Vaccines and the workplace

The following lengthy extracts from a recent Fair Work Commission unfair dismissal case, which arose from the dismissal of an employee who declined to have a mandated influenza vaccine in a childcare workplace, have been edited so as to publish the applicant employee’s submissions and some evidence and the Deputy President’s reasons for the decision to dismiss the applicant’s case. Although, as the Deputy President made plain in his decision, the case is limited to an issue with the influenza vaccine in a childcare environment, it is testing logic to suggest that the decision is will not have significant influence on Commission’s view about employers mandating Covid vaccines.

I have not published the respondent employer’s case and submissions which were broadly accepted by the Deputy President.

“Valid reason

[75] The Applicant notes that a valid reason is one which is sound, defensible or well founded, and is not capricious, fanciful, spiteful or prejudiced. 12 The Applicant submits that the entire relevant factual matrix must be considered in determining whether her dismissal was for a valid reason.13

Inherent requirements

[76] The Applicant submits that she has been dismissed for failing to meet the inherent requirements of her role to be vaccinated against the flu. The Applicant submits that s.387(a) makes a clear distinction between a person’s ‘capacity’ and ‘conduct’. The Applicant’s submission is extracted below:

“105. The word “capacity”, as used in s 387(a) means the employee’s (person’s) ability to do the work he or she is employed to do. A reason will be “related to the capacity” of the employee where the reason is associated or connected with the ability of the employee to do his or her position. Re Crozier & the Australian Industrial Relations Commission. The reference to the capacity in the section is a reference to the capacity of the employee to perform the duties of the position occupied by the employee Paper Australia v Day; J Boag & Sons v Button.

  1. A reason concerned with the capacity of an employee as used in s 387(a) is not a reason concerned with an employee’s conduct or misconduct.
  2. The term “capacity” may embrace physical capacity, mental capacity or legal capacity. See observation of McHugh J in Qantas Airways Ltd v Christie.
  3. In Hail Creek Coal Pty Ltd v CFMEU a Full Bench construed the term “unsuitable” to mean “incapable of performing the inherent requirements of the position” a matter unrelated to the meaning of “capacity” in s 387(a) – although the discussion of the meaning of the term “inherent requirements” is of assistance.
  4. Section 387(a) requires the FWC to consider and make findings as to whether, at the time of dismissal, the employee suffered from the alleged incapacity based on the evidence before the FWC and, if so, whether there were any reasonable adjustments which could be made to the employee’s role to accommodate the employee. Jetstar Airways Pty Limited v Ms Monique Neeteson-Lemkes; CSL Limited T/A CSL Behring v Chris Papaioannou. There is no basis to leave the resolution of any conflict concerning capacity of the employee to do his or her job to the employer. CSL Limited T/A CSL Behring v Chris Papaioannou.
  5. S 387(a) makes no reference to “inherent capacity”. The term “inherent requirements” is found in s 351(2)(b) of the Act.
  6. Nevertheless the FWC has found that an employer may rely upon an employee’s incapacity to perform the inherent requirements of his position as a valid reason for dismissal. J Boag & Sons v Button; Jetstar Airways Pty Limited v Ms Monique Neeteson-Lemkes; CSL Limited T/A CSL Behring v Chris Papaioannou. These three decisions were all concerned with incapacity occasioned by physical or mental incapacity. In Chivonivoni v Cobham Aviation Services Engineering Pty Ltd it was assumed that an employer may rely upon an employee’s incapacity to perform the inherent requirements of his position as a valid reason for dismissal where the incapacity related to legal capacity. See also Pettifer v MODEC Management Services Pty Ltd and the decisions cited therein.
  7. In X v Commonwealth McHugh J stated:

[31] Whether something is an “inherent requirement” of a particular employment for the purposes of the Act depends on whether it was an “essential element” of the particular employment . However, the inherent requirements of employment embrace much more than the physical ability to carry out the physical tasks encompassed by the particular employment. …

  1. As to the meaning of “inherent requirement”, in X v Commonwealth McHugh J stated:

“[35]. Christie stands for the proposition that the legal capacity to perform the employment tasks is, or at all events can be, an inherent requirement of employment. It shows that in determining what the inherent requirements of a particular employment are, it is necessary to take into account the surrounding context of the employment and not merely the physical capability of the employee to perform a task unless by statute or agreement that context is to be excluded. Far from rejecting the use of such context, s 15(4) by referring to “past training, qualifications and experience … and all other relevant factors”, confirms that the inherent requirements of a particular employment go beyond the physical capacity to perform the employment.”

“[36]. What is an inherent requirement of a particular employment will usually depend upon the way in which the employer has arranged its business. In Christie, Brennan CJ said:

“The question whether a requirement is inherent in a position must be answered by reference not only to the terms of the employment contract but also by reference to the function which the employee performs as part of the employer’s undertaking and, except where the employer’s undertaking is organised on a basis which impermissibly discriminates against the employee, by reference to that organisation.”

[37].Unless the employer’s undertaking has been organised so as to permit discriminatory conduct, the terms of the employment contract, the nature of the business and the manner of its organisation will be determinative of whether a requirement is inherent in the particular employment. But only those requirements that are essential in a business sense (including where appropriate public administration) or in a legal sense can be regarded as inhering in the particular employment. The Commission must give appropriate recognition to the business judgment of the employer in organising its undertaking and in regarding this or that requirement as essential to the particular employment. Thus, in Christie, Qantas had no obligation to restructure the roster and bidding system which it utilised for allocating flights to its pilots in order to accommodate Mr Christie. In the end, however, it is for the Commission, and not for the employer, to determine whether or not a requirement is inherent in a particular employment.”

In Hail Creek Coal Pty Ltd v CFMEU a Full Bench noted:

“[124] The phrase “inherent requirements” has been judicially considered to mean something that is essential to the position. [See generally X v The Commonwealth (1999) 200 CLR 177] To determine what are the inherent requirements of a particular position usually requires an examination of the tasks performed, because it is the capacity to perform those tasks which is an inherent requirement of the particular position. [Qantas Airways Ltd v Christie (1998) 193 CLR 280 at 304 per McHugh J] As her Honour Gaudron J said in Qantas Airways Ltd v Christie:

“A practical method of determining whether or not a requirement is an inherent requirement, in the ordinary sense of that expression, is to ask whether the position would be essentially the same if that requirement were dispensed with.”

  1. An employer cannot create an inherent requirement by stipulating something that is not essential. In Qantas Airways Ltd v Christie Gaudron J stated: “It is correct to say, as did Gray J in the Full Court, that an inherent requirement is something that is essential to the position. And certainly, an employer cannot create an inherent requirement for the purposes of s 170DF(2) by stipulating for something that is not essential or, even, by stipulating for qualifications or skills which are disproportionately high when related to the work to be done…”
  2. Similarly Brennan CJ stated:

“In particular, I agree that a stipulation in a contract of employment is not necessarily conclusive to show whether a requirement is inherent in an employee’s position. The question whether a requirement is inherent in a position must be answered by reference not only to the terms of the employment contract but also by reference to the function which the employee performs as part of the employer’s undertaking and, except where the employer’s undertaking is organised on a basis which impermissibly discriminates against the employee, by reference to that organisation.”

  1. It is trite to observe that any claimed “Inherent requirement” must be of itself an otherwise lawful and reasonable requirement.”

Conclusion as to valid reason

[77] The Applicant submits that the Respondent has failed to establish a valid reason for her dismissal, and submits there is no basis for dismissal for reason of incapacity to perform duties of the position due to inherent requirements.

[78] The Applicant submits this is not a case where a “statutory requirement pertaining to legal capacity is relied on”, as for example in aged care accommodation. The Applicant submits that the policy requirement and/or direction said to constitute the Applicant’s incapacity to perform inherent requirements “was that if the applicant wished to continue in employment with the respondent, the applicant was required to be influenza vaccinated in 2020 unless the respondent, in its sole discretion, considered that the applicant had ‘a medical condition which makes it unsafe for them to do so’”.

[79] The Applicant submits that such a requirement fails the test of being an ‘incapacity to perform the inherent requirements of the position’ for the following reasons:

  1. a) It does not relate to capacity as used in s.387(a) because it is not associated or connected with the ability of the employee to do his or her position;
  2. b) It is not a physical, mental or legal incapacity;
  3. c) It is not an “essential element” of the particular employment;
  4. d) It is not requirements that are essential in a business sense (including where appropriate public administration) or in a legal sense can be regarded as inherent in the particular employment;
  5. e) In a practical sense, the position would be essentially the same if that new requirement was dispensed with. The position is essentially the same on 1 April 2020 as it was on 31 March 2020; and
  6. f) An employer cannot create an inherent requirement by stipulating something that is not essential. This is what has occurred in the present case.

