Vaccination verdict

In April this year the Fair Work Commission (FWC) affirmed a childcare employer’s decision to dismiss an employee for refusing to comply with a requirement to receive a flu vaccination. See

Obviously, with COVID-19 vaccinations being rolled out, this is a matter of significant concern for IEUA members and their employers.

The employee had been employed by Goodstart Early Learning since 2006, initially as a lead educator, later as a director, and finally as a group leader of an early learning centre.

In April 2020, following recommendations by a relevant health body, and a process of consultation about its proposed influenza response, Goodstart introduced a policy requiring its employees to be vaccinated for influenza.

Importantly, Goodstart’s policy was found to allow for medical exemptions if it was unsafe for an employee to be vaccinated. The FWC also found that Goodstart covered the expenses associated with gathering any medical evidence required and had provided extended timeframes to enable the employee to gain compliance.

The employee initially provided a medical certificate stating that she had ‘a sensitive immune system’, a history of chronic auto immune disease and Coeliac disease and that she ‘reports having reacted quite badly to the flu vaccination’. The employee was notified that this certificate did not meet the requirements for exemption as it did not clearly indicate whether it was unsafe for the employee to receive the vaccination.

No exemption

The FWC decision suggests that the employee was given nine opportunities over a three-month period to provide information capable of satisfying Goodstart that she was medically unsuitable for an influenza vaccination. By her own account, multiple doctors refused to provide the employee with a statement that she should be exempt from vaccination.

The FWC found that Goodstart’s decision to implement a policy of mandatory vaccination:

  • related to a childcare environment where risks and concerns are distinct, involving children who are by nature more vulnerable and have poor hygiene standards, making viral spread easier and potentially more dangerous
  • followed an assessment of risk to both children and employees, and consideration that was given to alternative methodologies and approaches
  • acknowledged varying degrees of effectiveness of immunisation, but identified any reduction in the transmission and contraction of influenza as being a positive factor
  • involved a broad communication strategy to inform employees of the need to be vaccinated
  • anticipated that there may be medical grounds for the vaccination to be unsafe, and provided for medical exemptions, and
  • established a process for obtaining medical exemptions which was managed by a panel of senior staff.
Workers cannot be forcibly vaccinated. However, such a refusal can, in certain circumstances, give rise to dismissal which may not be found to be unfair.

It is also worth noting that the decision indicated that Goodstart had accepted 179 medical certificates (presumably as the valid basis for a similar number of medical exemptions granted) and had dismissed 16 employees because of a failure to obtain the vaccination.

Ultimately, the FWC Deputy President found:

  • This is a case where the employer made a logical and legal analysis of the risks and hazards in the workplace, developed a response and implemented a policy to target that risk.
  • The policy was a reasonable one and the Applicant chose not to comply. No medical exemption was substantiated and accordingly , the Applicant’s employment came to an end. I am not satisfied that is unfair.
Right to refuse

It is important to note that the decision acknowledges a person’s right to refuse vaccination, and that workers cannot be forcibly vaccinated. However, such a refusal can, in certain circumstances, give rise to dismissal which may not be found to be unfair. The FWC decision upheld the employer stance that any exemption needed to be based on clear medical evidence, and exemptions were not required to be granted in instances of conscientious objection.

In its conclusion, the FWC emphasised that this decision was not one of general application, yet there is little doubt that it will be relied upon as the basis for some employers to consider how to approach the issue of mandatory vaccination for COVID-19.

The assessment of whether a vaccination can be reasonably mandated would require a consideration of the circumstances of the employment and the risks and hazards involved. An employer would also need to ensure that questions around the availability and efficacy of vaccines are properly considered, and that medical exemptions pertaining to vaccines are managed appropriately.

What is clear is that where an employer can satisfy the FWC that mandatory vaccination is reasonable in their work context and has been implemented with appropriate safeguards, refusal by an employee may result in dismissal that may not be found to be unfair.

The union expects to see a range of different approaches taken by employers, and will assist members in seeking to ensure that any such employer policies are proportionate and sufficiently balanced to safeguard the interests of workers and their workplaces.

Iain Bailey
Industrial Officer