The great (jab) debate
On 5 August 2021, food manufacturer SPC, became the first Australian company to mandate that its staff be vaccinated against COVID-19, announcing that staff not vaccinated by November 2021 will be banned from entering any of its locations.
In New South Wales, employers have a duty under the Work Health and Safety Act 2011 to “eliminate risks to health and safety, so far as is reasonably practicable” or “minimise those risks so far as is reasonably practicable.” Arguably this extends to mandating vaccinations.
The Fair Work Commission has considered the issue. In one case it decided that the dismissal of a receptionist at an aged care facility was not unfair in circumstances where she refused to obtain a flu vaccination. The Commission determined the employer was within its rights to dismiss the employee given she had failed to follow a lawful and reasonable direction from her employer. Similarly, in Bou-Jamie Barber v Goodstart Early Learning [2021] FWC 2156, the Commission upheld an employer’s decision to dismiss an early childcare educator who refused to obtain a flu vaccination on the basis she had a “sensitive immune system”, a contention that was not supported by the medical evidence. Most recently, in Glover v Ozcare [2021] FWC 2989, the Commission determined a Home Care Assistant was validly dismissed for refusing a flu vaccination due to a previous “adverse reaction”, a claim unsupported by medical evidence. Commissioner Hunt found the mandatory vaccination was a “lawful requirement for continued employment” with the employer. In each case, the Commission determined that the employee could not perform the inherent duties of their role safely, without being vaccinated.
Whether an employer can require an employee to be vaccinated against COVID-19 will be fact sensitive and will require an analysis of whether the direction is lawful and reasonable. For example, workers who directly engage and interact with vulnerable people, such as aged care workers, can probably be directed to vaccinate – absent some exceptional personal circumstance. On the other hand, an employee who has minimal contact with other people because they work from home or in low contact environs, can probably argue that the risk of them infecting others, or becoming infected themself is low – and therefore a requirement that they vaccinate would not be reasonable. It is probably only a matter of time before the issue is directly considered by the Fair Work Commission or another Court and we will continue to monitor developments.
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