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.
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:
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.
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.
- 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.
- 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.