The Fair Work Commission recently handed down a disturbing decision in an unfair dismissal case.

Background

The case involved Ms Bou-Jamie Barber, an early childhood educator in Queensland who was dismissed by Goodstart Early Learning (Goodstart) for failing to comply with the organisation’s new mandatory influenza vaccination policy, which only provided for an exemption in circumstances where it would be unsafe for the employee to receive the vaccination (medical contraindication).

Goodstart determined that Ms Barber’s medical certificates were insufficient to show that vaccination would be unsafe for her, and dismissed her on 13 August 2020.

Ms Barber had been employed by Goodstart since 2006, no less than 14 years.  At least 16 employees were dismissed as a result of the policy, and a further 7 resigned (paragraph 213 of decision).

Summary of the decision

The Commission found that, even though influenza vaccination was not an ‘inherent requirement’ of Ms Barber’s role at Goodstart, the direction was, nevertheless, ‘reasonable and lawful’ in the circumstances.

[303] The right of an employer to direct their employee is implied at common law, stemming from the ability of an employer to exert control over their employees. Employees have a duty of obedience which requires an employee to comply with any lawful and reasonable direction given by a superior,(28) or otherwise contained in an employer’s policies and procedures.(29) A breach of this implied duty constitutes a breach of contract; this misconduct can provide the basis of a valid reason for dismissal.

[306] To be lawful, a direction does not require a positive statement of law endorsing an action; a direction can be classified as lawful provided that it does not involve illegality and “falls reasonably within the scope of service of the employee”.(31)

[308] The question of what is reasonable is a question of fact and balance; it is not material that a “better” direction may exist; a determination of what is reasonable must be assessed against factors relevant to the employment relationship.

The Commission’s findings included:

• Ms Barber’s 2014 employment contract expressly required her to comply with policies and procedures that may be implemented and varied from time to time.
• The National Health and Medical Research Council (NH&MRC) and multiple state health departments have recommended influenza vaccination for people working with children, but these recommendations advocate vaccination, not require ‘mandatory’ vaccination.  However, these recommendations could still inform a reasonable employer that mandatory vaccination is appropriate.
• Goodstart has statutory duties under the Work Health and Safety Act, to ensure, so far as reasonably practicable, the health and safety of employees and to ensure the children under its care are not put at risk from work carried out by its childcare workers.
• Ms Barber had statutory duties, under the Work Health and Safety Act, to take reasonable care for her own safety, to take reasonable care to ensure her acts or omissions do not adversely affect the health and safety of other persons, and to comply and co-operate with Goodstart’s reasonable instructions, policies and procedures relating to health and safety at the workplace.
• Goodstart has statutory duties under the Education and Care Services National Regulations, to manage infectious diseases (Regulation 88), and to have policies and procedures dealing with infectious disease (Regulation 168), but these only arise “if there is an occurrence of an infectious disease at an education and care service”.   Despite it not being a legislative requirement for Goodstart to attempt to prevent the risk of influenza before it occurs, it is not illogical for it to do so, and remains good practice.
• Employers can be liable for the transmission of infectious diseases in the workplace.
• Regardless of the degree of effectiveness of influenza vaccination, it directly reduces the risk of infection to those parties that Goodstart has a duty of care towards, whether it be children or staff, and that even at its least effective, a reasonable employer could still adopt a policy of mandatory vaccination.
• Alternative methods of reducing influenza risks, such as social distancing and general hygiene measures are not as practical in the childcare environment compared with many other industries.
• Ms Barber failed to provide relevant medical evidence for why an exemption from the mandatory vaccination policy should be granted.
• The mandatory vaccination policy was lawful, and did not amount to assault and battery.

Goodstart’s mandatory vaccination policy was also endorsed by three traitorous trade unions: the United Workers Union, the Independent Education Union of Australia, and the Australian Education Union, however, the Commission claimed to have afforded little weight to this endorsement.

Although the decision applies only to this particular case, it may be persuasive for future cases.

We understand that Ms Barber did not appeal the decision.

