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We now have a vaccine. But, can we enforce its use?

by | Dec 30, 2020 | Workplace & Employment

With the UK vaccinating against COVID-19, and this predicted for Australia in early 2021, employers may soon find their employees questioning whether they can be directed to be vaccinated.

Crucial to any employment relationship is that employees must comply with any lawful and reasonable direction given to them by their employer. Failure of which may result in disciplinary action.

However, directions regarding vaccinations may spark concern amongst some employees who regard such matters as personal.

In some industries, such as those involving routine contact with the vulnerable such as young children or the elderly, the answer to the question of whether a direction to be vaccinated is lawful and reasonable may appear obvious given the nature, or the inherent requirements of, that role. In Arnold v Goodstart Early Learning Limited T/A Goodstart Early Learning [2020] FWC 6083, the Fair Work Commission made observations about a direction to be vaccinated. Ms Arnold was employed as a Group Leader at Goodstart, having responsibility for the care of young children.

Goodstart issued a direction that all employees be vaccinated against influenza by May 2020, and when Ms Arnold refused to comply with this direction, her employment was terminated.

Whilst Goodstart’s policy permitted exceptions to the direction for medical reasons, Ms Arnold’s refusal was not for such reasons. In fact, it was difficult to discern the basis on which Ms Arnold refused to be vaccinated.

In the context of deciding an application for an extension of time because Ms Arnold had lodged her unfair dismissal application one day late Deputy President Asbury considered the merits of Ms Arnold’s claim, being her refusal to comply with the vaccination direction, thus:

‘…it is my view that it is at least equally arguable that the Respondent’s policy requiring mandatory vaccination is lawful and reasonable in the context of its operations which principally involve the care of children, including children who are too young to be vaccinated or unable to be vaccinated for a valid health reason…

It is also equally arguable that the Applicant has unreasonably refused to comply with a lawful and reasonable direction, which is necessary for her to comply with the inherent requirements of her position, which involved the provision of care for young children and infants’ [32].

Further, Deputy President Asbury regarded Goodstart’s mandatory vaccination policy as necessary in meeting its duty of care obligations to the infants and children in its care, as well as accommodating those employees who have reasonable grounds to refuse vaccinations for medical or health conditions.

Ultimately, Deputy President Asbury dismissed Ms Arnold’s application.

Whilst this application did not specifically address COVID-19 vaccination, the observations provide practical guidance for employers concerning vaccination directions to employees, namely that where health and safety in the workplace are concerned that they are likely to be seen as lawful and reasonable.

If you would like advice either as an employer or employee on what will shortly become a ‘hot button issue’ please contact our experienced workplace relations team on 03 9614 7111 or melbourne@nevettford.com.au.