafe for them to do so”.

Ms Barber asserted that she could not receive the vaccine as it would have had a detrimental effect on her health. However, she did not provide any medical evidence to support her claim that she had a “sensitive” immune system. Goodstart offered to cover the cost of Ms Barber visiting a medical practitioner and provided Ms Barber with ample time to do so. However, multiple doctors refused to provide her a statement that she should be exempt from the vaccination on medical grounds.

The Fair Work Commission dismissed Ms Barber’s case and held that Goodstart had a valid reason for termination based on Ms Barber failing to comply with a lawful and reasonable direction. In doing so, the FWC noted:

• Ms Barber knowingly and consciously objected to the vaccination, and in doing so was aware of the consequences;
• Ms Barber works in an environment which cares for the vulnerable, namely children;
• the decision to terminate her employment was taken over a period of 4 months and was not a hasty decision; and
• the dismissal was fair in all the circumstances, particularly as Ms Barber failed to establish that she had a valid medical exemption.

The FWC also rejected Ms Barber’s assertion that being forced to vaccinate constituted assault and battery.

While the case could still be the subject of an appeal, for now, it provides valuable insight to employers on their rights in respect to flu vaccinations. Although the FWC made it clear that the decision “relates specifically to the influenza vaccination in a childcare environment”, the case highlights that an employer’s direction to get a vaccination can be considered lawful and reasonable depending on the circumstances. Other factors to consider include the employer’s relevant policies on the matter, the environment in which the employee works in and the industry of the employer.

The Barber Case follows another recent decision on the topic of mandatory flu vaccinations by the Fair Work Commission. In Jennifer Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWC 1818 (Kimber Case), the Fair Work Commission denied an unfair dismissal application regarding an aged care employee who did not comply with a mandatory influenza vaccination requirement due to an alleged medical contraindication.

The Kimber Case concerned a New South Wales public health orders issued in 2020 that provided a person may not enter or remain on the premises of a residential aged care facility if they had not received an up-to-date vaccination against influenza. Sapphire Coast Community Aged Care (SCCAC) implemented the requirement that all staff be vaccinated and that employees who refused the vaccination were to provide medical evidence supporting their reasons for refusal.

Ms Kimber, a receptionist, refused the influenza vaccination on the basis that she had previously experienced a 10-month rash after she had the influenza vaccination in 2016. In doing so, Ms Kimber provided a letter from a Chinese medicine practitioner which stated that Ms Kimber would “prefer to not have the flu vaccination”. She also provided a separate letter from her treating doctor, which claimed that Ms Kimber “told” the treating doctor about the rash and included a few undated photographs of the alleged rash. However, the letter did not set out in any way any medical diagnosis of medical contraindication to justify the exemption.

SCCAC considered that the medical evidence provided by Ms Kimber was insufficient. Accordingly, SCCAC moved to dismiss Ms Kimber for the following reasons:

1. firstly, the information she provided did not amount to an acceptable medical contraindication under the public health orders; and
2. secondly, as Ms Kimber did not comply with the public health order, it followed that she could not fulfil the inherent requirements of her role.

Ms Kimber brought an unfair dismissal application alleging that the termination of her employment was harsh, unjust and unreasonable.

The Fair Work Commission upheld the termination and determined that Ms Kimber’s dismissal was not unfair because SCCAC had a lawful and reasonable basis to mandate the vaccination of all staff. By reason of the public health orders, Ms Kimber was not allowed to enter or remain at the facility without an up-to-date flu vaccine and was therefore unable to perform the inherent requirements of her role. Importantly, if SCCAC allowed her to continue to perform her role at the facility without the vaccination, it would be in breach of the public health orders and ordered to pay significant financial penalties.

The Kimber Case, much like the Barber Case, offers a timely reminder to employers who wish to adopt a flu vaccination requirement that they must treat employee refusals on a case-by-case basis and closely consider any medical evidence provided. These decisions also support the proposition that employers in high-risk environments (such as childcare and aged care) will have stronger grounds to impose a compulsory vaccination policy on staff if they are bound by legal obligations under public health orders.

If you require any assistance in relation to requiring flu vaccinations in your workplace, please do not hesitate to contact our team of specialists.

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