FWC endorses sacking of employees who refused flu vax

In two recent decisions concerning a Queensland childcare worker and a receptionist in a New South Wales aged care facility, the Fair Work Commission (FWC) has upheld the dismissals of both workers for refusing to receive a mandatory flu vaccination during 2020, despite their separate claims they would have experienced an adverse reaction to the jab.

Educator refused flu vaccination by choice

In an involved decision spanning nearly 100 pages, Deputy President Lake of the FWC ultimately upheld the dismissal of a long-serving Lead Educator by substantial childcare employer, Goodstart, in August last year, with the termination having occurred after the employee spent months objecting to receiving a free flu vaccination made available by the employer.  

Goodstart introduced the mandatory flu vaccination policy in mid-2020, requiring more than 17,000 employees to receive the vaccination “unless they have a medical condition which makes it unsafe for them to do so”. Despite accepting medical exemptions from over 100 other employees, Goodstart ultimately terminated the employment of the Lead Educator, who had achieved 14 years of “exemplary” service, when she failed to produce valid medical evidence supporting her claims that she had a “sensitive immune system” and had suffered a prior adverse reaction to the vaccination. Deputy President Lake noted that the employee had received “ample time” to seek medical opinions – the cost of which would have been covered by the employer – but “what she produced was evidence of coeliac disease, vague unsubstantiated accounts of an allergic reaction that was not anaphylaxis, and a statement that she [has] a sensitive gut, which is not known to be a medical condition”.

In finding the Lead Educator’s dismissal to be “unfortunate” but fair, Deputy President Lake concluded the employee had failed to comply with a lawful and reasonable direction of the employer and that the employee had engaged in this course of action by choice. The Deputy President commented that it was important to recognise the employee “did knowingly and consciously object, and in doing so was aware of the consequences”. Deputy President Lake added that the process of termination extended over four months and the “decision to terminate was not a hasty one”.

In summarising, the Deputy President assessed the employer’s policy regarding the flu vaccination to be “a reasonable one” accepting the employer’s evidence that childcare represented a high-risk workplace, due to factors such as the propensity for children to have poor hygiene standards and to fall ill (due to their undeveloped immune systems), coupled with the fact that not all of the children participating in childcare can be vaccinated against infectious disease (due to their age or a medical condition). Deputy President Lake further noted that in adopting the policy, the employer had implemented a communication strategy to inform employees of the need to be vaccinated and provided for medical exemptions to vaccination.

Deputy President Lake ultimately dismissed the unfair dismissal application concluding, “The policy was a reasonable one and the [Lead Educator] chose not to comply. No medical exemption was substantiated and accordingly [her] employment came to an end. I am not satisfied that is unfair.”

Whilst this decision is not the first in which Goodstart has experienced some level of success in justifying the enforceability of its mandatory flu jab policy (see our related article), Deputy President Lake went to considerable lengths to stress that his decision in this instance was “relative to the influenza vaccine in a highly particular industry”. “An attempt to extrapolate further and say that mandatory vaccination in different industries could be contemplated on the reasons [set out in this decision] would be audacious, if not improvident”, he added.

Barber v Goodstart Early Learning [2021] FWC 2156 (20 April 2021)

Evidence fails to confirm flu vax allergy claim

Also in April, Commissioner McKenna of the FWC backed the dismissal of a receptionist from a high-care nursing home in July last year over her refusal to comply with NSW public health orders that no one must enter such a facility without an up-to-date influenza vaccination.

The employer had previously run optional free flu shot programs for its workers but as the COVID-19 pandemic escalated, it told employees in April 2020 it would be mandatory to be vaccinated by 1 May to keep working in the industry, unless they had a contraindication to the flu vaccine. At the time, the employer relied on a media release from the Federal Government’s Aged Care Minister, Richard Colbeck, which indicated the only absolute contraindication was a history of previous anaphylaxis or Guillain-Barré Syndrome following vaccination, or being on check point inhibitor drugs for cancer treatment.

