international employment law firm alliance L&E Global

Australia: Refusing a Flu Vaccination found to be a Valid Reason for Dismissal

With the cooler months approaching, employers are left to consider what are the best measures to adopt to prevent their workers from becoming sick. One such measure is for employees to receive a flu vaccination. Flu vaccinations in the workplace can result in increased productivity, and reduced absenteeism among workers. However, vaccinations are a physically invasive procedure and some employees may refuse a vaccination for personal reasons.

An unfair dismissal case handed down recently, Ms Bou-Jamie Barber v Goodstart Early Learning [2021] FWC 2156 (Barber Case), considered whether a childcare worker refused a lawful and reasonable direction from her employer, Goodstart, when she declined a mandatory flu vaccination.

In the Barber Case, Ms Barber, who had 14 ‘exemplary’ years with Goodstart, claimed that she had been unfairly dismissed because she refused to get a flu vaccination. Goodstart relied upon its policy which required its employees to have the flu vaccination “unless they have a medical condition which makes it unsafe for them to do so”.

Ms Barber asserted that she could not receive the vaccine as it would have had a detrimental effect on her health. However, she did not provide any medical evidence to support her claim that she had a “sensitive” immune system. Goodstart offered to cover the cost of Ms Barber visiting a medical practitioner and provided Ms Barber with ample time to do so. However, multiple doctors refused to provide her a statement that she should be exempt from the vaccination on medical grounds.

The Fair Work Commission dismissed Ms Barber’s case and held that Goodstart had a valid reason for termination based on Ms Barber failing to comply with a lawful and reasonable direction. In doing so, the FWC noted:

  • Ms Barber knowingly and consciously objected to the vaccination, and in doing so was aware of the consequences;
  • Ms Barber works in an environment which cares for the vulnerable, namely children;
  • the decision to terminate her employment was taken over a period of 4 months and was not a hasty decision; and
  • the dismissal was fair in all the circumstances, particularly as Ms Barber failed to establish that she had a valid medical exemption.

The FWC also rejected Ms Barber’s assertion that being forced to vaccinate constituted assault and battery.

While the case could still be the subject of an appeal, for now, it provides valuable insight to employers on their rights in respect to flu vaccinations. Although the FWC made it clear that the decision “relates specifically to the influenza vaccination in a childcare environment”, the case highlights that an employer’s direction to get a vaccination can be considered lawful and reasonable depending on the circumstances. Other factors to consider include the employer’s relevant policies on the matter, the environment in which the employee works in and the industry of the employer.