Monday, 10 May 2021

Employees’ Dismissals for Vaccine Refusal Not Unfair – Ms Bou-Jamie Barber v Goodstart Early Learning and Jennifer Kimber v Sapphire Coast Community Aged Care

Please note in light of recent developments regarding COVID-19 vaccination obligations and requirements, we have updated our advice in respect to employers mandating the COVID-19 vaccination in the workplace. Please see our most recent article here for more information.

On 20 April 2021, Deputy President Lake of the Fair Work Commission handed down the decision Ms Bou-Jamie Barber v Goodstart Early Learning [2021] FWC 2156 finding Ms Barber’s dismissal from her employment at Goodstart Early Learning (Goodstart) for refusing to receive the influenza vaccination was not unfair.

In providing reasons for the decision, Deputy President Lake repeatedly clarified that this decision relates specifically to the influenza vaccination in a childcare environment, where the risks and concerns are distinct, noting he was not satisfied that being vaccinated against influenza can constitute an inherent requirement.  In any event, this decision outlines a number of key considerations employers should have before mandating vaccinations in their workplace and its response to employees who fail to provide sufficient medical evidence in refusing mandatory workplace vaccinations on medical grounds.

Then, on 29 April 2021, Commissioner McKenna of the Fair Work Commission handed down the decision of Jennifer Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWC 1818 finding an aged care receptionist who refused an influenza vaccination could not perform her job’s inherent requirements in the circumstances and upheld her termination.

Decision One - Bou-Jamie Barber v Goodstart Early Learning


Goodstart is a non-profit childcare and early learning centre.  In December 2006, Ms Barber commenced employment with Goodstart, and during her tenure held numerous roles within the business.

On 17 April 2020, Goodstart introduced a mandatory vaccination policy (Policy) requiring all of its staff to be vaccinated against the influenza virus unless employees could produce an adequate medical exemption to the Policy.

Ms Barber refused to obtain an influenza vaccination arguing she had a sensitive immune system, that she suffers from coeliac disease and that she has reacted to the influenza vaccination in the past.

Considering this, Goodstart afforded Ms Barber several opportunities to provide evidence of an adequate medical exemption to the Policy, eventually forming the view that Ms Barber was unable to provide adequate medical evidence to warrant her exemption.

On 13 August 2020, Ms Barber’s employment was terminated due to her unwillingness and failure to obtain an influenza vaccination, which Goodstart considered to be an inherent requirement of the job.  Ms Barber subsequently made an application to the Commission that her dismissal was unfair.

The Decision

Noting that curiosity surrounding vaccination is at an unnatural high, particularly given the COVID-19 pandemic, with scarce guidance surrounding how COVID-19 vaccinations will be administered, in making this decision, Deputy President Lake emphasised that this decision is relative to the influenza vaccine in a highly particular industry, limiting the ability of this decision to be used as a precedent more broadly.

In saying this, Deputy President Lake still made a number of important points in deciding Ms Barber’s dismissal was not unfair, which should be properly considered by employers prior to implementing a mandatory vaccination policy:

  1. Vaccination not an Inherent Requirement – Ms Barber’s termination letter stated that she was dismissed for failing to meet the inherent requirements of her role to be vaccinated against influenza.

    Deputy President Lake was not satisfied that being vaccinated against influenza can constitute an inherent requirement, as being vaccinated does not in its nature impact how Ms Barber performed her role.  In forming this conclusion, the Deputy President said that in determining what is an inherent requirement, it is pertinent to examine the tasks performed, as the capacity to perform those tasks inform what is an inherent requirement.  The Deputy President was not satisfied that being vaccinated changes the capacity of Ms Barber to perform the tasks that made up her role.

  1. Lawful and Reasonable Direction – While Ms Barber was terminated for failing to meet the inherent requirements of her role, which did not satisfy Deputy President Lake, the Deputy President was satisfied that a valid reason for dismissal existed by virtue of Ms Barber’s conduct in failing to comply with the lawful and reasonable direction of Goodstart to implement the mandatory Policy to be vaccinated against influenza.

    In addressing whether the Policy was lawful, Deputy President Lake noted the Policy was lawful as it was within the scope of Ms Barber’s employment and is not otherwise illegal, with Ms Barber’s most recent contract of employment impliedly requiring Ms Barber to obey lawful and reasonable directions of Goodstart, and expressly requiring Ms Barber to comply with Goodstart’s policies and procedures.

    Deputy President Lake also considered it is reasonable for a childcare provider to mandate influenza vaccinations for those staff who deal with children on such a regular basis, and in such close proximity, particularly in light of Goodstart operating in a highly regulated environment with statutory obligations beyond that of a normal employer, noting the Policy did allow for medical exemptions, Goodstart covered the expenses associated with the Policy and provided extended timeframes for Ms Barber to gain compliance.

  1. Medical Exemption – While Ms Barber argued it was unsafe for her to receive the influenza vaccination, the Deputy President concluded he was not satisfied that Ms Barber presented a valid medical exemption, which turned on the sheer lack of evidence provided where ‘it seems fair to say that almost every conceivable opportunity was provided’, noting Goodstart did not need to be satisfied that it was safe for Ms Barber to be vaccinated, but rather Goodstart needed to assess whether there was a valid medical exemption based on the medical opinions of Ms Barber’s practitioners.
  1. Fairness – Turning to fairness, the Deputy President noted that Ms Barber ‘knowingly and consciously’ objected to vaccination and in doing so was aware of the consequences, and the dismissal could be considered fair in all the circumstances when considering the insufficient medical evidence presented by Ms Barber and the lengthy process afforded by Goodstart to obtain the medical evidence.

