Although the issue has not been heard by the Courts or the FWC, commentary appears to highlight important factors likely to be considered in matters involving the compulsory implementation of the COVID-19 vaccination:
- The nature of the employment;
- The seriousness and the high infection rate of the COVID-19 virus;
- Tasks required within the role and the employee’s corresponding social contact;
- Reasons for the employee’s objection; and
- Potential alternative methods of mitigating risk.
Lawful and Reasonable
With the impending arrival of the much-anticipated COVID-19 vaccination, its roll out and implementation has been highly debated. Two recent matters before the FWC indicate that the effects of the vaccine introduction on employment matters will be no exception.
One likely issue that will become widely relevant will be whether an employer can require its staff to be COVID-19 vaccinated, with noncompliance being grounds for dismissal. It is established that an employer can provide lawful and reasonable directions to employees in which they must comply. Hence, unless parliament pass legislation expressly prohibiting employers from mandating vaccinations, it is likely to be a lawful direction. The point of contention is likely to be whether such a direction is ‘reasonable’.
Ms Nicole Maree Arnold v Goodstart Early Learning Limited TA Goodstart Early Learning
In Ms Nicole Maree Arnold v Goodstart Early Learning Limited TA Goodstart Early Learning the Applicant, Ms Arnold, submitted that her dismissal from her role as childcare worker for refusing the flu vaccination was harsh and unreasonable. Ms Arnold’s objection to the vaccination was on philosophical grounds rather than out of medical necessity.
Although proceedings were dismissed as a result of time limitations, Deputy President Asbury made the following remarks:
“While I do not go so far as to say that the Applicant’s case lacks merit, 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. Prima facie the Respondent’s policy is necessary to ensure that it meets its duty of care with respect to the children in its care, while balancing the needs of its employees who may have reasonable grounds to refuse to be vaccinated involving the circumstances of their health and/or medical conditions. 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 involves the provision of care to young children and infants.” 
Hence there appears to be two main considerations in determining an employers’ power to mandate vaccinations; the type of work performed by the employee, and the basis in which the employee refuses the vaccination. It seems more likely that accommodations would be made in instances where refusal is based on proven medical grounds. Hence determination will require balancing the health and needs of the public with the health and needs of the individual employee.
Maria Glover v Ozcare
Given the seriousness of the COVID-19 pandemic and the contagious nature of the virus, it has been suggested that circumstances in which employers can mandate vaccinations will broaden in relation to its vaccine. How broad may begin to be explored in the upcoming hearing within the FWC of the matter Maria Glover v Ozcare.
By way of summary, the Applicant, Ms Glover, was employed by Ozcare to provide in-home care to the elderly. Ms Glover had refused to be vaccinated during her 10 years employed with the company, with no repercussions. However, when the COVID-19 virus hit Australia, there were grave concerns regarding the interaction of this new virus with the seasonal influenza. Accordingly, there were Health Directions within the area Ms Glover worked compelling particular individuals to get the flu vaccination. Although these Health Directions did not directly require Ms Glover to be vaccinated, applying rather to regional healthcare workers working in community care, Ozcare decided that in order to minimise the risk, they were also going to mandate the flu vaccination. Ms Glover declined the vaccination on alleged medical grounds; she had suffered anaphylaxis from a flu vaccination received in the Philippines 57 years prior. Ozcare requested the provision of current medical evidence for the basis of objection, Ms Glover refused. In the alternative to vaccination, Ms Glover suggested she make use of personal protective equipment. Ozcare consequently did not provide her any more shifts. Once the Applicant had exhausted all her leave entitlements, she filed an application for unfair dismissal with the FWC.
It was clarified by the FWC in a decision determining a jurisdictional objection that by continually not rostering Ms Glover for any shifts the Employer, Ozcare effectively terminated her employment. Hence Ms Glover is able to pursue unfair dismissal proceedings. What is now left to be decided by the FWC is the merits of the matter.
