Vaccinations in the workplace and Covid 19

In a recent decision by the Fair Work Commission on an application by an employee for an extension of time in which to commence proceedings for unfair dismissal (which was rejected), the Commission had something to say about an employer’s right to require employees to undergo mandatory vaccinations.

If the Deputy President’s observations are to be accepted, as I am sure they would be, employers will be able to lawfully and reasonably require staff to undergo Covid 19 vaccinations in most employment contexts.

“The Applicant’s submission address merit in some detail. A major feature of those submissions is the proposition that reasonable adjustments should have been made to accommodate the Applicant’s refusal to be vaccinated. It is strongly arguable that the case law cited in the Applicant’s submissions is irrelevant to the present case, on the basis that it deals with accommodation in relation to incapacity based on mental or physical disability. In the present case the Applicant did not refuse to be vaccinated for any apparent medical reason. It is also the case that the Respondent’s policy in relation to mandatory vaccination provides for a process whereby employees who have medical grounds for refusing to be vaccinated can seek accommodation in relation to their circumstances. The Applicant does not appear to have availed herself of this process as part of her refusal to consent to vaccination and it is arguable that she cannot claim that reasonable accommodation should have been made when she did not seek such accommodation on reasonable grounds.

The merits of the application – s.394(3)(e)

In the matter of Kornicki v Telstra-Network Technology Group5 the Commission considered the principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.”6

The Applicant’s submission address merit in some detail. A major feature of those submissions is the proposition that reasonable adjustments should have been made to accommodate the Applicant’s refusal to be vaccinated. It is strongly arguable that the case law cited in the Applicant’s submissions is irrelevant to the present case, on the basis that it deals with accommodation in relation to incapacity based on mental or physical disability. In the present case the Applicant did not refuse to be vaccinated for any apparent medical reason. It is also the case that the Respondent’s policy in relation to mandatory vaccination provides for a process whereby employees who have medical grounds for refusing to be vaccinated can seek accommodation in relation to their circumstances. The Applicant does not appear to have availed herself of this process as part of her refusal to consent to vaccination and it is arguable that she cannot claim that reasonable accommodation should have been made when she did not seek such accommodation on reasonable grounds.

Accordingly, I do not consider that the merits of the Applicant’s case are so apparent that they should be weighed in favour of the grant of a further period in which to make her application for an unfair dismissal remedy. In reaching this conclusion I have considered the submissions filed on behalf of the Applicant and adopted by her as her evidence, and the material filed by the Respondent in its Form F3 Response to the application which includes its vaccination policy and the Applicant’s responses to the attempts of the Respondent to secure her compliance with that policy.

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.

In all of the circumstances, I consider that merit is at best, a neutral consideration in deciding whether a further period should be granted for the Applicant to make her application for an unfair dismissal remedy.”

 

 

Ms Nicole Maree Arnold v Goodstart Early Learning Limited T/A Goodstart Early Learning [2020] FWC 6083 delivered 19 November 23020 per Asbury DP