Update to the case law on mandatory vaccinations

21 July 2021
In recent months, the Fair Work Commission has dealt with a number of unfair dismissal applications related to the COVID-19 pandemic. Two of those decisions in particular have further clarified the Commission’s likely approach to mandatory vaccinations in the workplace.

Glover v Ozcare [2021] FWC 2989

Following the jurisdictional decision in January, which held that Ms Glover had been dismissed for the purposes of an unfair dismissal application, the Commission decided on 26 May 2021 to uphold Ms Glover’s dismissal.

To briefly summarise the facts of this case, Ms Glover had been employed as a community care worker for more than 10 years. Her role required her to go to the homes of Ozcare’s clients to deliver care services. For the 10 years prior to her termination, she had declined to participate in Ozcare’s influenza vaccination program. She did so on the grounds that her parents had told her when she was 7 years old and living in the Philippines, she had a serious reaction to the flu vaccine. In May 2020, Ozcare made the flu shot an inherent requirement of Ms Glover’s role, and when she refused to receive it, they ceased rostering her for shifts.

In May 2021, the Commission held hat Ozcare’s decision to mandate the flu vaccine – without exception – was lawful and reasonable. The Commission noted that Ozcare’s clients were particularly vulnerable, with many over 75, and that Ozcare had a duty of care to those clients. Also, the Commission noted in brief that the direction, despite not providing exceptions on medical grounds, did not breach any ground of discrimination.

It also noted that community carers could become ‘super-spreaders’ of influenza, and that PPE was not sufficient to stop the spread of the flu. The Commission heard evidence from an occupational physician about the efficacy of the fly vaccine, and accepted that, on average, it was only about 59% effective against preventing a person from contracting the infection.

It is clear from the judgement that the specific circumstances of Ms Glover’s role held significant weight for the Commission. Commissioner Hunt noted at [237]:

“Ms Glover’s role was not that of a widget maker in a widget factory where her status as an unvaccinated employee might not matter. In that scenario, it might be lawful for a widget factory employer to mandate influenza vaccinations for widget makers where no such government directive had been made; however, it might not be or is not likely to be reasonable in all of the circumstances.”

This comment indicates an acknowledgement by the Commission that the reasonableness of each direction to mandate vaccination will turn on its facts, and that we should not expect every one to be reasonable.

While there are obviously differences between the flu and COVID-19, and their respective vaccines, this decision provides some guidance as to how the Commission may approach an unfair dismissal application by an employee who refused to have the COVID-19 vaccination, and the factors the Commission is likely to consider.

Barber v Goodstart Early Learning [2021] FWC 2156

This case involved an early childhood educator who objected to receiving the flu vaccination on the basis of her history of immune diseases, including coeliac disease, and because she had experienced a reaction to the vaccination 11 years prior. Her employer provided her with a statement which certified it was not safe for her to have the vaccine, to be signed by a medical practitioner. She attended on numerous doctors, but they each declined to sign it.

In August 2020, after a show cause process, Ms Barber’s employment was terminated on the basis that she “had not provided a valid reason to be exempt from the condition that her ongoing employment is subject to the flu vaccination”, and therefore could not satisfy an inherent requirement of her role.

In upholding the dismissal, the Commission found that the employer’s mandatory vaccination policy was lawful and reasonable. It noted that the policy accorded with the employer’s legal obligations regarding safety, and Government recommendations regarding the vaccine. It also accepted that, even at its least effective, the vaccine directly reduces the risk of infection towards those parties the employer has a duty of care towards (being both children and it other employees).

Per Deputy President Lake at [435] to [436]:

“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.”

However, the Commission was not satisfied that being vaccinated against influenza was an inherent requirement of the applicant’s employment. Rather, the flu vaccination was one way for Ms Barber to fulfil her statutory obligation to take reasonable care to ensure her acts or omissions do not adversely affect the health and safety of other persons.

In finding the policy constituted a lawful and reasonable direction with which Ms Barber had failed to comply, her application was dismissed.

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