Australia's Fair Work Commission rules on dismissal of employee for refusing to take flu vaccine

A recent decision of Australia’s Fair Work Commission upheld an employer’s reasonable requirement for staff to be vaccinated against influenza, but we caution that this principle remains untested in the Covid-19 vaccination rollout in South Africa

With the ongoing rollout of the Covid-19 vaccine in South Africa, many employers are still considering whether to implement mandatory Covid-19 vaccination policies in their workplaces. In line with our update, Workplace Covid-19 vaccination policies: Key considerations for employers, we continue to caution against employers implementing mandatory Covid-19 vaccination policies. The Commission for Conciliation, Mediation and Arbitration (CCMA) has not yet had to consider the fairness of the dismissal of an employee for refusing to take the Covid-19 vaccine. In a recent decision*, the Fair Work Commission (FWC) in Australia declared the dismissal of an employee for refusing to take the influenza vaccine was fair. Although this decision emanates from Australia, the FWC operates in a similar manner to the CCMA. We unpack the key findings of the FWC below.

Facts

The employer was Goodstart Early Learning, a childcare and early learning facility. The employee was a lead educator until the date of her dismissal.

In April 2020, the employer introduced an immunisation policy that effectively required all employees to take the influenza vaccination unless they had a medical condition that made it unsafe. The rationale for the immunisation policy was that employees largely worked with small children who are, by nature, more vulnerable and have poor hygiene standards which make viral spread easier and potentially more dangerous in other settings. The employer considered that influenza presented a risk to children and employees and made it a requirement of the job for employees to take the influenza vaccination.

The employee claimed that she had a "sensitive immune system" and a history of chronic auto-immune diseases for which she had been treated in the past. She submitted a pathology report dated 2012 as evidence. She also indicated that she had had an allergic reaction to the influenza vaccination 11 years previously, but she could not provide proof of this. She presented two medical certificates, neither of which categorically stated that it was unsafe for her to take the influenza vaccination. On this basis, the employee objected to taking the influenza vaccination in line with the immunisation policy. The employer dismissed her on 13 August 2020 for failing to take the influenza vaccine. There was a 4-month period between implementation of the immunisation policy (April 2020) and the dismissal of the employee (August 2020). The employer's decision to dismiss the employee was not a hasty decision.

FWC proceedings

The employee challenged the fairness of her dismissal at the FWC.

The FWC found that the influenza vaccine did not necessarily provide immunity to all who take it and that its effectiveness varied each year. However, the overall object of the influenza vaccine is to reduce the impact of the influenza virus on the population and any reduction in the transmission and contraction of the influenza virus is positive. The FWC found that the employer had considered the risks in a logical manner, including a legal analysis of the risks. The FWC therefore found the employer's immunisation policy was valid and reasonable.

Based on the insufficient evidence submitted by the employee, the FWC found her dismissal was fair. The employee could not prove that she satisfied the exemption requirement under the immunisation policy, so her refusal to take the influenza vaccine was not justifiable.

Although the FWC's decision is an interesting one, it is important to remember that this is a decision from a foreign jurisdiction. We therefore maintain our view that employers should be cautious about implementing mandatory Covid-19 vaccination policies. Workplace Covid-19 vaccination policies involve several legal considerations where there is a need to balance competing rights and interests. It is advisable for employers who are contemplating the implementation of a compulsory vaccination policy to seek legal advice on whether it would be permissible to do so.


* Ms Bou-Jamie Barber v Goodstart Early Learning [2021] FWC 2156 (22 April 2021)


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