Observations

The decision is extraordinary for the fact there is no legislated mandate for childcare workers to receive influenza vaccination.

Goodstart constructed an elaborate and fanciful fiction that their statutory obligations extend to preventing influenza by vaccination. To further bolster their argument, they relied on the flimsy and opportunistic recommendations found in the Australian Immunisation Handbook, a 2020 AHPPC statement, and a Queensland Health statement, all of which were formulated by unelected doctors and public servants, and the Commission accepted this as reasonable.

We are aware that toxic mandatory vaccination activists have, over many years, been lobbying Goodstart, and other childcare providers, to implement mandatory vaccination policies for employees, so it comes as no surprise to us that Goodstart went down this path.

Queensland Public Health Act and Regulations

The measures that would be “reasonable” for Goodstart to adopt as an influenza control policy in Queensland are set out in the provisions of the Public Health Act 2005 Qld (PH Act) and Public Health Regulation 2018 Qld  (PH Regulations), which the Commission did not consider.

Influenza is a public health matter, not a workplace health and safety, or child safety matter.

The provisions of the PH Act and PH Regulations set out what the elected members of the Queensland Parliament, on behalf of the general public, considers necessary to protect against the risk posed by influenza in childcare services, based on the weighing of advice from public health experts.

An infographic dated March 2020, and published on the Queensland Department of Health website provides for the recommended minimum exclusion periods for infectious conditions (including influenza), to assist medical practitioners, schools, pre-schools and childcare centres to meet the requirements of the PH Act.

Relevantly, even those persons who have been in contact with an influenza infected person are not required to be excluded, including both children and staff, and childcare employees are not required to be vaccinated.

In addition, with respect to children, Goodstart has the option to refuse to enrol, or to cancel the enrolment of unvaccinated children, pursuant to sections 160B and 160C of the PH Act respectively, however the organisation has not exercised this option in its policy in Queensland.

This means that the organisation’s policy in Queensland does not require children to receive influenza vaccination, or indeed any of the other vaccinations recommended for children in the Australian Immunisation Handbook (see section 160A (a) of the PH Act).

For the above reasons, it’s difficult to view the organisation’s requirement for employees to receive influenza vaccination (excluding those with a medical contraindications) as anything other than arbitrary and illogical.

The mandatory influenza vaccination direction by Goodstart goes significantly beyond the Public Health Act and Regulations, and is entirely unreasonable.

Grinham v Tabro Meats Pty Ltd [2012] VSC 491

The Commission incorrectly applied Grinham, at paragraph 321, to find that “employers can be liable for the transmission of infectious diseases in the workplace, which would provide some impetus for the Respondent to seek vaccination”.

That case concerned an employee who had contracted Q Fever at a specific type of workplace, namely an abattoir, where the risk of exposure to Q Fever necessarily arises from work. That is, it is an occupational risk inherent to that type of workplace. The same could not be said for influenza with respect to childcare facilities.

Unlike influenza, Q Fever is a prescribed occupational illness under section 699 of the WHS Regulation (made under section 36 of the WHS Act).

Given the practical difficulties of identifying the source of an influenza infection at a childcare facility (as opposed to identifying the source of a Q Fever infection at an abattoir), it is a spurious argument that Goodstart could be liable for the transmission of influenza from an employee to another party at the childcare facility, and such an argument should not have been afforded any weight by the Commission in determining whether or not Goodstart’s mandatory vaccination was reasonable.

To accept such an argument, would mean that Goodstart could also be liable for the transmission of influenza from the enrolled children (who are not required to receive influenza vaccination to attend Goodstart facilities in Queensland) to other parties, a ridiculous proposition.

Future cases

This decision is not the final word on the topic.  We believe there are enough contestable findings in the decision, and omissions, to challenge any future unfair dismissals based on mandatory vaccination policies imposed by employers (as opposed to by the state).

This is just the beginning.

Disclaimer

All information contained herein was, to the author’s knowledge, correct at the time of writing, but please note, this information is not intended to constitute legal advice.