[80] The Applicant further submits that such requirement fails the test of being an ‘incapacity to perform inherent requirements’ as the requirement “is otherwise unlawful, unreasonable and amoral in that it is a requirement that employees consent to having a battery committed on their body to retain his/her employment”. The Applicant submits “[f]urthermore the requirement was actually for the applicant to allow the respondent to commit the battery and administer a free flu vaccination program itself”.

[81] The Applicant submits that the requirement is unlawful because of the requirement at law that an individual must consent to medical procedures performed on his/her body. The Applicant relies here on the decision in Schloendorff v Society of New York Hospital, 14 in which the classical expression of that principle was provided as follows:

“[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent, commits an assault.”

[82] The Applicant notes this principle was approved by the High Court in Secretary, Department of Health and Community Services v JWB. 15

[83] The Applicant submits further that the actual communication of the requirement to her was unlawful in that it constituted an assault on the Applicant, because the Respondent “deliberately or recklessly” 16 caused her to be in apprehension that the Respondent would arrange for her to be subject to a battery.

[84] The Applicant submits that the requirement is also unreasonable as it is contrary to the Handbook.

[85] Therefore, the Applicant submits that the reason given for the dismissal, being incapacity to perform duties of the position due to inherent requirements, was not a valid reason. The Applicant submits that in the circumstances, there was no valid reason for her dismissal…………………………………….

(The Deputy President now moves on to publish his reasons for decision).

 

CONSIDERATION

[292] Regarding the criteria contained in s.387 of the Act, as extracted above, I am required to consider each of these criteria to the extent they are relevant to the factual circumstances before me. 25

[293] Prior to setting out the consideration of each of these criteria below, it is beneficial to set out the broad thrust of each parties’ submissions. The Respondent, as is clear from the evidence above, has argued that the dismissal was fair because the Applicant lacked capacity. However, the Respondent’s submissions largely focus on whether the policy was lawful and reasonable. Any management direction must be a lawful and reasonable one, but this is a question independent of whether an employee has capacity. An allegation of incapacity naturally requires a consideration of the inherent requirements of the role and the capability of the employee to perform those essential elements of the job.

[294] The totality of the Respondent’s arguments regarding capacity are a rebuttal of the authority presented by the Applicant. While a detailed analysis is provided of what is reasonable and lawful, no stipulation is given by the Respondent as to what inherent requirement the Applicant cannot perform, nor what the proper construction of the law surrounding capacity is. The Applicant, in reliance on the reason for dismissal being a lack of capacity, presented detailed grounds as to the fact that she could perform the inherent requirements of the role. However, somewhat unhelpfully, the Applicant does not in any great detail rebut the proposition that the vaccination policy is not reasonable and lawful.

[295] The situation this creates is one where the key submission of both the Applicant and Respondent are not directly agitated by the other party. Such a situation is less than ideal, especially where both parties have the benefit of legal representation and counsel. The submissions are further hindered by a series of somewhat spurious claims levied by the Applicant which obfuscate the key issues at hand and make a novel case even more unclear.

[296] Now I must turn to a question which is not answered by the more than two thousand pages of material before me: why the Respondent sought to dismiss the Applicant for a purported lack of capacity and not for alleged misconduct – that is, a breach of the mandatory vaccination policy they had recently implemented. It appears that at some unidentified point, the Respondent abandoned misconduct in favour of capacity. As will be seen throughout my consideration, I find this to be an unfortunate choice by the Respondent. I say this because I am not satisfied on the material before me that the Applicant lacked capacity to perform the inherent requirements of her role. I am satisfied however, that a valid reason for dismissal exists, by virtue of the Applicant’s conduct in failing to comply with the lawful and reasonable direction of the Respondent to be vaccinated against influenza.

[297] The submissions and subsequent litigation would have been made far simpler had the Respondent dismissed the Applicant on grounds of misconduct. Further, it would have allowed the Applicant to properly engage with the legal issues that are relevant, as opposed to submissions based on a lack of capacity.

[298] With the above context provided, I will now consider the criteria presented by the Act.

s.387(a) – whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees)

[299] When considering whether there is a valid reason for dismissal, the reason must be ‘sound, defensible or well founded.’ 26 A reason which is ‘capricious, fanciful, spiteful or prejudiced’ cannot be a valid reason.27

[300] Both parties have established that the grounds for termination in this case were related to capacity.

[301] Before contemplating whether obtaining the influenza vaccination can be considered an inherent requirement that impacts capacity, it is important to consider whether enforcing the policy, and the subsequent obligation to be vaccinated, can amount to a reasonable and lawful direction.

[302] As will be seen from the reasoning below, I am satisfied that it is a lawful and reasonable direction for Goodstart to implement the policy mandating flu vaccination for the Applicant. However, I am not satisfied that the vaccination amounts to an inherent requirement of the Applicant’s role. Despite that, I consider the direction to be vaccinated is lawful and reasonable and, therefore, a valid reason for termination exists based on the Applicant’s conduct in failing to comply with that direction.

What constitutes a reasonable management direction

[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.

[304] Conversely, where an employee fails – or refuses – to comply with a direction that is either unlawful or unreasonable, no cause of action manifests. Failure to follow such a direction does not provide a valid reason for dismissal.

[305] If there is no express term which crystallises the obligation to follow a reasonable management direction, then the implied duty will operate only to the extent that it is not contrary with the express terms contained within the workplace instrument. 30

[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

[307] This was summarised concisely by the Full Bench in King: 32

“[26] It is well established that an employee has an obligation, implied by law, to comply with the lawful and reasonable directions of his or her employer. The circumstances in which an employer’s direction will be lawful were described by Dixon J in The King v Darling Island Stevedoring and Lighterage Company Limited; Ex Parte Halliday and Sullivan in the following terms:

“If a command relates to the subject matter of the employment and involves no illegality, the obligation of the servant to obey it depends at common law upon its being reasonable. In other words, the lawful commands of an employer which an employee must obey are those which fall within the scope of the contract of service and are reasonable.”

[27] The expressions in the above passage “relates to the subject matter of the employment” and “within the scope of the contract of service” have been regarded as synonymous in respect of the limitation expressed. The scope of employment is a somewhat broader conception than just the course of the performance of duties under the employment contract. Textbooks have described the scope of the employment of an employee as determined by the nature of the work the employee is engaged to do, the terms of the contract, and customary practices or the course of dealings between the parties. It does not extend to private or personal activities of the employee not affecting his or her work…”.

[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. This was summarised in CFMEU v Glencore: 33

“[9] In Woolworth Ltd v Brown a Full Bench of the Commission observed as follows:

“In the modern era employers face an often bewildering array of statutory obligations in relation to matters such as health and safety, discrimination, taxation, trade practices and fair trading to mention the most obvious examples. Employers face potential liability arising from their common law duty of care to their employees and to members of the public. Employers may be subject to contractual obligations that require them to conduct their business in a particular way or to meet particular standards or observe particular constraints. For these reasons it is entirely reasonable, and often necessary, for employers to put in place policies, with which employees must comply, to facilitate the employer’s compliance with its obligations and duties. (at [24])

What is reasonable will depend upon all the circumstances including the nature of the employment, the established usages affecting it, the common practices which exist and the general provisions of the instrument governing the relationship. A policy will be reasonable if a reasonable employer, in the position of actual employer and acting reasonably, could have adopted the policy. That is, a policy will only be unreasonable if no reasonable employer could have adopted it. A policy will not be unreasonable merely because a member of the Commission considers that a better or different policy may have been more appropriate. As the Full Bench observed in the XPT case, albeit in a somewhat different context, it is not the role of the Commission ‘to interfere with the right of an employer to manage his own business unless he is seeking from the employees something which is unjust or unreasonable.’” (at [35])

[10] In Briggs v AWH the Full Bench relevantly said (at [8]):

“The determination of whether an employer’s direction was a reasonable one … does not involve an abstract or unconfined assessment as to the justice or merit of the direction. It does not need to be demonstrated by the employer that the direction issued was the preferable or most appropriate course of action, or in accordance with “best practice”, or in the best interests of the parties. The proper approach to the task is that identified by Dixon J in The King v Darling Island Stevedoring and Lighterage Company Limited; Ex Parte Halliday and Sullivan.”

[11] Whether a direction is reasonable is essentially a question of fact and balance.”

[309] What can be considered reasonable will likely differ for each individual employer. So much is almost certain when considering the unique regulatory obligations and industry practices that an employer can face. This is only compounded by the case law, which provides that it is not the role of the Commission to interfere with the right of an employer to manager their own business. The choice of the employer need not be the most reasonable decision, but simply fall within the realm of reasonableness. Given that reasonableness is a question of fact and balance, it is difficult to predict what will be considered reasonable en masse.

