Issue 10 2021 - No jab no job wins out - but employers must do homework first

Updated: Jun 28

Two recent cases have backed the dismissals of employees who did not get flu vaccinations when directed to do so. Recent press articles have encouraged some employers to assume that they can legally force vaccinations in their workplaces. However, the decisions reiterate that each case must stand on its own facts, and employers must do their research and undertake the required groundwork before taking any action against an employee.


Barber V Goodstart Early Learning [1]

In this case, the employee was a Lead Educator in a child care centre. In April 2020, the employer introduced an immunisation policy, requiring that all staff receive the influenza vaccination unless they had a medical condition which made it unsafe for them.

The employee claimed to have a sensitive immune system and objected to the vaccination. The employer determined that the medical certificate provided was not sufficient to support her objection. The employee’s employment was eventually terminated on 13 August 2020 for her “failure to be vaccinated and meet the inherent requirements of her role”.

The FWC found that vaccination was not an “inherent requirement of the role” because the job of Lead Educator could be done without the vaccination. However, the refusal to have the vaccination in this case was failure to follow a reasonable and lawful instruction.

The 92-page decision is complex and detailed. The Deputy President’s comment is instructive:

"I note that curiosity surrounding vaccination is at an unnatural high; protection against COVID-19 is becoming a tangible reality for the population and guidance surrounding how this will be administered in the workplace is scarce. As will be seen from the highly detailed evidence below, this decision is relative to the influenza vaccine in a highly particular industry. While this may seem obvious to most, given the climate we find ourselves in, it feels appropriate to make this declaration."

Although there was no specific Public Health Order (“PHO”) in place, the employer had relied on advice from multiple government medical authorities, particularly in relation to child care settings. It assessed that advice relative to its national operations. It consulted on the introduction of the new policy. It had a transparent procedure for dealing with employee objections and the medical evidence the employee provided was objectively assessed. The employee was given notice that her employment was at risk and a fair process was used to examine her responses.

Kimber V Sapphire Coast Community Aged Care [2]

The employee’s duties involved reception and clerical work in an aged care facility in NSW. In April 2020, the employer informed staff that because of a PHO it would require all employees to be vaccinated to work in its facility unless they met specified exemption in the PHO.

Thereafter followed a series of communications and meetings in which the employee claimed to have valid medical reasons for not being able to receive the vaccination. The evidence the employee supplied was not robust or clear and was not directed to the “specified exemptions”. Eventually, her employment was terminated on 6 July 2020 as she “could not meet the inherent requirements of her role” (that is, compliance with the PHO).

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1 [2021] FWC 2156

2 [2021] FWC 1818