In a significant decision acknowledging the “scarce” guidance on compulsory workplace COVID-19 vaccinations, the Fair Work Commission has upheld a big employer’s dismissal of a childcare worker for refusing to take a free flu shot.
Rejecting the lead educator’s argument that Goodstart Early Learning’s mandatory vaccination policy represented an unlawful assault, Deputy President Nicholas Lake determined that her inability to back up claims of a “sensitive immune system” and a prior adverse reaction vindicated the employer’s decision to dismiss her in August last year.
Mindful of what he called the “unnatural[ly] high” interest in vaccinations, however, the deputy president sought to categorise his ruling as specific to the circumstances of the case.
“In an attempt to limit a maladroit application of these findings in varied circumstances, I make the following remark: it is beyond the scope of this decision to consider whether the conclusions above extend even as far as the entirety of [Goodstart’s] business, as the role each employee performs in fulfilling [Goodstart’s] undertaking may differ,” Deputy President Lake said.
“An attempt to extrapolate further and say that mandatory vaccination in different industries could be contemplated on the reasons [contained in the decision] would be audacious, if not improvident.”
Noting that “guidance surrounding how [COVID-19 vaccinations] will be administered in the workplace is scarce”, the deputy president emphasised that his decision “is relative to the influenza vaccine in a highly particular industry”.
“While this may seem obvious to most, given the climate we find ourselves in, it feels appropriate to make this declaration.”
Deputy President Lake’s comments came after considering the merits of a case in which, after 14 “exemplary” years with Goodstart, it dismissed the Gladstone-based lead educator four months after she first raised objections about having a flu shot.
Her initial objections over purported sensitivities and reactions came into sharper focus in June last year when Goodstart publicised a new policy requiring its 17,500 employees to have flu inoculations “unless they have a medical condition which makes it unsafe for them to do so”.
“On the [worker’s] own account, multiple doctors refused to provide her a statement that she should be exempt from vaccination,” said Deputy President Lake.
“In a scenario where the cost of visiting medical practitioners was covered by [Goodstart], there was no barrier to collecting this information, if it existed.
“In the absence of that evidence, it is unclear how I, or Goodstart, could be satisfied that there was valid ground for a medical exemption.”
The worker, he continued, received “ample time” to seek medical opinions, “and what she produced was evidence of coeliac disease, vague unsubstantiated accounts of an allergic reaction that was not anaphylaxis, and a statement that she a sensitive gut, which is not known to be a medical condition”.
“None of the above satisfies me that a medical exemption should have been granted in the circumstances.”
Not an inherent requirement
While finding the worker had no medical basis for refusing to take a flu shot, the deputy president also took issue with Goodstart’s basis for dismissing her.
“Now I must turn to a question which is not answered by the more than two thousand pages of material before me: why [Goodstart] sought to dismiss the [worker] for a purported lack of capacity and not for alleged misconduct – that is, a breach of the mandatory vaccination policy they had recently implemented.”
“It appears that at some unidentified point, [Goodstart] abandoned misconduct in favour of capacity.
“As will be seen throughout my consideration, I find this to be an unfortunate choice by [Goodstart].
“I say this because I am not satisfied on the material before me that the [worker] lacked capacity to perform the inherent requirements of her role.
“I am satisfied however, that a valid reason for dismissal exists, by virtue of [her] conduct in failing to comply with the lawful and reasonable direction of [Goodstart] to be vaccinated against influenza.”
Deputy President Lake observed that, had the worker been dismissed for misconduct, “the submissions and subsequent litigation would have been made far simpler”.
“Further, it would have allowed the [worker] to properly engage with the legal issues that are relevant, as opposed to submissions based on a lack of capacity.”
It found it “difficult” to accept that vaccination constituted an inherent requirement of the worker’s job.
“Further, where [she] has successfully performed her role for many years, it is difficult to see how the policy is not simply seeking to artificially impose an inherent requirement upon her.”
Ultimately, however, the deputy president concluded that as the direction to be vaccinated was lawful and reasonable, “a valid reason for termination exists based on the [worker’s] conduct in failing to comply with that direction.”
Threat idea “fanciful”
Deputy President Lake, in finding the dismissal lawful, had first to consider the worker’s assertion that being forced to vaccinate constituted assault and battery.