[310] The Applicant’s employment was covered by her most recent contract of employment dated 3 September 2014. That contract impliedly required Ms Barber to obey lawful and reasonable directions of Goodstart. It also expressly required Ms Barber to “comply with [Goodstart’s] policies and procedures that may be implemented and varied from time to time.” 34 In Woolworths v Brown, the Full Bench articulated that an employer is empowered to rely on an express term of the contract, but in the absence of an express term can rely on the implied term to obey lawful directions:35

“Any obligation on an employee to observe a policy established by the employer must be founded in the terms of the contract of employment. A requirement to observe a policy may be an express term of the contract. Indeed, a contract of employment may even incorporate a policy by reference. In the absence of an express term, the matter turns on the implied term to obey lawful directions. Such a term is implied into contracts of employment. In Adami v Maison de Luxe Ltd Isaacs ACJ observed:

“It is no doubt a correct principle that, once the relation of employer and employee is established, obedience to lawful orders is, if not expressly, then impliedly, contemplated by the contract creating the relation, and mere disobedience of such orders is a breach of the bargain.”

[311] Goodstart asserted that the Applicant’s employment was terminated because she lacked capacity, not because of her conduct in purportedly failing to comply with an express term of her employment contract incorporated through the policy.

Is the mandatory vaccination requirement lawful and reasonable?

[312] In determining whether there was a valid reason, it must first be considered whether it was a lawful and reasonable direction to implement a mandatory vaccination requirement.

Reasonable

[313] What is reasonable is a question of fact; it “does not involve an abstract of unconfined assessment as to the justice or merit of the decision.” 36 The direction must relate to the subject matter of the employment, which is informed by the “nature of the work the employee is engaged to do, the terms of the contract, and customary practices or the course of dealings between the parties.”37 The policy need only be reasonable, and it is immaterial that a “better” policy may exist.38

[314] I am satisfied that the policy was reasonable for the following reasons.

Legal obligations

[315] In considering what is reasonable, it is important to give consideration to the various statutory obligations that Goodstart has in performing its undertaking. It is apparent that these will impact how Goodstart must conduct itself.

[316] Goodstart submits that it has two key duties under the WHS Act, with which they must comply:

“Goodstart’s first duty is to ensure, so far as reasonably practicable, the health and safety of Ms Barber and all of its other childcare workers. 39 Goodstart’s second duty is to ensure the children under its care are not put at risk from work carried out by its childcare workers.40 These two duties require Goodstart to eliminate risk, and if not practicable, reduce risk so far as is practicable.41 A failure to comply with these duties may amount to a crime and can result in the imposition of substantial fines, and even the imprisonment of Goodstart’s officers.42

[317] The Applicant also has corresponding obligations under the WHS 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.” 43

[318] With respect to their care of children, Goodstart also submits it has unique additional statutory obligations to: 44

“(a) implement health and hygiene practices;

(b) prevent the spread of infectious disease at its childcare centres;

(c) have policies and procedures dealing with infectious disease;

(d) take all reasonable steps to ensure that written policies and procedures are followed; and

(e) otherwise ensure that every reasonable precaution is taken is taken to protect

children from harm or injury.”

[319] With respect to Goodstart’s obligation under reg 88 to manage infectious disease, these obligations only arise “if there is an occurrence of an infectious disease at an education and care service” and therefore, do not apply as a blanket rule to prevent the spread of infection, as Goodstart submits. 45 This does not impact Goodstart’s need to have policies and procedures dealing with infectious disease as required by reg 168. It does not mean that it is illogical for Goodstart to attempt to prevent that risk before it occurs, and this remains good practice, but perhaps not a legislative requirement.

[320] Goodstart operates within an industry which is highly regulated and where safety is of paramount importance. Children represent a particularly vulnerable group who do not have the same faculties and capabilities as adults. The presence of targeted legislation highlights that fact. As a matter of common sense, this legislation reflects the concerns that parents have for the safety of their children. Given this environment, it is not only logical but necessary in the circumstances for Goodstart to have clear and stringent procedures in place to enhance and ensure safety.

[321] Further, it is apparent 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. 46

[322] The Respondent’s commitment to infection prevention is apparent; all staff are already required to be vaccinated against whooping cough, measles, mumps and rubella. This reflects legislative requirements in order to access the government subsidy for childcare. Goodstart also has a voluntary influenza program, which covers the cost of inoculation for staff.

[323] Importantly, these regulations do not implement a strict design by which to fulfil these obligations and therefore, it is for Goodstart to design its own system to eliminate or reduce the risk for workers and other persons in the workplace. Goodstart has chosen mandatory vaccination as the means through which to ensure compliance with these statutory duties. While this is not enough to conclude mandatory vaccination is reasonable, it lends towards such a finding.

Government recommendation

[324] Ms Warren-Wright introduced evidence of various recommendations that people who work with children should get the flu vaccination, including from the National Health and
Medical Research Council, Queensland Health, New South Wales Health and the Victorian Department of Health and Human Services. 47

[325] Goodstart asserts that these recommendations inform what can be considered reasonably practicable in line with their WHS Act obligations as they inform what Goodstart knows, or ought to reasonably know, about the ways of eliminating or minimising risk. 48

[326] While these recommendations advocate vaccination, this is not the same as ‘mandatory’ vaccination. They use language such as “recommend that all educators and other staff are immunised”, “staff should consider having yearly influenza vaccinations” and “vaccination is strongly recommended”. 49 These recommendations could still, however, inform a reasonable employer that mandatory vaccination is appropriate and the Victorian advice states that “employers should take all reasonable steps to encourage nonimmune staff to be vaccinated.” This is evidence of the environment in which Goodstart operates and provides insight into how the decision to implement mandatory vaccination may have been reached.

Necessary to ensure safety and welfare

[327] Goodstart asserts that “vaccination of Ms Barber and her colleagues meant that the risk of the transmission of influenza between employees, children and their families would reduce.” The Applicant attacked the evidence of Dr Lingwood as to the purported effectiveness of the influenza vaccine. In his statement, Dr Lingwood presented that “a recent large review of studies found that in healthy adults, the vaccination decreases the risk of contracting confirmed influenza by 59%. The range of reduction across different studies varied between a reduction of 64% and 53%.” 50 The Applicant presented that the effectiveness was as low as a range of 29% and 39%, between 2017 and 2020. The Applicant further asserts that this was not contradicted by Dr Lingwood.

[328] Dr Lingwood agreed that the effectiveness in 2018 was as low as 29%, but maintained that “the vaccine effectiveness varies between about 40 percent and 60 percent, as a whole across multiple different years.” 51 Dr Lingwood described during cross-examination the effect of antigenic drift, which can result in changes to the protein structure of the virus and result in a less effective vaccination in a given year.52 Results as low as 29% appear to be the outlier in a generally higher trend of effectiveness.

[329] It is clear that the effectiveness of the vaccine varies in a given year. On average, the vaccine is about 40%-60% effective, but even at its absolute worst, it is still 29% effective. This means that even when least effective, the vaccination still reduced the risk of infection to a vaccinated person by 29%. 53 It follows that the Applicant’s argument at its strongest is that the vaccine, in its worst year, will only reduce the risk of infection by 29%. While efficacy of the vaccine may change it is uncontroversial that the influenza vaccination reduces the risk of infection and therefore transmission. It can be concluded that vaccination, regardless of the degree of effectiveness, directly reduces the risk of infection to those parties that the Respondent has a duty of care towards, whether it be children or staff.

[330] Even at its least effective, a reasonable employer could still adopt a policy of mandatory vaccination. Influenza typically causes fever, sore throat, other respiratory problems, muscle or joint ache, and fatigue. 54 In some individuals, influenza can progress to pneumonia, acute respiratory distress syndrome, central nervous system failure, multi-organ failure, heart attack, and death.55 Children under five years of age (but particularly under two) are at an increased risk of morbidity and mortality.56 Hospitalisation rates are greatest amongst those children less than six months of age, and such children cannot be vaccinated against influenza.57 Even if the vaccine was to be less effective for Ms Barber, given her coeliac condition, this would not make it any more reasonable for her not to be vaccinated. That is, while the efficacy may be lower, on the medical evidence provided the risk is no greater. The concerns raised by the Applicant regarding the acute risk to her based on family history and a sensitive gut are unsupported and I do not find them to be persuasive.

