Decision to sack worker for refusing flu jab upheld

Decision to sack worker for refusing flu jab ruled fair.png

Decision to sack worker for refusing flu jab upheld

In a significant decision acknowledging the “scarce” guidance on employers’ requirements for compulsory workplace COVID-19 vaccinations, the Fair Work Commission (FWC) has upheld a decision by one of Australia’s largest childcare and early learning providers to dismiss a childcare worker for refusing to take a free flu shot.

In April 2020, the employer introduced an immunisation policy, requiring that all staff must receive the influenza vaccination unless they have a medical condition that makes it unsafe for them to do so. The policy had been introduced after extensive consultation with workers, as well as several unions over a period of time.

The employee claimed that she has a sensitive immune system, and she, therefore, raised her objections to the influenza vaccination with the employer. At the hearing, she submitted that she had been treated in the past for chronic autoimmune disease/coeliac and that around 11 years earlier, she had an allergic reaction when she had a flu vaccination.

Ultimately, the employer determined that the medical certificate she provided was not sufficient to support an objection to the influenza vaccination. Subsequently, her employment was terminated effective from 13 August 2020 for her failure to be vaccinated and also her failure to meet the inherent requirements of her role.

Deputy President Nicholas Lake upheld the decision to dismiss the employee. As he commented,

I am satisfied that it is a lawful and reasonable direction for Goodstart to implement the policy mandating flu vaccination for the Applicant. However, I am not satisfied that the vaccination amounts to an inherent requirement of the Applicant’s role. Despite that, I consider the direction to be vaccinated is lawful and reasonable and, therefore, a valid reason for termination exists based on the Applicant’s conduct in failing to comply with that direction”.

The Deputy President determined that the direction by the employer to implement a mandatory vaccination requirement was both lawful and reasonable, based upon their need to meet legal obligations for workplace health and safety, consistent with government recommendations, and an acknowledgement that vaccination was the most effective control method.

The Deputy President also stated that the employee failed to provide sufficient documentation to support a valid medical, noting that she

“failed to produce an adequate medical exemption to the policy. Her argument at its strongest consists of a sensitive immune system, that she suffers from coeliac disease and that she alleges to have had a reaction in the past. The Respondent carefully followed a process and provided ample time for the Applicant to provide any information in support of her position; however, she was not able to do so”.

In summary, Deputy President Lake determined that the employer’s policy, insofar as it mandates that the Applicant be vaccinated against influenza, was reasonable and lawful. The employee was required to comply with that policy, either as an express condition of their contract incorporated by reference or as an implied obligation at common law. Finally, that the employee could not present evidence of a valid medical exemption to the policy.

Having considered all of the evidence and submissions in the context of statutory considerations, Deputy President Lake found that the dismissal was neither harsh, unjust or unreasonable.

Ms B v Good Start Early Learning [2021] FWC 2156 (20 April 2021)

For queries about salaries, award entitlements, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 0417 622 178, 1300 925 529 or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

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