In two recent decisions (Bou-Jamie Barber v Goodstart Early Learning & Jennifer Kimber v Sapphire Coast Community Aged Care Ltd), the Commission found it was not unfair for the employer to dismiss the employee for refusing a direction to receive the flu vaccination. Despite these findings, these decisions should not stand for a general proposition that there will always be a fair dismissal if an employee refuses a vaccine required under an employer’s mandatory vaccination policy. The Commission reached a different conclusion about what constituted a valid reason for the employee’s dismissal in each case.

In Bou-Jamie Barber v Goodstart Early Learning[i], the Commission rejected an argument by the employer, that the employee could not perform the inherent requirements of her job by not receiving a vaccine (finding instead that her dismissal was because of a failure to follow a reasonable or lawful direction). In Jennifer Kimber v Sapphire Coast Community Aged Care Ltd[ii] the Commission found that although there was not any reasonable or lawful direction by the employer requiring the employee to have an influenza vaccine, the employee could not perform the inherent requirements of her position in aged care.

The facts of Bou-Jamie Barber briefly were –

  1. Ms Barber was employed as a lead educator at Goodstart Early Learning which had a mandatory immunization policy requiring all staff to receive the influenza vaccination unless they had a medical condition which made it unsafe for them to do so.
  2. Ms Barber suffered from a sensitive immune system and provided medical certificates certifying that she had an allergic reaction when she had a flu vaccine in the past with two certificates stating that, “it may be unsafe for her to have an influenza vaccination.”
  3. Ms Barber also expressed a “personal objection” against the vaccination.
  4. The employer provided Ms Barber with an opportunity to provide further information because her medical certificate was not sufficient. However, Ms Barber relevantly stated that she could not have her doctor sign a medical form which Goodstart required her to complete because it may be used legally against him. Instead her doctor completed “a conscientious objection document”.
  5. Ultimately, Ms Barber was not able to provide any further medical information which would satisfy the flu shot exemption in the employer’s policy, and her employment was terminated.
  6. Goodstart cited its duty of care to limit the risk of serious illness to employees and the children in its care, stating that the “early learning environment can present an increased exposure to vaccine preventable diseases like the flu for both children attending the Centre and Goodstart employees”.
  7. DP Lake determined that Goodstart’s decision to terminate did not really relate to “the inherent requirements” of Ms Barber’s job (even though the employer argued this). Rather the reason for termination related to the conduct (not capacity) of the employee. The Commission had to therefore assess whether the mandatory vaccination direction was lawful and reasonable, which if not followed, would constitute a valid reason for termination.[iii]
  8.  The Commission found that –
  •  the Policy was reasonable because of Goodstart’s own Health and Safety obligations to implement a safe environment for children in its care, and manage the risk of the spread of infection.
  • Goodstart operated in an industry which was highly regulated and where safety was of paramount importance [iv].
  • Expert evidence about the effectiveness of the vaccine to reduce the spread of an infection (even if slightly effective) was relevant and a reasonable employer could still adopt a policy of mandatory vaccination.[v].
  • The employee held an instrumental role in the business so that her vaccination was reasonable.
  • The direction was not unlawful, rejecting a novel argument that if an employee refused to receive a vaccination that would constitute the tort of battery if she was vaccinated. The refusal in itself could not amount to an assault if the vaccination did not take place.
  1. Ms Barber did not present sufficient medical material to support the exemption in the policy. Had she done so based on an opinion of an infectious disease expert or her own specialist regarding her condition, the employer would have been bound to consider this [vi].
  2.  In Jennifer Kimber v Sapphire Coast Community Care, the employee worked in an aged care facility and refused to have a flu vaccination in 2020, stating she had developed a severe reaction when she had the injection in 2016. Like Ms Barber, Ms Kimber was not able to provide any contemporaneous medical evidence about her condition, instead relying on her general practitioner’s certificate based on her report to the practitioner.[vii]
  3. The Commissioner noted that although Ms Kimber was entitled to her personal beliefs about the effects of a flu vaccination and was entitled to make her own personal decision about the flu vaccination, the employer’s mandatory flu vaccination for residential aged care workers was required by the NSW Government (and also apparently “urged” by the Federal Aged Care Minister following the onset of the covid-19 pandemic in a media release).
  4. What is striking about the decision in Kimber, is that although the Commission placed much weight on the NSW Government’s Health Policy Order requiring aged care workers to receive a vaccination, and noted that the Order contained an exemption for employees who have health “contraindications”, the Commissioner upheld the facility’s CEO’s own decision not to apply for an exemption as being “necessary to protect the health and wellbeing of the residents and staff.”[viii] Neither the Employer nor Ms Kimber applied for an exemption for Ms Kimber, and without it, Ms Kimber could not perform her role.[ix]

Key notes

  1. The cases demonstrate that the Commission will often consider the important health considerations including the nature of the business in which an employee works to assess whether a mandatory vaccination policy is reasonable.
  2. An employee working in childcare or aged care settings (where there may exist regulatory requirements for vaccinations of staff) who then refuse a particular vaccination without a proper medical basis (not supported by medical evidence) may face an allegation by their employer that that have not followed a reasonable and lawful direction of their employer and/or met the inherent requirements of their job.
  3. An employee’s failure to follow a reasonable and lawful vaccination direction, does not simply mean that an employer will always have a valid reason for their dismissal, or their dismissal is fair, as other factors will need to be considered.
  4. In relation to mandatory vaccination directions by employers, an opportunity should be afforded to any employee to raise any specific health needs, which should be weighed up against their general health and safety obligations and any additional obligations applying in the industry.

This article should not be taken as legal advice by any particular party or entity.  If you require any specific advice in relation to circumstances of your case, please contact our office for legal advice.

[i] [2021] FWC 2156, Lake, Deputy President
[ii] [2021] FWC 1818, McKenna, Commissioner
[iii] In any event, the Commission decided that it was not an inherent requirement of Ms Barber’s position that she must be vaccinated ([2021] FWC 2156 at para 296).
[iv] Ibid, at paragraph 319 and 320
[v] Ibid at paragraph 329 and 330
[vi] Paragraph 365
[vii]  [2021] FWC 1818 at para 6.
[viii] Ibid at para 83.
[ix] McKenna C., nonetheless found that if a direction was given to Ms Kimber, the direction would have still been lawful and reasonable in light of the NSW Government’s Health Order for aged care workers to be vaccinated (Ibid at para 57)