Control methods

[331] It is asserted that vaccination is a superior control measure, in conjunction with other control measures, when considering the hierarchy of controls and their application in a childcare environment. Goodstart submitted that “substitution, isolation engineering and administrative controls are not available, not practicable, and do not by themselves wholly eliminate or reduce the risk of the transmission.” 58 This is because:

“•  It is not practicable to create isolation barriers between individuals at the workplace. Hygiene controls are user dependent and liable to human error (particularly with children). 59 The sick leave entitlement can only act as an isolation measure after the employee identifies the virus, and is reliant on the employee of taking the step of removing themselves from the workplace.60

  • Government advice accepts that is not practicable to socially distance in a childcare environment. 61The unions’ position during consultation was similarly that childcare workers are not able to practice social distancing.62
  • PPE in a childcare environment is likewise not practicable. Inherent in the work of a childcare worker is close contact and demonstrating affection. Every time an employee touches a child they would be required to dispose of their PPE and replace it before touching another child. The use of PPE scared children during the management of the COVID-19 pandemic.” 63

[332] With respect to the practicability of vaccination, Goodstart stated the average efficacy and concluded that greater vaccination will result in less general transmission to other people. Lower transmission would clearly facilitate Goodstart’s obligations to manage the spread of infection if there is an occurrence of an infectious disease under the Education and Care Services National Law Act 2011. Holistically, vaccination also provides a unique benefit in generating some herd immunity: “the more staff that are vaccinated, the more protection is created between staff. This, in turn, adds protection to those who cannot be vaccinated (such as the children in Goodstart’s care that are six months old or less).” 64

[333] The childcare environment exhibits unique characteristics, given the nature of the work. Children and Educators are in close contact numerous times a day, for up to 12 hours per day. 65 As established above, social distancing is not as practical as in many other industries. The concern of this is compounded where the subjects to whom proximity is greatest do not have developed hygiene skills, or an immune system comparable to an adult.66 To create even more concern, childcare workers are subject to biological hazards on a routine basis from children in their care: vomit, faeces, urine, saliva and tears. These factors create a veritable melting pot in which to transmit a virus.

[334] To supplement a lack of vaccination, Goodstart would need to implement various other controls which, on the evidence before me, are either impractical or ineffective and subject to human error. It may be that they are sufficient to alleviate the statutory obligations on the Respondent, but that is not the relevant question to answer; it is whether the choice adopted is a reasonable one. The alternative arrangement would be to adopt a litany of secondary controls which would invite significant operational change and place a consistent administrative burden on Goodstart to ensure compliance across their numerous facilities. These factors are relevant in assessing what is reasonable.

Policy appropriately adapted

[335] The Respondent stated that the policy was reasonably and appropriately adapted in so far as it did not require a staff member to be vaccinated if they had a medical exemption which made it unsafe for them to do so. Each exemption was on a case-by-case basis and determined by a panel which consisted of legal, safety, human resource and operational expertise.

[336] The Applicant notes that no medical expertise was present on the panel and that the policy required an objective assessment of whether there was a medical condition which makes it unsafe to be vaccinated. 67

[337] The reason for this is largely because medical advice should not have been needed by the panel. The Respondent’s instructions were pellucid, and a template form was provided for the Applicant’s medical practitioner to complete, if they were satisfied there was a risk in vaccination. The onus is on the Applicant, who is seeking the exemption, to adduce evidence of why an exemption should be granted. The Applicant was unable to do so.

[338] The Respondent, by all accounts, allowed a lengthy amount of time for the Applicant to provide that evidence. All she could produce were vague certificates which attest nothing substantive, and email correspondence indicating that she could not get the template form filled out because she did not suffer from anaphylaxis. It is not required that Goodstart compile medical evidence or give a medical opinion; what is required is an assessment as to whether the material provided indicates a valid exemption. The Respondent, if they are unsure, is at liberty to ask for further information, and in the case of Ms Barber this was done, but only produced another nugatory medical certificate. I am satisfied the Respondent complied with the policy.

[339] As to comments of the Applicant that the policy could have been differently formulated, this is not the legal test which I am to apply. The question is one of reasonableness of the policy at hand. 68

Union consultation

[340] Goodstart engaged in consultation with the unions who have industrial coverage over their workforce:

“The product of this consultation was that the United Workers’ Union, the Independent Education Union of Australia and the Australian Education Union all agreed and supported the decision to mandate the influenza vaccination. The United Workers’ Union went to the added step of requiring its organisers who entered childcare centres to be vaccinated against influenza.” 69

[341] An employer might infer that should a union assent to a course of action, it may be more readily considered a reasonable one. I note this ground asserted by the Respondent, but accord it little weight.

Implementation

[342] Goodstart further asserts that they ensured appropriate measures were taken to allow all employees the opportunity to reply. It extended timeframes to comply and undertook additional consultation with those who required it, such as Ms Barber. This consultation took place in writing, and also in person. Vaccination was also funded by Goodstart, to ensure there were no out of pocket expenses. In extending the time to comply, Goodstart’s process is more readily considered reasonable; it is proper practice when implementing a policy which brings about a mandatory requirement, to ensure that more than ample time is provided to ensure compliance, or to allow an objection to be properly raised.

Conclusion – reasonable

[343] At the heart of Goodstart’s purpose is rigorous care and education for a vulnerable and still developing group that lack the capacity to care for themselves – children. They are entrusted with the care of over 70,000 children across Australia and are held to extremely high standards in not only nurturing, but also protecting those children. The Applicant, as an Educator, played an instrumental part in this purpose. This environment in which Goodstart operates is pivotal in determining what is considered reasonable; it provides the surrounding context upon which the Respondent has informed their decision.

[344] The Respondent has, in fulfilling their obligation to best care for these children, decided on what they perceive to be the correct option and such a management prerogative is not to be lightly curtailed, unless it would be unreasonable to do so. It is not for the Commission to determine how Goodstart should organise its enterprise, or to find that the policy is unreasonable due to the presence of a potentially more favourable approach.

[345] In deciding to opt for mandatory vaccination in their staff, due consideration was given to the various other controls that were available, which were all deemed ineffective or impractical to implement; this conclusion was aided by the evidence of Dr Lingwood regarding those controls and their limited application in a childcare environment.

[346] Goodstart operates within a highly regulated environment, which creates statutory obligations beyond that of a normal employer; safety and quality care are of paramount importance and this is the environment in which Goodstart’s policy must be scrutinised. The childcare industry faces unique organisational challenges which make other controls less effective, or impracticable. I am satisfied that it is reasonable for a childcare provider to mandate flu vaccination for those staff who deal with children on such a regular basis, and in such close proximity. While the policy requires mandatory vaccination, it does allow for medical exemptions and Goodstart covered the expenses associated with the policy and provided extended timeframes for Ms Barber to gain compliance. I am satisfied that ‘a reasonable employer, in the position of actual employer and acting reasonably, could have adopted the policy’. 70

[347] I am satisfied that the Respondent’s adoption of mandatory vaccination for its educators is reasonable.

Lawful

[348] Having concluded that the policy is reasonable, I must now address whether the policy can be considered lawful.

[349] The Respondent states that for “a requirement to be lawful, it must be shown to be within the scope of the contract of employment. If the requirement is within the scope of the employment but otherwise illegal (e.g. it requires the employee to commit a crime), then the requirement will not be lawful.”

[350] The Applicant did not assert that the policy was outside the scope of the contract of employment, and this seems logical given that the policy was incorporated into that contract. I am satisfied that the direction was within the scope of the contract of employment.

[351] The Applicant asserts that the requirement to be vaccinated is unlawful because an individual must consent to medical procedures being performed on their person. The Applicant drew on medical case law, stating that “the law treats as unlawful, both criminally and civilly, conduct which constitutes an assault or trespass to the person…” 71

[352] The Applicant asserted that this constituted the tort of assault and the tort of battery.

[353] The allegation of battery is likely to fail. It is clear that Ms Barber never actually received the vaccination; she asserted her right not to be vaccinated and therefore the lengthy medical exemption and show cause process detailed above was undertaken. Battery requires “the defendant doing an act which causes physical contact with the plaintiff.” 72 No contact with the Applicant was alleged at any point and I am not satisfied the action would be successful.

[354] The allegation of assault is also likely to fail. The following elements are required for an action to sound in tortious assault: 73

“(1) A threat by the defendant, by words or conduct, to inflict harmful or offensive contact upon the plaintiff forthwith. It is enough if the threat is to make contact to the body of the plaintiff without the plaintiff’s consent or without any legal justification.

(2) A subjective intention on the part of the defendant that the threat will create in the mind of the plaintiff an apprehension that the threat will be carried out forthwith. It is not necessary to prove that the defendant in fact intends to carry out the threat.