“The allegation of battery is likely to fail,” he observed.
“It is clear that [the worker] never actually received the vaccination; she asserted her right not to be vaccinated and therefore the lengthy medical exemption and show cause process detailed above was undertaken.
“Battery requires ‘the defendant doing an act which causes physical contact with the plaintiff’.
“No contact with the [worker] was alleged at any point and I am not satisfied the action would be successful.
“The allegation of assault is also likely to fail.
“On the evidence before me, the [worker’s] alleged perception that Goodstart would threaten to inflict a vaccination on her does not seem objectively reasonable.
“From the material filed by both parties, it is apparent that the worst possible outcome for [her] was termination of her employment.
“The idea that Goodstart would threaten to [her] that they would vaccinate her seems fanciful.
“It does not seem far-fetched to say that the process of implementing mandatory vaccination may have made [her] feel threatened that she must provide her consent to the vaccination, or face termination (or otherwise qualify for a medical exemption).
“However, this is not the same as the threat of being forcibly vaccinated.
“For the reasons above, I am not satisfied an action in assault would be successful.”
Failed to comply “by choice”
On the question of fairness, the deputy president noted that while the “exemplary and longstanding” worker’s dismissal was “unfortunate”, it was important to recognise that she “did knowingly and consciously object [to vaccination], and in doing so was aware of the consequences”.
“The process of termination extended over 4 months and the decision to terminate was not a hasty one,” he said.
“The dismissal can be considered fair in all the circumstances when considering the paucity of medical evidence presented by the [worker] and the lengthy process attempted to obtain said medical evidence.
“The [worker] put forward numerous arguments around the implementation of the policy being flawed, the policy not bending to meet [her] circumstances, and [Goodstart] not having any medical evidence that it was safe for [her] to be vaccinated.
“Ultimately, these concerns and problems all come back to the inability of the [worker] to provide any material that indicates there was a genuine risk in her being vaccinated.
“The policy was appropriately adapted and had any evidence been presented that there was a real medical exemption it would have been considered and accepted, as was the case with over one hundred other Goodstart employees.
“[Goodstart] made its requirements abundantly clear and the [worker] failed to comply, by choice.
“Accordingly, her employment was terminated.
“Having considered all of the evidence and submissions in the context of the statutory considerations I am not satisfied the dismissal was harsh, unjust or unreasonable.”
Logical and legal analysis of risks
Observing that Goodstart’s enterprise revolves around caring for children with generally poor hygiene, Deputy President Lake said it adopted a mandatory flu vaccination policy after considering alternatives.
“Once adopted, [Goodstart] implemented a communication strategy to inform employees of the need to be vaccinated.”
“They ensured that they communicated broadly and anticipated that there might be medical grounds for the vaccination to be unsafe.
“Accordingly, the policy provided for a medical exemption to vaccination.
“The exemptions were managed first by the People and Culture team and then reviewed by a panel of senior Goodstart staff of various disciplines.
“The panel was to review evidence provided and determine whether to accept the exemption, request further information, or move to termination.
“Several medical responses were accepted, and exemptions were provided.
“In the case of the [worker], the medical information provided by her practitioners was not sufficient.
“Further information was requested but it did not help substantiate a valid medical exemption and ultimately, [her] employment was terminated.
“This is a case where the employer made a logical and legal analysis of the risks and hazards in the workplace, developed a response and implemented a policy to target that risk.
“The policy was a reasonable one and the [worker] chose not to comply.
“No medical exemption was substantiated and accordingly, [her] employment came to an end.
“I am not satisfied that is unfair.
“The application is dismissed.”
Deputy President Lake’s ruling follows Deputy President Ingrid Asbury’s decision last November in which she found it arguable another Goodstart worker unreasonably refused a lawful direction when declining a mandatory flu vaccination.
The Federal Circuit Court will meanwhile on May 11 mediate an ABC make-up artist’s discriminatory adverse action claim in which she is suing the broadcaster for over its decision to put her on paid leave followed by unpaid personal leave last September when she refused to comply with its mask-wearing direction.
Ms Bou-Jamie Barber v Goodstart Early Learning [2021] FWC 2156 (20 April 2021)
