There currently is a vaccination program being undertaken in Australia in relation to the Covid-19 vaccination. There are many people wondering whether they will be required by their employer to be vaccinated in order to continue to carry out their job.
The Fair Work Commission (FWC) recently delivered a major decision in relation to a childcare employee who was sacked for failing to have a mandatory flu vaccination: Barber v Goodstart Early Learning  FWC 2156 (20 April 2021).
In that case, the employee was an educator in a childcare centre operated by Goodstart Learning. In June 2020, Goodstart commenced a program of mandatory flu vaccinations for their employees. All employees were directed to have a flu vaccination, at the employer’s cost, unless the employee had a medical condition that made it unsafe for them to do so.
The employee in this matter had coeliac disease and said she had a sensitive immune system. She also said she had previously reacted adversely to a flu vaccination. However, despite being given an extended opportunity to do so, the employee could not provide a medical certificate to the effect that it was unsafe for her to have a vaccination.
The employee was dismissed on the basis that the vaccination was an inherent requirement of her position. Deputy President Lake of the FWC did not agree with this and found that the employee did not lack capacity to perform the inherent requirements of her of her role.
However, the Deputy President found that the failure of the employee to follow a lawful and reasonable direction of the employer to have a flu vaccination was a valid reason for her termination and her unfair dismissal application was dismissed.
The Deputy President held that it was reasonable for a childcare provider to make it mandatory for staff who deal with children on such a regular basis in such close proximity to have a flu vaccination.
The Deputy President made it very clear that this decision was specific to the facts of the matter, including that the employment involved working very closely with children, some of whom were too young to be vaccinated and where social distancing was often not possible.
The Deputy President also made it very clear that this decision did not mean that there could be a wider application of the decision to other occupations, even including other roles within Goodstart.
There is yet to be a decision specifically on Covid-19 vaccinations, but no doubt it is likely that the principles in this decision could also be applied in a situation where a Covid-19 vaccination is required by an employer. It really does depend on the industry and the type of work the employee carries out.
An employer cannot forcibly vaccinate its employees. However, if you have a job where it is held to be a reasonable and lawful direction by your employer that you have a vaccination, a consequence of you not following that direction may be termination of your employment. Also, if you have a job where there is a Public Health Order in place at the time, making it mandatory for you to have a particular vaccination, such as was the case in certain aged care employment previously, not having that vaccination may be a reasonable ground for terminating your employment.
Knowledge is power. If this issue affects you please don’t hesitate to contact Julie Burton, one of our experts in employment law.