By Samantha Maddern, Partner 

Three recent decisions of the Fair Work Commission (FWC) upholding the dismissal of an employee who refused to get vaccinated might lead one to conclude that the matter is settled in relation to COVID vaccinations.[1] Not so fast. Each of these cases turned on their own very specific facts and, as a general rule, an employer will not have a right to require an employee to be vaccinated against COVID, much less dismiss them for refusing to do so. However, an employer must still take all reasonably practicable measures to provide a safe workplace and, in some cases, this might warrant making COVID vaccinations compulsory for certain staff.

The FWC’s decisions

Let’s look at the FWC decisions. In all three cases:

• the employee who refused the flu vaccine worked in a very specific (and vulnerable) industry – childcare, aged care or home care;
• the FWC found the employer’s direction to the employee to be vaccinated was lawful and reasonable, and the employee’s failure to comply amounted to misconduct and was therefore a valid reason for dismissal; and
• the decision to terminate was not hastily made and the employee was well aware of the possible consequences if they persisted in their refusal to be vaccinated (which meant the dismissal was procedurally fair).

Further, in the Sapphire Coast Community Aged Care case, a public health order (PHO) was in place prohibiting the entry of persons into high-care nursing homes without having an up-do-date flu vaccination. This meant the employee who refused to be vaccinated could not perform the inherent requirements of her job as a receptionist. The Commissioner noted that it would have been an offence under the PHO (with the risk of fines and imprisonment) had the employer allowed the unvaccinated receptionist to continue to attend work.

In the Goodstart Early Learning case, the FWC member was at pains to stress that his decision might not have been the same in respect to another employee at the same workplace in a different role.

In the Ozcare case, the care assistant visited vulnerable clients in their homes and there was evidence, accepted by the FWC, that she could become a flu ‘super spreader’. The FWC agreed that the employer’s decision to mandate flu vaccinations for all client-facing employees, without any exemption, was lawful and reasonable. In the other two cases, the employer did not require employees to be vaccinated if they had a medical exemption but, despite being given ample time to provide credible medical evidence to justify an exemption, the employee was unable to do so.

The upshot of these decisions is that they do not provide any guidance or rules for employers in general in respect to COVID vaccinations.

Can an employer require an employee to be COVID-vaccinated?

As a general rule, no. There are currently no laws or public health orders in Australia that specifically enable employers to require their employees to be vaccinated against COVID (though this could change).[2] The Australian Government’s current policy is that receiving a vaccination is voluntary, although it is strongly encouraging as many Australians as possible to be vaccinated. There are, however, limited circumstances where an employer may require their employees to be vaccinated and the above cases are examples of such circumstances. The FWC’s decisions to date indicate that whether an employer can require their employees to be vaccinated against COVID is highly fact dependent, taking into account the particular workplace and each employee’s individual circumstances.

An employer should consider:

• whether a specific law (such as a state or territory PHO) requires an employee to be COVID vaccinated;
• whether an enterprise agreement, other registered agreement or employment contract includes a term conferring on the employer the right to mandate COVID vaccinations (as opposed to flu vaccinations);
• whether (in the absence of an express provision) it would be lawful and reasonable for the employer to direct employees to be vaccinated, which must be assessed on a case-by-case basis and will depend on factors such as whether the employee has a legitimate reason for not being vaccinated (usually, a medical reason supported by credible medical evidence) and whether the employer operates in a high-risk environment (for example, health care, aged care, child care, meat processing); and
• even where there is an express term in a contract or agreement making COVID vaccinations mandatory, whether the term complies with anti-discrimination laws.

Is a direction to get the COVID vaccine lawful and reasonable?

Again, this will depend upon the individual’s circumstances and it will only really become a live issue when an employee refuses to comply and the employer is contemplating taking disciplinary action. On its own, the COVID pandemic does not automatically make it reasonable for an employer to direct their employees to be vaccinated. A direction may be more likely to be reasonable where:

• employees interact with people who have an elevated risk of being infected (eg employees working in hotel quarantine or border control); or
• employees have close contact with people who are particularly vulnerable to the adverse health impacts of COVID (eg employees working in health care or aged care).

What happens if an employee refuses to be vaccinated?

Before taking any action, we recommend that the employer try to ascertain and discuss the employee’s reasons for their refusal (noting this may raise breach of privacy concerns and should be handled sensitively). The employee may have a medical condition which means the COVID vaccine may not be safe for them to take. In this instance, the employer should consider if there are other options available to keep the workplace safe instead of vaccination.

Whether disciplinary action is reasonable will depend on the circumstances. If the employee is unable to perform the inherent requirements of their job by remaining unvaccinated, as in Sapphire Coast, this may justify dismissal. If the refusal amounts to a failure to comply with a lawful and reasonable direction, this may also justify dismissal.

If the employee’s refusal is based on alleged medical grounds, the employer should ask the employee to provide medical evidence to support this assertion and, a failure to do so, may mean the termination of the employee’s employment is lawful and fair.

Can an employer require a prospective employee to be vaccinated before starting work?

In most circumstances, yes, but this could amount to unlawful discrimination or lead to a general protections claim if the employee refuses and is not then employed. So, an employer should tread carefully before imposing such a blanket pre-employment requirement.

Further assistance?

As the pandemic continues to wreak havoc in certain parts of the country, and the vaccination rates remain relatively slow, some employers will need to consider whether it should be directing, rather than simply encouraging, employees to be vaccinated against COVID.

Rachael Sutton, our Sydney partner, acted for Sapphire Coast Community Aged Care in the FWC proceedings. Rachael, like all our team at Mills Oakley can assist with any queries you may have on the vexing issue of vaccinations.

[1] Glover v Ozcare [2021]FWC 2989 (26/5/21); Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWC 1818 (29/4/21); Barber v Goodstart Early Learning [2021] FWC 2156 (20/4/21)

[2] At the time of writing, the Prime Minister Scott Morrison is urging aged care facilities to mandate COVID vaccinations for all staff. State and Territory governments may at any time issue public health orders or regulations requiring vaccinations in particular industry sectors.