Vaccinations in the workplace: an overseas perspective

Thursday, September 16, 2021

The Employment Relations Authority (Authority) in GF v New Zealand Customs Service has provided some guidance on whether an employer can require staff to get vaccinated against COVID-19, as the case became the first piece of litigation to substantively address the issue. Our article on this case can be found here. Continuing our commentary on this ‘hot topic’ that has become a prevalent issue within the employment law sphere, we wanted to see whether the Authority’s decision lined up with similar decisions in other jurisdictions.

A recent Australian case Barber v Goodstart Early Learning is a decision that also found an employer to be justified when dismissing an employee for failing to comply with the employer’s direction to get vaccinated. In this case, the employer had introduced a mandatory influenza vaccination requirement in April 2020 in response to COVID-19, given that a COVID-19 vaccine had not yet been rolled-out at that stage. In considering the employer’s health and safety obligations and the nature of the workplace (childcare centre), the Fair Work Commission held that dismissal of the employee who did not comply with the employer’s mandatory influenza vaccination requirement was justified.

The case

Ms Barber was employed by the Goodstart Early Learning (Goodstart) as a Lead Educator. In April 2020, Goodstart introduced an immunisation policy in response to the COVID-19 pandemic, requiring that all staff must receive the influenza vaccination unless they have a medical condition which makes it unsafe for them to do so.

The policy stemmed from the fact that COVID-19 became increasingly prevalent in Australia, therefore Goodstart sought to review the measures it had in place in preparing and responding to the effects of a pandemic or other infectious disease in the workplace. As a starting point, Goodstart established a ‘steering committee’ to control and manage Goodstart’s response to the COVID-19 outbreak. Goodstart also established a COVID-19 working group, which was an internal operational group that frequently met to discuss the strategies flowing form the steering committee’s advice. In parallel, the Australian Health Protection Principal Committee (AHPPC) issued statements about COVID-19 and early learning and childcare. These statements, amongst other things, recommended influenza vaccination for children, staff and parents associated with childcare centres.

Ms Barber said that she had a sensitive immune system, and therefore raised her objections to Goodstart’s mandatory influenza vaccination policy. Ms Barber provided a medical certificate pursuant to the policy, however, Goodstart determined that it was not sufficient to support her objection to the influenza vaccination. As such, Goodstart dismissed Ms Barber for her failure to be vaccinated, disabling her from meeting the inherent requirements of her role.

In the Fair Work Commission (Commission) – Australia’s national workplace relations tribunal – Ms Barber challenged Goodstart’s decision to dismiss, arguing that the dismissal was harsh, unjust and unreasonable. Goodstart argued that the mandatory vaccination requirement reflected its health and safety obligations, and that Ms Barber’s employment was justifiably ended once she could not comply with the vaccination requirement and failed to provide medical evidence supporting her decision to remain unvaccinated.

The Commission agreed with Goodstart, ruling that its actions ultimately met the standard of a fair and reasonable employer under Australian law.

The Commission’s decision

Like the Authority’s decision in GF v New Zealand Customs Service, this case provides some useful guidance for employers where they may need to necessitate a change to the terms and conditions of a role in response to COVID-19. We set out below the key elements of the Commission’s decision:

  • While the Commission agreed that vaccination would not change how Ms Barber would perform her role, the mandatory vaccination policy artificially imposed an inherent requirement to her employment.
  • The Commission was satisfied that the mandatory vaccination requirement (subject to legitimate medical exemptions) was a lawful and reasonable management direction from Goodstart because it lawfully fell within the scope of Ms Barber’s service, and was reasonable in the context of the relevant industry.
  • The Commission agreed that Ms Barber’s medical evidence (albeit a medical certificate) did not meet the medical exemption under the policy because it did not adequately indicate whether vaccination would be unsafe for Ms Barber.
  • The Commission simply must be satisfied that the decision made was lawful and reasonable. In this case the Commission agreed, on the recommendation of the relevant regulatory bodies, that Goodstart’s mandatory vaccination policy was a sufficient response to mitigating the risk and transmission of COVID-19 and influenza generally.
  • In turn, the Commission concluded that Ms Barber’s breach of the vaccination policy was a valid reason for dismissal.

Things to consider 

While the decisions of Authority and the Commission reached the same substantive outcome (that there was a justified dismissal for failing to get vaccinated), the circumstances in the cases were manifestly dissimilar.

In the New Zealand case, Customs was a public entity operating at the border, giving it clear and heightened responsibilities compared to non-border employers. The enactment of the COVID-19 Public Health Response (Vaccinations) Order 2021 (Vaccinations Order) then provided the legal basis for Customs to make a justified dismissal following GF’s refusal to get vaccinated in her role.

In the Australian case, Goodstart was not directly connected to the border and had no immediate risk of COVID-19 present in the workplace. However, following the recommendations of regulatory bodies, including the AHPPC, Goodstart ascertained that a mandatory vaccination policy was an appropriate measure to protect its employees and the children and parents associated with the childcare centre. Goodstart’s workplace environment also factored into the reasonableness of the vaccination requirement. Being a childcare centre, the Commission agreed that children are by nature more vulnerable to illness and in general have poor hygiene standards, which will make a viral spread easier and potentially more dangerous than in other workplace settings. The Commission found that Goodstart’s mandatory vaccination requirement (subject to medical evidence proving the vaccination was unsafe) was reasonable and became binding on all staff and agreed that non-compliance with the vaccination policy with no sufficient medical evidence was a good reason to dismiss.

Although the Commission’s decision applied Australian law, the decision may assist New Zealand employers when exploring their responses to COVID-19. It shows that employers should take a cautious approach when considering whether vaccinations should be mandatory, considering Government directions for specific industries and sectors, the environment in which the employer operates in, the circumstances concerning each employee, and the fundamental employment and health and safety obligations.

For more information or specialist advice, please contact a member of our employment team.

 

Disclaimer: The content of this article is general in nature and not intended as a substitute for specific professional advice on any matter and should not be relied upon for that purpose.

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