Decision Two - Jennifer Kimber v Sapphire Coast Community Aged Care Ltd


Sapphire Coast Community Aged Care (SCCAC) is a community owned not-for-profit aged care group.  The Applicant, Ms Kimber, commenced employment with SCCAC in April 2013 in a high-care aged care residential facility, and also provided in-home care.

Ms Kimber received work-administered influenza vaccines in 2015 and 2016, and alleges she developed a condition which lasted around 10 months from a reaction to her 2016 influenza vaccine.

In 2020, the NSW Government issued a Public Health Order (PHO) directing that a person must not enter or remain on the premises of a residential aged care facility if they do not have an up-to-date vaccination against influenza, unless a medical practitioner certifies they have a contraindication to the influenza vaccine.

SCCAC subsequently put in measures to be compliant with this PHO, which included dismissing a number of employees who did not wish to receive the 2020 influenza vaccine.  Employees who could provide evidence of histories of anaphylactic reactions to previous influenza vaccinates were not, however, dismissed for refusing the vaccine.

Ms Kimber provided SCCAC with a letter from a Chinese medicine practitioner who started treating her within 10 months of Ms Kimber’s 2016 influenza vaccination.  The Chinese medicine practitioner stated that Ms Kimber would ‘prefer to not have the flu vaccination’.   Ms Kimber also provided a ‘letter of support’ from a general practitioner stating she had a medical contraindication to the influenza immunisation and she has had a severe allergic reaction to it in the past and has been advised not to have it again.

On 6 July 2020, Ms Kimber’s employment was terminated for failing to have an influenza vaccination without reasonable excuse and it was an inherent requirement of her employment that she be vaccinated for influenza.  SCCAC noted that when deciding to terminate Ms Kimber, the information she provided did not, in SCCAC’s view, constitute a medical contraindication.

The Decision

In making her decision that Ms Kimber was not unfairly dismissed, Commissioner McKenna outlined:

  1. Lawful and Reasonable – If a direction had been given by SCCAC to have an influenza shot, any such direction would have been lawful and reasonable, given it reflected the PHO as it applied in 2020.
  2. Inherent Requirements – Ms Kimber was unable to perform the inherent requirements of her job as she was not properly permitted to enter or remain at the aged care residential facility absent having an up-to-date influenza vaccine.
  3. Objectively prudent and appropriate approach – SCCAC did not accept what was put forward by Ms Kimber to substantiate her refusal to have an influenza vaccine, and took an objectively prudent and appropriate approach in not permitting Ms Kimber to work as it relied on what was said in a media release at the time by the Federal Minister for Aged Care quoting the Chief Medical Officer’s advice that ‘the only absolute contraindication to the flu vaccination is a history of previous anaphylaxis following vaccination, those who have Guillain-Barre syndrome following previous flu vaccination and people on check point inhibitor drugs for cancer treatment’.
  4. Medical evidence – A difficulty in Ms Kimber’s case was that there was no medical evidence of a contemporaneous diagnosis that Ms Kimber’s condition as described was attributable to the 2016 influenza vaccine. On the evidence before the Commission, Ms Kimber had not established a case on the evidence of cause-and-effect between the 2016 influenza vaccine and her condition such as to demonstrate any medical contraindication to the influenza vaccination, noting it is reasonable clear Ms Kimber’s general practitioner appears only to have proceeded on what Ms Kimber stated to him as having occurred in 2016-17 in his writing of the letter of support.

Lessons from these Decisions

There are a number of key takeaways from Deputy President Lake’s and Commissioner McKenna’s decisions, which may be extrapolated to potential policies on mandatory COVID-19 vaccinations. These include:

  1. There is still a risk to employers that an employee’s dismissal could be found to be unfair if their employment is terminated for refusing to receive a vaccination. Whether the dismissal is unfair largely turns on the facts of the case, the employer’s industry, the process followed to implement a mandatory vaccination regime, and the steps taken when an employee refuses vaccination. It is important to note that these factors will be different depending on the type of vaccine being mandated (eg a mandatory COVID-19 vaccination may not be found to be reasonable in a child-care setting but may be more reasonable in an aged care setting).
  2. Should an employer wish to implement a mandatory vaccination regime for its staff, such regime should be done by way of a lawful and reasonable policy, that can be incorporated into the terms and conditions of an employee’s employment.
  3. Employees that refuse vaccinations should be handled on a case-by-case basis, which includes a proper assessment of the medical evidence submitted by the employee as to why they cannot be vaccinated.  If medical evidence is not sufficient in the first place, employees should be afforded at least one further opportunity to provide sufficient medical evidence before a decision to terminate is made.
  4. Employers should consider the grounds for termination in light of Deputy President Lake’s comments around inherent requirements, and where appropriate leaning to conduct instead of capacity as grounds for termination for refusing to be vaccinated. Commissioner McKenna’s decision however indicates that being vaccinated for influenza can be an inherent requirement of a role when it is specifically required by a public health order.
  5. There are times when employees can still be dismissed for failing to receive an influenza vaccination even when they supply medical evidence indicating they have a contraindication to receiving the vaccine, however we recommend seeking legal advice before taking such action.

This article was produced by HR Legal. It is intended to provide general information only in summary format on legal issues. It does not constitute legal advice, and should not be relied on as such.