(3) The threat must in fact create in the mind of the plaintiff an apprehension that the threat will be carried out forthwith. It is not necessary for the plaintiff to fear the threat, in the sense of being frightened by it. It is enough if the plaintiff apprehends that the threat will be carried out without his or her consent.

(4) The apprehension in the mind of the plaintiff must be objectively reasonable.

(5) The plaintiff’s reasonable apprehension caused injury, loss or damage to the plaintiff. This requirement attracts the ordinary common law concept of causation by reference to commonsense and, where appropriate, consideration of normative factors such as value judgments and policy considerations.”

[355] On the evidence before me, the Applicant’s alleged perception that Goodstart would threaten to inflict a vaccination on her does not seem objectively reasonable. From the material filed by both parties, it is apparent that the worst possible outcome for the Applicant was termination of her employment. The idea that Goodstart would threaten to Ms Barber that they would vaccinate her seems fanciful.

[356] It does not seem far-fetched to say that the process of implementing mandatory vaccination may have made Ms Barber feel threatened that she must provide her consent to the vaccination, or face termination (or otherwise qualify for a medical exemption). However, this is not the same as the threat of being forcibly vaccinated. For the reasons above, I am not satisfied an action in assault would be successful.

[357] In any event, it is speculative whether Goodstart would be held responsible in vaccinating the Applicant, as the injection would likely be administered by some third party. This would likely impact on both actions above, as the likely perpetrator would not even be Goodstart. However, having already satisfied myself that both actions would be unsuccessful, this is irrelevant.

[358] The Applicant also made allegations that the Respondent made knowingly misleading comments and exerted undue influence. These do not relate to whether the policy was unlawful but are allegations of unlawful conduct by the Respondent; as such these are considerations towards whether the dismissal was unfair, not whether the policy was lawful.

[359] In light of the above, I am satisfied that the requirement for mandatory flu vaccination was lawful. It was within the scope of the Applicant’s employment and is not otherwise illegal.

Did Ms Barber present a valid medical exemption?

[360] In assessing that the policy was reasonable, consideration was given to the fact that the policy was reasonably adapted to account for any valid medical exemptions. In assessing whether Ms Barber’s failure to comply with the policy was reasonable, it is therefore necessary to determine whether she presented a valid medical exemption.

[361] Ms Barber failed to produce an adequate medical exemption to the policy. Her argument at its strongest consists of a sensitive immune system, that she suffers from coeliac disease and that she alleges to have had a reaction in the past.

[362] Ms Barber’s coeliac condition is not contested. Dr Lingwood canvassed that a sensitive immune system is not a recognised or defined medical condition, but that coeliac does represent a condition related to immune system dysfunction. It has been stated above that this did not have any effect on Ms Barber’s capability to have the vaccination, except that she may have benefited from a vaccine, given her acute risk in being coeliac. In determining whether Ms Barber had a valid exemption the effectiveness of the vaccine is irrelevant.

[363] As to the alleged reaction, there is no record of such an event, beyond Ms Barber’s statement. Further, the reaction is not clearly detailed. All that is clear from the evidence is that the condition is not anaphylaxis, as Ms Barber herself stated. 74 It is a logical inference that had the reaction been a genuine risk, a medical professional would have provided a certificate stating as much. The Applicant was given more than sufficient opportunity and failed to provide any evidence that would show she was medically exempt. In the absence of sufficient material, it is not Goodstart’s responsibility to facilitate a medical examination, although this was an option available and may have been of some value.

[364] The Respondent carefully followed a process and provided ample time for the Applicant to provide any information in support of her position, however she was not able to do so. The following paragraphs from Ms Warren-Wright’s evidence provide an adequate summary:

“On 2 May 2020, for the first time Ms Barber provided a medical certificate in support of her objection. The certificate stated Ms Barber had a “sensitive immune system” and “reports to reacting quite badly to Flu Vaccination”. Ms Barber was asked to have her doctor confirm that her medical condition would place her at an increased risk of an adverse reaction if she received the vaccination. Ms Barber indicated her doctor refused to sign the form.

Ms Barber was given another opportunity to provide medical advice that the vaccination was unsafe for her. On 17 July 2020, Ms Barber provided another medical certificate which did not mention her auto-immune condition, but which reported Ms Barber suffered an allergic reaction previously but that surgery had no record of it. No further information was provided. Ms Barber indicated her doctor would not sign the form we had requested she get completed.”

[365] The medical analysis of the Applicant was undertaken by her treating medical practitioners. Ms Barber went to multiple practitioners to seek a statement that she was at risk in being vaccinated against the flu. What she presented to them is irrelevant. What is relevant is that those doctors, on their medical expertise and having treated the Applicant, did not feel compelled to provide any statement that there was any risk to the Applicant in receiving the flu vaccination. An inference can be logically drawn that if several medical practitioners refused to grant a medical certificate that there was no reason for a medical certificate to be provided.

[366] The Applicant asserted that it was the evidence of Dr Lingwood that he could not state whether it was safe or unsafe for Ms Barber to get the influenza vaccination. Dr Lingwood’s statement clearly indicates that “based on the available information which was provided to Goodstart which I have reviewed however, it is my professional medical opinion there is no evidence of a medical barrier to Ms Barber receiving an influenza vaccination.” 75 This statement clearly indicates that on the medical evidence provided at hearing, there is no indication that Ms Barber would be medically exempt. This appears to be consistent with the views of Ms Barber’s practitioners who also could not provide a statement indicating it was unsafe. I reiterate that it is the role of the Ms Barber to provide any evidence for exemption, not Goodstart.

[367] It is important to note that Dr Lingwood did not treat Ms Barber at any point and so he cannot conclusively state that it is safe for the Applicant to be vaccinated; his opinion provides that at the point of hearing no cogent evidence was provided that it was unsafe. It provides a statement that Ms Barber, at the time of trial, had failed to provide any compelling evidence she was unable to be vaccinated. His evidence was not that of the Applicant’s treating practitioner, but as a third party reviewing the evidence provided, and in this capacity, I find Dr Lingwood’s evidence helpful. Dr Lingwood’s evidence was also contemporaneous, in the sense that it included a pathology report from 2012 not initially provided by the Applicant. This further evidence did not impact on his opinion that there was a medical exemption.

Conclusion – medical exemption

[368] I am not satisfied that the Applicant presented a valid medical exemption to the Respondent. This finding turns on the sheer lack of evidence provided where it seems fair to say that almost every conceivable opportunity was provided. The Respondent did not need to be satisfied that it was safe for the Applicant to be vaccinated; the Respondent was required to assess whether there was a valid medical exemption based on the medical opinions of the Applicant’s practitioners.

[369] On the Applicant’s own account, multiple doctors refused to provide her a statement that she should be exempt from vaccination. In a scenario where the cost of visiting medical practitioners was covered by the Respondent, there was no barrier to collecting this information, if it existed. In the absence of that evidence, it is unclear how I, or Goodstart, could be satisfied that there was valid ground for a medical exemption. The Applicant was provided ample time to seek medical opinions, and what she produced was evidence of coeliac disease, vague unsubstantiated accounts of an allergic reaction that was not anaphylaxis, and a statement that she a sensitive gut, which is not known to be a medical condition. None of the above satisfies me that a medical exemption should have been granted in the circumstances.

Applicant’s submissions regarding inherent requirement

[370] The Applicant asserts correctly that she was dismissed for failing to meet the inherent requirements of her role to be vaccinated against the flu. This is stated in the termination letter of 13 August 2020. The argument of the Respondent is that this impinges the capacity of the Applicant to perform her role.

[371] As prefaced, I am not satisfied that being vaccinated against the flu can constitute an inherent requirement of the Applicant’s employment. My reasoning is as follows.

[372] Both the Applicant and the Respondent begin by referencing Re Crozier: 76

“…The word “capacity”, as used in s 170CG(3)(a), means the employee’s ability to do the work he or she is employed to do. A reason will be “related to the capacity” of the employee where the reason is associated or connected with the ability of the employee to do his or her job… Plainly, there can be a valid reason for the termination of an employee’s employment where he or she simply does not have the capacity (or ability) to do the job. In this case, the Full Bench found that Mr Crozier knew that “the main focus of his position was to generate new business”; that he failed to meet this objective; and that his failure was not due to external factors but to a lack of capacity (or ability) as a sales representative (at 150 & 152-153)…”

[373] From this extract, the Applicant asserts that “a reason will be related to the capacity of an employee where the reason is associate or connected with the ability of the employee to do his or her position.” The Respondent went further, indicating that “capacity is a question of the employees ability or willingness to do the job” and that “capacity can extend to the employee’s performance.” Reference was also made to a refusal to use new technology 77 and a refusal to comply with the procedure of the employer.78

[374] The Applicant then went on to define capacity as embracing physical, mental, or legal capacity, citing Christie. 79 The Applicant throughout their submissions on capacity drew on authorities such as Qantas v Christie and X v Cth, both of which relate to capacity within the discrimination framework.80 The Respondent argues that reliance on this authority is misplaced.

