In a much-anticipated decision, the Fair Work Commission (FWC) has upheld an employer’s dismissal of a childcare worker who refused to adhere to its mandatory influenza vaccination policy (Policy) and receive a free influenza vaccine.

the facts

In June 2020, as a response to circumvent the spread of influenza in its childcare centres, Goodstart Early Learning (Goodstart) introduced the Policy, requiring its 17,500 employees to be vaccinated unless they had reasonable medical grounds to refuse.

The employee in question refused to be vaccinated on the basis that she had a sensitive immune system and had previously suffered from an allergic reaction to the vaccine.  However, when Goodstart requested supporting medical documentation, the employee was unable to provide satisfactory evidence to justify her refusal.

After providing the employee with over four months to provide medical evidence to support her refusal, Goodstart made the decision to terminate her employment, on the basis that she did not have the capacity to undertake the inherent requirements of her role.

Disputing the reason for her dismissal, the employee lodged an unfair dismissal application.

the findings

The FWC dismissed the employee’s application and held that there was a valid reason for her dismissal.  However, the FWC took issue with Goodstart’s basis for terminating the employee’s employment.

Deputy President Lake stated that he was “not satisfied on the material before [him] that the [employee] lacked capacity to perform the inherent requirements of her role”.  This was because the employee had successfully performed her role for the 14 years prior to the introduction of the Policy and it appeared that the Policy was seeking to “artificially impose an inherent requirement upon her”.

Ultimately, Deputy President Lake concluded that Goodstart had issued a lawful and reasonable direction to its employees regarding the vaccination. Accordingly, the employee’s refusal to follow that direction, constituted a valid reason for the dismissal.

employers be warned

In making his decision, Deputy President Lake made it clear that the decision was “relative to the influenza vaccine in a highly particular industry”.

It is important to remember that decisions made by employers in relation to mandatory vaccinations should turn on the circumstances of each case, and especially the industry concerned.

practical tips for employers

This decision affirms that employers:

  • should consider whether vaccines should be mandatory to meet occupational health and safety obligations in their industry;
  • should seek to understand an employee’s reasons for refusing a mandatory vaccine and whether an alternative outcome or arrangement is available; and
  • may take disciplinary action against employees who refuse to receive mandatory vaccines, if such disciplinary action is reasonable in all the circumstances.