In her concluding remarks, Commissioner Hunt provides that:
“each circumstance of the person’s role is important to consider, and the workplace in which they work in determining whether an employer’s decision to make a vaccination an inherent requirement of the role is a lawful and reasonable direction. Refusal of such may result in termination of employment, regardless of the employee’s reason, whether medical, or based on religious grounds, or simply the person being a conscientious objector.” 
This comment recognises that vaccinations are now an inherent part of particular jobs, and hence the argument of ‘medical concerns’ is not in itself sufficient to make dismissal unreasonable.
It is important to acknowledge that vaccinations are invasive by nature; injecting a foreign substance into the body involves inherent risk. Hence employers will potentially have to justify the reasonableness of requiring COVID-19 vaccinations.
The Commission has indicated that in determining reasonableness, they will only consider science; proven medical risks, as opposed to mere conscious objection. Further, they will also consider the potential risk an unvaccinated individual may pose to public safety, and whether alternative risk mitigation options exist.
It is also relevant to consider other instances where invasive employment requirements are regularly enforced, including drug and alcohol testing and medical examinations, on the basis that it is essential to perform the requirements of their role safely. It is likely that the same considerations will apply with regards to mandating vaccinations. The implementation of adequate workplace policy, including a strong argument as to why employees should be vaccinated focusing on the importance of the vaccination in allowing the employee to perform their core duties safely, then it is unlikely that the direction will be deemed unreasonable.
But how far will this public safety need reach? The COVID-19 virus is highly contagious in nature and found to have devastating effects on a range of people. Working with people, whether identified as ‘vulnerable’ or not, will involve a certain risk of transmission. Further additional factors may become relevant in determining reasonableness once we know more about the implications of the vaccine, including for example its apparent effectiveness, rate and seriousness of reactions and the vaccination rate required to regain control and restore a certain amount of normality. We are charting the unknown in the wake of pandemic upheaval and navigating the legal implications on employment is no exception.
As theorised by Commissioner Hunt;
“…it is not inconceivable that come November 2021, employers…engaged to play the role of Santa Clause in shopping centres…may be required to be vaccinated at least against influenza, and if a vaccination for COVD-19 is available, that too…where they are not mandated to provide social distancing, [the employer] may decide at their election that vaccinations of their employees are now an inherent requirement of the job. It may be that a court or tribunal is tasked with determining whether the employer’s direction is lawful and reasonable, however in the court of public opinion, it may not be an unreasonable requirement. It may, in fact, be an expectation of a large proportion of the community.”
If you are an employer seeking to impose mandatory vaccination in your workplace, it is recommended you seek professional legal advice to safeguard your business. Call Saines Legal on (07) 3324 1055 for a commitment free discussion.
 See, eg, Fair Work Regulations 2009 (Cth) regulation 1.07(3)(c); Nick Kolodjashnij v Lion Nathan T/A J Boag and Son Brewing Pty Ltd  AIRC 893.
  FWC 6083.
 Ms Nicole Maree Arnold v Goodstart Early Learning Limited TA Goodstart Early Learning  FWC 6083 at .
 ABC Radio National, ‘Can you be sacked if you refuse a COVID-19 vaccine? And is neglecting an overdosed friend a crime?, The Law Report, 2 February 2021 (Damien Carrick) <https://www.abc.net.au/radionational/programs/lawreport/workplace-covid-vacc-and-criminal-negligence-manslaughter/12982428>.
  FWC 231.
 Queensland’s Chief Health Officer, Dr Jeannette Young, issued directions pursuant to section 362B of the Public Health Act 2005, stating that employees cannot enter a residential aged care facility from 1 May 2020 if they do not have the influenza vaccination.
 Maria Glover v Ozcare  FWC 231 .
 Considered reasonable when required by adequate workplace drug and alcohol policy: see Shannon Green v Lincon Logistics Pty Ltd T/A Lincon Hire & Sales (2017) FWC 4916 delivered 20 September 2017 per Platt C.
 Ibid .