[375] It seems clear that the discussion surrounding inherent requirement in the decisions of Christie and X v Cth are primarily an interpretation of the discrimination legislation; in X v Cth McHugh J states explicitly that the judgment revolves around “…construing the phrase “the inherent requirements of the particular employment” in s 15(4) of the Disability Discrimination Act 1992 (Cth)…”.

[376] The weight that can be given to these authorities in interpreting an inherent requirement in this case is questionable. It may be, as Deputy President Asbury stated in almost the same circumstances, that “[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. 81 However, it may be that what can be defined to be an inherent requirement can be informed by that authority, noting J Boags & Sons where the Full Bench stated:82

“[23] In X v Commonwealth the High Court was concerned with an allegation of discrimination on the grounds of disability contrary to the Disability Discrimination Act 1992 (Cth) by a solider who had been dismissed from the army on account of being HIV positive. Section 15(4) of that Act contains an exemption from liability if the person “would be unable to carry out the inherent requirements of the particular employment”. Gummow and Haynes JJ addressed the notion of “inherent” requirements:

“[102] The reference to “inherent” requirements invites attention to what are the characteristic or essential requirements of the employment as opposed to those requirements that might be described as peripheral. …[T]he requirements that are to be considered are the requirements of the particular employment, not the requirements of employment of some identified type or some different employment modified to meet the needs of a disabled employee or applicant for work.”

[24] Although the High Court was concerned with the meaning of the expression “inherent requirements” in a statute, this analysis is equally applicable to a consideration of what constitutes the “inherent requirements” of a position as a valid reason for dismissal.”

[377] I am satisfied that capacity in the current context is not confined to merely physical, mental or legal capacity; the authorities of this Commission and its predecessors indicates a more generous scope. I am also satisfied that the interpretation of an inherent requirement in a different context, while perhaps not binding, can provide some guidance. As to the interpretation of inherent requirement it is my view, balancing the evidence and authority before me, that vaccination against the flu does not constitute an inherent requirement of the Applicant’s role.

Submissions on inherent requirement

[378] The Applicant states a decision will be relative to capacity if associated or connected with the ability of the employee to do his or her position and that the “reference to capacity in the section is a reference to the capacity of an employee to perform the duties of the position occupied by the employee”. I do not quarrel with that contention. 83

[379] The Applicant’s submissions regarding inherent requirement pivoted around an extract from X v Cth:

“[31] Whether something is an “inherent requirement” of a particular employment for the purposes of the Act depends on whether it was an “essential element” of the particular employment. However, the inherent requirements of employment embrace much more than the physical ability to carry out the physical tasks encompassed by the particular employment….

[35] Christie stands for the proposition that the legal capacity to perform the employment tasks is, or at all events can be, an inherent requirement of employment. It shows that in determining what the inherent requirements of a particular employment are, it is necessary to take into account the surrounding context of the employment and not merely the physical capability of the employee to perform a task unless by statute or agreement that context is to be excluded. Far from rejecting the use of such context, s 15(4) by referring to “past training, qualifications and experience … and all other relevant factors”, confirms that the inherent requirements of a particular employment go beyond the physical capacity to perform the employment.”

[36]. What is an inherent requirement of a particular employment will usually depend upon the way in which the employer has arranged its business. In Christie, Brennan CJ said:

“The question whether a requirement is inherent in a position must be answered by reference not only to the terms of the employment contract but also by reference to the function which the employee performs as part of the employer’s undertaking and, except where the employer’s undertaking is organised on a basis which impermissibly discriminates against the employee, by reference to that organisation.”

[37] Unless the employer’s undertaking has been organised so as to permit discriminatory conduct, the terms of the employment contract, the nature of the business and the manner of its organisation will be determinative of whether a requirement is inherent in the particular employment. But only those requirements that are essential in a business sense (including where appropriate public administration) or in a legal sense can be regarded as inhering in the particular employment. The Commission must give appropriate recognition to the business judgment of the employer in organising its undertaking and in regarding this or that requirement as essential to the particular employment. Thus, in Christie, Qantas had no obligation to restructure the roster and bidding system which it utilised for allocating flights to its pilots in order to accommodate Mr Christie. In the end, however, it is for the Commission, and not for the employer, to determine whether or not a requirement is inherent in a particular employment.”

(emphasis added)

[380] The Applicant’s submissions regarding inherent requirement concluded with the following extracts from Hail Creek and Christie: 84

“[124] The phrase “inherent requirements” has been judicially considered to mean something that is essential to the position. [See generally X v The Commonwealth (1999) 200 CLR 177] To determine what are the inherent requirements of a particular position usually requires an examination of the tasks performed, because it is the capacity to perform those tasks which is an inherent requirement of the particular position. [Qantas Airways Ltd v Christie (1998) 193 CLR 280 at 304 per McHugh J] As her Honour Gaudron J said in Qantas Airways Ltd v Christie:

“A practical method of determining whether or not a requirement is an inherent requirement, in the ordinary sense of that expression, is to ask whether the position would be essentially the same if that requirement were dispensed with.”

  1. An employer cannot create an inherent requirement by stipulating something that is not essential. In Qantas Airways Ltd v Christie Gaudron J stated:

“It is correct to say, as did Gray J in the Full Court, that an inherent requirement is something that is essential to the position. And certainly, an employer cannot create an inherent requirement for the purposes of s 170DF(2) by stipulating for something that is not essential or, even, by stipulating for qualifications or skills which are disproportionately high when related to the work to be done…”

  1. Similarly Brennan CJ stated:

“In particular, I agree that a stipulation in a contract of employment is not necessarily conclusive to show whether a requirement is inherent in an employee’s position. The question whether a requirement is inherent in a position must be answered by reference not only to the terms of the employment contract but also by reference to the function which the employee performs as part of the employer’s undertaking and, except where the employer’s undertaking is organised on a basis which impermissibly discriminates against the employee, by reference to that organisation.”

(emphasis added)

Does mandatory vaccination constitute an inherent requirement?

[381] The Applicant states that the requirement must be an essential element of the particular employment. It is far from a novel construction of inherent requirement to include matters of health and safety as essential; it is a particular application of the inherent requirement to perform one’s role with reasonable care and skill. This was made clear in X v Cth, although was not referenced by the Applicant: 85

“Similarly, carrying out the employment without endangering the safety of other employees is an inherent requirement of any employment. It is not merely “so obvious that it goes without saying” – which is one of the tests for implying a term in a contract to give effect to the supposed intention of the parties. The term is one which, subject to agreement to the contrary, the law implies in every contract of employment. It is but a particular application of the implied warranty that the employee is able to and will exercise reasonable care and skill in carrying out his or her duties.

It would be extremely artificial to draw a distinction between a physical capability to perform a task and the safety factors relevant to that task in determining the inherent requirements of any particular employment. That is because employment is not a mere physical activity in which the employee participates as an automaton. It takes place in a social, legal and economic context. Unstated, but legitimate, employment requirements may stem from this context. It is therefore always permissible to have regard to this context when determining the inherent requirements of a particular employment.

Nevertheless, contract or statute to the contrary, performing the duties of the employment without unreasonable risk to the safety of fellow employees is, as a matter of law, an inherent requirement of employment…”.

[382] Ensuring satisfaction of the various statutory obligations before the Respondent can likely be classified as an essential element of employment; a failure of the Respondent to comply would render their business inoperable.

[383] It seems apparent to me that a duty of significant importance to an Educator, such as the Applicant, is the care of those vulnerable children within their supervision. So much is evidenced by the statutory duties of both the Respondent and more specifically the Applicant herself. There is a statutory obligation for the Applicant to take reasonable care to ensure her acts or omissions do not adversely affect the health and safety of other persons; vaccination, given the evidence regarding effectiveness, is an avenue to fulfil that duty. However, I am not satisfied that makes it an inherent requirement of the role. It is essential to comply with statutory duties, but I am not satisfied that it is logical to extend such a finding to stipulate vaccination as essential to the role of Educator.

[384] It is also relevant that there is a duty to comply and co-operate with Goodstart’s reasonable instructions, policies and procedures relating to health and safety at the workplace. 86 Where I have already concluded that the policy is reasonable and lawful, given Goodstart’s unique industrial reality, it follows that the duty of the Applicant to comply with that policy is enlivened. It is well established that a policy cannot artificially create an inherent requirement.87 Mandating vaccination, however reasonable and lawful the policy is, does not mean that vaccination is immediately an inherent requirement. Not every policy of an employer will enumerate an inherent requirement of a role, but so long as the direction is reasonable and lawful it will be one that an employee must comply with.

