Dismissal for refusing to vaccinate not unfair

The Fair Work Commission has ruled that an employee’s dismissal for refusing an influenza vaccination was lawful, in a case that may have significant implications in view of the COVID-19 vaccination roll-out.

In Ms Bou-Jamie Barber v Goodstart Early Learning [2021] FWC 2156, the employee was dismissed by Goodstart Early Learning for failing to comply with the business’s mandatory flu vaccination policy. The policy requires all 17,500 employees of Goodstart to have flu vaccines “unless they have a medical condition which makes it unsafe for them to do so.”

The vaccination policy involved a two-step process when processing medical exemptions – first, they were managed by the People and Culture team, before being reviewed by a panel of senior Goodstart staff. The panel would then decide whether to grant the exemption, ask for more information, or move to termination of the employee.

Despite multiple medical practitioners refusing to provide her with a statement that she should be exempt from vaccination, the employee refused the flu vaccine on the basis that she suffered from a “sensitive immune system”.

In a process that extended for over 4 months, Goodstart dismissed Ms Barber because she could not meet the inherent requirements of her role without being vaccinated. The Commission was critical of this reason, finding it “difficult” to accept that vaccination was an inherent requirement of the employee’s role. Rather, it was found that her conduct constituted misconduct, in that she failed to comply with a lawful and reasonable direction of her employer. In that respect, the Commission was satisfied that a valid reason for dismissal existed.

The employee further argued that being forced to vaccinate constituted assault and battery, which the Commission labelled as “fanciful”, as the idea of Goodstart threatening to “inflict a vaccination” on her was not “objectively reasonable”.

The law surrounding vaccinations in the workplace is of heightened public interest, and the Commission was careful to keep the scope of this decision narrow. The Deputy President remarked that mandatory vaccination in different industries being contemplated on the basis of the reasons contained in this decision would be “audacious, if not improvident.”

Employers should therefore be mindful that this decision was intended for the sole context of Goodstart’s industry, the policy in place, and the employee’s role.

EMA Legal can assist employers will enquiries relating to workplace vaccination policies.