In response, the receptionist, who had worked directly for the employer since 2013 and indirectly, via a contractor, since 2008, sought to argue she had a medical contraindication to getting the vaccine, claiming she had suffered a severe reaction to the flu shot she got (via the employer’s free program) in 2016. The receptionist reported that, around the time of the 2016 flu shot, she developed a severe skin inflammation over parts of her body, including her face; had an intense burning sensation; and that her internal organs were also affected, claiming the condition lasted ten months.

After having only produced a letter from a “Practitioner Chinese Medicine” to support her claim of an adverse reaction in 2016, the receptionist was stood down on 30 April 2020 and afforded opportunity to access her annual leave or long service leave should she wish. The employer’s correspondence also encouraged the receptionist to submit “a medical certificate which mentions the contraindications as identified in Minister [Colbeck’s] advice” to enable the receptionist to return to her position. In addition, the employer’s letter reiterated that the existing public health order identified that “people are not to enter or remain on premises of residential aged care facility if the person does not have an up-to-date vaccination against influenza, if the vaccination is available to the person”. Furthermore, the receptionist was afforded opportunity to meet with the employer and provide a response on 4 May, with a support person present, with the employer concluding the correspondence by saying, “…please be advised that if you still refuse to receive the influenza vaccination following our meeting, the outcome may be employment determining”.

As part of the meeting of 4 May, the receptionist submitted a “Letter of support” from a GP indicating simply that she had a “medical contraindication” to the flu shot. The receptionist had also signed a “Patient Declaration” immediately under the doctor’s signature confirming that “the information on which this letter of support has been issued is true and correct”. As the receptionist had also submitted an alternative doctor’s letter which identified she required carer’s leave for the month of May, the outcome of the meeting was that it was agreed the receptionist would take carer’s leave through to 1 June 2020 inclusive. The approved period of carer’s leave was then extended a further month, to 29 June 2020.

The receptionist’s employment was subsequently terminated following a show cause meeting of 2 July 2020, because she had attended for work on both 1 June (whilst on approved carer’s leave) and 30 June whilst unvaccinated and she continued to refuse to receive the flu vaccination without providing suitable medical evidence to support her claim of medical contraindication.  

In upholding the dismissal of the receptionist, Commissioner McKenna noted that there was no medical evidence submitted that successfully established “a cause-and-effect between the 2016 flu shot and the [purported adverse reaction] such as to demonstrate any medical contraindication to the influenza vaccination”.   

In reference to the second doctor’s “Letter of Support” the receptionist submitted as part of the show cause meeting of 2 July, Commissioner McKenna found it “reasonably clear” the GP did not personally examine the receptionist in the 14 months following her 2016 vaccination and relied only on what she said, while it remained unclear what other evidence he’d had to rely upon in making his assessment (of her reported adverse reaction), aside from viewing undated photos shown to him by the receptionist.

In contrast, the employer relied on the evidence of a specialist immunologist, who was cross-examined during proceedings, who offered that, “Based on the information available to me it is not on the balance of probability likely that the rash that [the receptionist] suffered from was related to prior influenza vaccination and there was no other evidence of a contraindication to her having influenza immunisation”.  

Commissioner McKenna accepted the opinion of the immunologist and found the employer had taken an “objectively prudent and appropriate approach” to relying on the Minister for Aged Care’s media release to prevent the receptionist from working whist unvaccinated. Rejecting comments made by the receptionist’s legal counsel that the employer’s reliance on the media release had been “pig-headed”, the Commissioner instead concluded it would have been “foolhardy indeed” to ignore or misconstrue the information that had been informed by the Chief Medical Officer at the time.  

The Commissioner was not able to conclude the termination was harsh, unjust or unreasonable and the receptionist’s application was dismissed.

Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWC 1818 (29 April 2021)

UPDATE – No success on appeal, dismissal upheld

On 27 September 2021, a majority Full Bench of the FWC dismissed the receptionist’s application to appeal Commissioner McKenna’s decision of April, endorsing the original finding that her dismissal was not unfair. Catch up on the appeal outcome in our related news post.