[385] Determining what classifies as an inherent requirement must be done in a way that takes into account surrounding context and all other relevant factors, including the nature of the business of which the Respondent engages. Reference must also be given to the organisation and in turn, how the employer has chosen to conduct its enterprise: “the Commission must give appropriate recognition to the business judgment of the employer in organising its undertaking and in regarding this or that requirement as essential to the particular employment.”

[386] It is well established that the Commission is not to stand in the shoes of the employer in making its determination; 88 so much is reflected in the extract above. A Full Bench of Fair Work Australia in Webb v RMIT relevantly stated:89

“The decision as to what method was required for an employee to comply with RMIT’s obligations to the Australian Quality Training Framework was not a matter for Ms Webb. RMIT decided that RPL would be undertaken. That was the direction given to Ms Webb. She did not agree with it. The Senior Deputy President found completion of an RPL program was an inherent requirement of Ms Webb’s position.”

[387] Goodstart has chosen to structure its enterprise in this fashion to satisfy its statutory obligations and to ensure safety and compliance in the particular industry they operate within. Compliance with these statutory requirements could potentially be classified as “essential in a business sense”, as vaccination does help prevent an unreasonable risk to the safety of fellow employees and to the potentially vulnerable children in Goodstart’s care. 90

[388] However, ensuring reasonable care and skill is not the same as stating that it is an essential requirement to be vaccinated. To that end, it is important to distinguish between an essential element and the means through which compliance with that essential element occurs. Even if being vaccinated fulfils the Respondent statutory obligation it does not follow that vaccination itself is essential – being vaccinated does not in its nature impact how the Applicant performs her role. As stated in Christie, it is pertinent to examine the tasks performed, as the capacity to perform those tasks inform what is an inherent requirement. I am not satisfied that being vaccinated changes the capacity of the Applicant to perform the tasks that make up the role. It may change the means through which the Applicant perform those tasks, but it is not the case that her capacity is limited.

[389] To find the Applicant lacks capacity is to state that vaccination is permanently and inseparably a quality or attribute of the role of Educator. I am not satisfied that this is possible on the evidence before me. It cannot be seen on the argument of the Respondent how vaccination is intrinsically a part of the Applicant’s role. This is only compounded by the Respondent’s argument being one focussed on what is reasonable and lawful, with little attention given to how those criteria properly apply to the question of what an inherent requirement is. It is also telling that the Respondent is capable of providing a medical exemption to the need for vaccination: it is counterintuitive for the Respondent to be able to provide a blanket exemption to an inherent requirement, especially when even discrimination legislation is qualified by a defence where an employee would be unable to carry out the inherent requirements of the particular employment. 91

Reasonable adjustment to the Applicant’s role

[390] The Applicant states that the Commission is required to determine whether the Applicant suffered from the alleged incapacity based on the evidence, and if so, whether there were any reasonable adjustments which could be made to the employee’s role to accommodate that role. Given I am not satisfied the Applicant suffers from an incapacity, it is not necessary to consider this.

Conclusion – inherent requirement

[391] For a criterion to be identified as an inherent requirement is, understandably, a higher bar than identifying a direction as reasonable and lawful. A myriad of reasonable and lawful directions will not constitute an inherent requirement of a role. The reason for this is that an inability to perform an inherent requirement almost certainly provides a valid reason for dismissal; 92 the same cannot be said of a breach of policy, which must be significant enough to constitute a valid reason for dismissal.93

[392] In Christie, the High Court provided that the logical question to ask is “whether the position would be essentially the same if that requirement were dispensed with?” The answer to that question is yes. Where other viable options exist to satisfy those statutory requirements, it is difficult to find that vaccination is an inherent requirement. Further, where the Applicant has successfully performed her role for many years, it is difficult to see how the policy is not simply seeking to artificially impose an inherent requirement upon her.

Conclusion – valid reason

[393] My findings can be succinctly summarised as follows:

  • the policy, insofar as it mandates that the Applicant be vaccinated against influenza, is reasonable and lawful;
  • the Applicant is required to comply with that policy, either as an express condition of her contract incorporated by reference, or as an implied obligation at common law;
  • the Applicant did not present evidence of a valid medical exemption;
  • vaccination does not constitute an inherent requirement of the Applicant’s role; and
  • the Applicant does not lack capacity to perform her role.

[394] In an attempt to limit a maladroit application of these findings in varied circumstances, I make the following remark: it is beyond the scope of this decision to consider whether the conclusions above extend even as far as the entirety of the Respondent’s business, as the role each employee performs in fulfilling the Respondent’s undertaking may differ. An attempt to extrapolate further and say that mandatory vaccination in different industries could be contemplated on the reasons above would be audacious, if not improvident.

[395] I am satisfied on the facts and evidence provided that the Applicant was capable of being given the instruction to be vaccinated or face the consequences of a failure to comply with a reasonable and lawful direction. As previously prefaced, I am of the mind that this gives rise to a valid reason for dismissal based on the conduct of the Applicant. While the proceedings before me did not centre on this question, the task of this Commission is to obey the command of the Act: “the FWC must take into account… whether there was a valid reason for the dismissal related to the person’s capacity or conduct…” (emphasis added). 94 Accordingly, it is my statutory duty to consider all the relevant grounds before me, even if they are not the focus of the parties. Thankfully, the evidence provided covers adequately the Applicant’s conduct, and allows me to make an informed conclusion.

[396] I am satisfied that while there was no valid reason relating to the capacity of the Applicant, there was a valid reason based on her failure to comply with the reasonable and lawful direction of the Respondent.

(b) whether the Applicant was notified of the reason for dismissal

[397] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment, 95 and in explicit96 and plain and clear terms.97

[398] The Respondent has submitted that the Applicant’s dismissal was due to her capacity and not conduct. The Applicant was notified on numerous occasions that all staff must be vaccinated against the flu unless they have a medical condition which makes it unsafe. As to the reason for her dismissal, the show cause letter of 17 July 2020 makes it clear that the Applicant was notified. The letter is detailed and provides a summary of the matter to that point, including Goodstart’s position and the information leading to that position. The letter clearly asks Ms Barber to respond why her employment should not come to an end on the basis that she failed to meet the inherent requirements of her role.

[399] The Respondent has clearly determined to pursue this case on the grounds of capacity. What is clear is that the Applicant was made abundantly aware that a failure to be vaccinated would bring about the termination of her employment. This fact was explicit and in plain and clear terms. What was unclear to the Applicant was that the failure to be vaccinated would create a valid reason for termination based on her conduct. However, in the language of Re Crozier, the reason for notification is to provide the employee an opportunity to respond, to accord procedural fairness. In the case at hand, on the evidence before me, the legal ground for termination asserted would not have impacted on how the Applicant chose to respond to the allegations. The bulk of her material during the show cause process points to the medical exemption and this response is unaffected by the legal ground for termination.

[400] The Applicant draws upon the letter of 3 August 2020, in which Ms Peachey notifies that the medical exemption has not been substantiated. It is stated that letter was not cleared by the panel and did not reflect the reasons for the decision of the panel. This commentary aside, relevance of this letter is limited; it does not impact on the correspondence of 17 July 2020, nor the final termination letter of 13 August 2020. I am not satisfied this impacts on the notification of the Applicant of the reason for her dismissal.

[401] Finally, the argument of the Applicant that the Respondent failed to properly apply their policy is immaterial to the question asked of whether Ms Barber was notified of the reason for her dismissal.

[402] I am satisfied that the Applicant was notified of the reason for her dismissal in accordance with the Act, and that reason being that she failed to become vaccinated against the influenza virus.

(c) whether the Applicant was given an opportunity to respond to any reason related to the capacity or conduct of the person

[403] In order to be given an opportunity to respond, the employee must be made aware of allegations concerning the employee’s conduct or capacity so as to be able to respond to them and must be given an opportunity to defend themselves. As Justice Moore has stated: 98

“…the opportunity to defend, implies an opportunity that might result in the employer deciding not to terminate the employment if the defence is of substance. An employer may simply go through the motions of giving the employee an opportunity to deal with allegations concerning conduct when, in substance, a firm decision to terminate had already been made which would be adhered to irrespective of anything the employee might say in his or her defence. That… does not constitute an opportunity to defend.”

