In a decision that will clearly have implications for employers making the COVID-19 vaccination mandatory, the Fair Work Commission has found that a mandatory flu vaccination policy was lawful and reasonable and the employee’s refusal to be vaccinated was a valid reason for the termination of the employment.

The Facts

The Employee was employed by the Goodstart Early Learning as a Lead Educator.

In April 2020, Goodstart introduced an immunisation policy, requiring that all staff must receive the influenza vaccination unless they have a medical condition which makes it unsafe for them to do so. 

The employee said that she has a sensitive immune system, and she therefore raised her objections to the influenza vaccination with Goodstart.

Ultimately, Goodstart determined that the medical certificate provided by the employee was not sufficient to support an objection the influenza vaccination, and the employee’s employment was terminated on 13 August 2020 for her failure to be vaccinated and meet the inherent requirements of her role.

The Findings

Deputy President made the following key findings:

  1. It was reasonable for a childcare provider to mandate flu vaccination for staff who deal with children on such a regular basis. The childcare industry is a highly regulated environment, which created statutory obligations beyond that of a normal employer, whereby safety and quality care are paramount.
  2. The requirement for mandatory vaccinations was lawful. The Commission rejected the assertion that the requirement to vaccinate represented the tort of assault or battery.
  3. The employee did not present evidence of a valid medical exemption to having the vaccine. On the employee’s own account, multiple doctors refused to provide her with a statement that she should be exempt from vaccination.
  4. Had any evidence been presented that there was a real medical exemption it would have been considered and accepted, as was the case with other Goodstart employees.
  5. Goodstart made its requirements abundantly clear and the employee failed to comply, by choice.

The Deputy President made it clear that his findings could not be extrapolated regarding mandatory vaccination in different industries.

Nevertheless the decision points in the following direction regarding the COVID-19 vaccine.

Firstly, the nature of the industry will be critical.  Where there is a higher risk of contracting the COVID-19 virus (e.g. hotel quarantine) or a higher risk of serious illness or death (aged care) it is likely that a mandatory COVID-19 vaccination policy will be lawful and reasonable.

Secondly, in seeking to come within a medical exception, the employee will have to do more than simply assert that the COVID-19 vaccine will be harmful.  The employee will need cogent medical advice that the vaccine will be clearly harmful to the employee.

Thirdly, while the decision is specifically about the childcare industry, as vaccines become more widely available and proved to be safe, it is more likely that an employer’s direction to be vaccinated against COVID-19 will be reasonable, particularly where there is a higher risk of contracting the COVID-19 virus or a higher risk of serious illness or death, and lawful given that employers have a strict statutory duty to do what is “reasonably practicable” to protect the health of other employees and customers/visitors.

The above decision provides important guidance on employers making the COVID-19 vaccine mandatory.  However, the delays in the roll-out should be factored into the decision-making process.

Given the uncertainty in this area, we recommend employers:

  • Consider implementing a vaccination policy in line with best practice in this area.
  • Take advice before directing employees to take the COVID-19 vaccine.