‘No Jab No Work’? Maybe!

Limebite 04/21

Authors:

Joel Zyngier, Maddison Harrington

On 22 April 2021, the Fair Work Commission (FWC) delivered a significant unfair dismissal decision on mandatory vaccinations in the workplace. The case, Barber v Goodstart Early Learning [2021] FWC 2156 (Barber), involved a childcare worker who was dismissed for refusing to get a flu vaccination. It has important lessons for employers and implications for EPL/ML insurers.

The facts

In Barber, the employee had been employed with the employer in a number of roles over the course of 19 years. In 2020, the employer implemented a mandatory flu vaccination policy and notified it to all employees. Flu vaccinations were free. The policy required employees to be vaccinated unless they had a medical exemption and established a review panel to consider and determine exemptions on a case by case basis.

The employee objected to mandatory vaccination, saying she had a sensitive immune system and had experienced adverse reactions to the vaccine some 10 years earlier. The employer consulted with the employee and gave her opportunities to provide medical evidence supporting her inability to get the flu vaccine. She provided medical certificates but the employer did not consider they constituted satisfactory medical evidence.

Consequently, after being given an opportunity to respond to the reasons for proposed dismissal, the employee’s employment was terminated with immediate effect because she refused to be vaccinated. The employer asserted this meant she was unable to meet the inherent requirements of her role.

What the FWC said

The employee made an unfair dismissal claim and sought reinstatement with backpay as a remedy (and in the alternative, compensation). The FWC found, in favour of the employer:

the policy that mandated the employee be vaccinated against influenza was lawful and reasonable
the employee was required to comply with that policy under her contract of employment
the employee did not present evidence of a valid medical exemption, and
the employee failed to comply with a lawful and reasonable direction of her employer, which is a valid reason for dismissal and dismissal was a proportionate sanction in the circumstances.

However, the FWC found that vaccination did not constitute an inherent requirement of the employee’s role and was not a ‘capacity’ issue. Rather, it was a conduct issue. Even though the employer did not dismiss the employee or run its case on the basis of misconduct, the FWC was still able to find that the valid reason warranted the dismissal and had been fairly put to the employee such that she had received procedural fairness.

Lessons for employers and implications for their insurers

Barber is the latest in a series of ‘workplace vaccination’ unfair dismissal cases in the FWC (see our previous article) and no doubt, not the last. As COVID-19 vaccinations are rolled out across Australia, we expect an increase in similar-type unfair claims and also general protections (‘adverse action’ applications and discrimination complaints dealing with workplace vaccination issues.

Helpfully though, Barber contains valuable lessons for employers who have or are considering similar policies. Employers should ensure mandatory vaccination policies (like all policies) are lawful and reasonable – inherently connected with their business and the employee’s job. Directions are more likely to be reasonable if they are based on objective evidence, government guidelines or guidance from work health and safety regulators. Employers should also ensure they have fair and reasonable procedures for implementing the policies, such as reviewing and determining exemptions, and that employees are trained in policies. Employers must also follow fair dismissal procedures.

Employers should also avoid making commonplace mistakes of asserting ‘failure to meet inherent requirements’ or ‘lack of capacity’ as reasons for dismissal when in fact an employee has engaged in misconduct. Employers considering dismissal for these options should seek legal advice before proceeding.

Insurers providing EPL/ML insurance products may expect a relatively rapid uptick in employment practices claims arising from workplace vaccinations, including various types of alleged employment practices liability wrongful acts. Underwriters of EPL/ML products should consider whether this is a new risk element in particular industries or sectors and whether proposal/renewal forms need questions added regarding mandatory vaccination policies. Claims managers dealing with such claims need to consider the impact on defence costs reserving and settlement strategies in such matters, particularly where claimants are seeking reinstatement, as in Barber.

The FWC noted that any attempt to extrapolate the finding and say that mandatory vaccination in different industries could be contemplated on the reasons in this case would be ‘audacious’, if not ‘improvident.’ However, the other principles, lessons and implications are still relevant and important for employers and insurers.

Please contact Gilchrist Connell’s Workplace Law team if you need assistance with the above issues or any other workplace relations and safety law matter.

Joel Zyngier Principal , Melbourne Direct: +61 3 9611 8812 jzyngier@gclegal.com.au

This publication constitutes a summary of the information of the subject matter covered. This information is not intended to be nor should it be relied upon as legal or any other type of professional advice. For further information in relation to this subject matter please contact the author.