(emphasis added)

[404] The requirements of s.387(c) of the Act will be satisfied “[w]here the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern…”99

[405] The Full Bench of the Commission has held that s.387(c) of the Act is to be applied in a common sense way to ensure that the Applicant has been treated fairly and does not necessarily require formality in the sense of conducting a meeting with the employee to inform the employee of the reasons for the proposed dismissal or providing the employee with an opportunity to address the employer’s concerns in writing.100

[406] The Applicant contends that the opportunity to respond amounts to the right to a fair hearing. The Applicant relies on Jetstar 101 where it was stated:

“The “opportunity” referred to in s.387(c) must be a fair and adequate opportunity, being one which in a practical commonsense way ensures that the employee is treated fairly.” 102

[407] This authority coincides with the regular understanding of s.387(c) that the opportunity to respond must be fair and adequate.

[408] As outlined in the evidence, the four month consultation process that the Respondent undertook prior to terminating the Applicant was exhaustive. The Applicant provided numerous responses throughout the process and concluded her show case letter stating “I have provided all the information that I feel I can provide to you regarding this matter…”. Had the valid reason for termination been on the grounds of capacity, the question of whether the opportunity was fair and adequate would be simpler.

[409] The Applicant also referred to Tenix Defence Systems v Fearnley as authority for the proposition that the “any reason” in s.387(c) refers to the valid reason for the employee’s dismissal. The Applicant did not have an opportunity to respond to the allegation that in failing to be vaccinated she was in breach of the Respondent’s policy. She responded to the allegation that in failing to be vaccinated she no longer had the capacity to perform her role. While the legal ground is different, the relevant event is the same: the Applicant’s failure to be vaccinated against influenza.

[410] During the consultation period the parties focused on whether Ms Barber had a valid medical exemption. This question would have remained central to both parties regardless of whether the Applicant was dismissed based on her conduct or capacity. Because of this, the Applicant’s defence would have been the same regardless of the legal characterisation of the ground for dismissal. This supports a conclusion that the opportunity provided remained fair and adequate in the circumstances.

[411] A separate assertion was made that due to the wording of the show cause letter the Applicant was not given a fulsome opportunity to respond. The wording of the letter states that “the employee must have a valid excuse against vaccination” and the Applicant concludes that this is broader than merely a medical exemption and can encompass religious or dietary grounds. This contention does not take into account the wording of Goodstart’s policy or even the content of the letter as a whole, which two paragraphs above states:

“As you are aware from numerous Goodstart communications regarding the flu vaccinations, our previous correspondence and our recent meeting, Goodstart has determined that all staff must be vaccinated against the flu unless they have a medical condition that makes it unsafe for them to do so. Goodstart’s reasons for doing so are well documented in those communications with you, but the reasons are summarised as follows…”

[412] To conclude that a single sentence may bring about a conclusion that the Respondent’s policy was materially different, and that the Applicant was not given an opportunity to present her response on these other grounds, is without merit. The Respondent’s policy clearly provides for only a medical exemption and the weight of material before me makes that abundantly clear.

[413] The Applicant provided all the information she felt she could provide, and I am satisfied that Ms Barber was given an opportunity to respond in accordance with s.387(c) of the Act.

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

[414] There is no evidence to suggest that there was an unreasonable refusal by the employer to allow the Applicant to have a support person present. The Applicant was offered the opportunity to utilise a support person at the meeting of 22 June 2020 and had constant access to the employee assistance program.

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[415] The Applicant’s dismissal was not related to unsatisfactory performance. By all accounts she was a strong performer in her various roles with Goodstart.

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and (g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal

[416] Goodstart is a large employer with dedicated human resource and employee relations staff. Where an employer is substantial and has dedicated human resources personnel and access to legal advice, there will likely be no reason for them not to follow fair procedures.103 I am satisfied that the presence of relevant specialists and the size of the enterprise both indicate that the Respondent has no reason not to provide a fair and proper procedure. Based on the information above, I am satisfied that the Respondent has provided a fair and proper procedure.

(h) any other matters that the FWC considers relevant

[417] Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant. The Applicant raised several allegations regarding the conduct of the Respondent with respect to Ms Barber. These included that the Respondent:

  • Made misleading statements to Ms Barber regarding the vaccination requirement constituting a lawful and reasonable direction;
  • Threatened, coerced, or otherwise exerted undue pressure on the Applicant;
  • Singled out the Applicant for special treatment in having her room searched;
  • Treated the Applicant differently to other employees who provided a medical exemption; and
  • Failed to provide documentation in breach of an order to produce.

[418] I will deal with each of these in turn.

[419] As to the misleading statements, this allegation was doomed to be irrelevant. Had the policy not been reasonable and lawful, there would be no valid reason and the dismissal would have been unfair regardless of this relatively minor point. Conversely, where I have found that the vaccination policy was reasonable and lawful, this allegation becomes inconsequential. I do not find this ground to have any relevance.

[420] As to allegations of coercion, these are more properly agitated through a separate claim under the relevant provisions found in Part 3-1 of the Act. However, I am not satisfied that these claims would be persuasive as they appear to have had no purported effect, and they have not impacted in any way how the Applicant responded to the Respondent’s allegations. The Applicant has not pointed to any tangible disadvantage as a result of these comments and therefore it has no bearing on the current proceedings. Regardless, I am not satisfied that any of the comments of the Respondent can properly constitute a threat; they largely reflect a request to comply with the obligations which the Respondent believed the Applicant to have under the policy. 104

[421] The allegation regarding the Applicant being singled out was abandoned in closing submissions. I therefore will not proceed to consider it.

[422] As to the allegation of differential treatment, the Commission must compare “apples with apples.” 105 The Respondent provided a cogent summary of why the allegations of differential treatment must fail, which I adopt:

“Ms Warren-Wright led evidence of sample medical certificates from other employees which gave similarly unclear advice. Ms Warren-Wright also led evidence of medical certificates that gave clear advice, and sample responses from employees which raised conscientious objections. Ms Rowe led evidence of example employees who were also promoted to obtain further medical advice using Ms Warren-Wright’s preprepared form. She then led evidence of example completed forms which Goodstart accepted. Ms Warren-Wright also led evidence of similar examples. None of this evidence was challenged in cross-examination – because it demonstrated that Goodstart its process evenly to all employees, treated ‘apples’ like ‘apples’.”

[423] I also note that the order for production was the subject of its own proceedings prior to the hearing. During that interlocutory hearing it was expressly stated that should there be the need for a supplementary notice for production that those orders could be sought. No such action was taken by the Applicant and therefore it is improper to agitate that point. 106

[424] As to the allegation regarding a failure to comply with the order to produce, I am not satisfied there is any evidence which substantiates this ground. The Respondent provides clear submissions which note their compliance and the discussion between both parties on 14 January 2021 regarding what was to be included in the court book for hearing. Even if this allegation was taken to be correct, it is unclear how it would have any bearing on the unfairness of the dismissal. Further, as above, had there been any issue with compliance this should have been raised prior to closing submissions, so as to allow the matter to be dealt with prior to hearing.

[425] I am not satisfied that any of the allegations above should be given any weight in this matter.

[426] The final point raised by the Applicant is that the personal circumstances of Ms Barber add to the harshness of the dismissal. The Applicant is, as I have previously stated, by all accounts an exemplary and longstanding employee and the outcome is an unfortunate one. While I give consideration to all of the factors put forward by the Applicant, I am not satisfied that they are enough to characterise the dismissal as unfair. It is important to recognise that Ms Barber did knowingly and consciously object, and in doing so was aware of the consequences. The process of termination extended over 4 months and the decision to terminate was not a hasty one.

Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable?

[427] The case before me has two distinct arguments: one surrounding the policy generally which encompasses questions of reasonableness and inherent requirements of the role of Educator, and another looking at the compliance of Goodstart with its policy and whether the Applicant’s dismissal was fair.

[428] The dismissal can be considered fair in all the circumstances when considering the paucity of medical evidence presented by the Applicant and the lengthy process attempted to obtain said medical evidence. The Applicant put forward numerous arguments around the implementation of the policy being flawed, the policy not bending to meet the Applicant’s circumstances, and Respondent not having any medical evidence that it was safe for the Applicant to be vaccinated. Ultimately, these concerns and problems all come back to the inability of the Applicant to provide any material that indicates there was a genuine risk in her being vaccinated. The policy was appropriately adapted and had any evidence been presented that there was a real medical exemption it would have been considered and accepted, as was the case with over one hundred other Goodstart employees. The Respondent made its requirements abundantly clear and the Applicant failed to comply, by choice. Accordingly, her employment was terminated.

[429] Having considered all of the evidence and submissions in the context of the statutory considerations I am not satisfied the dismissal was harsh, unjust or unreasonable.

CONCLUSION

[430] Employer mandated vaccination is a topical question in the current pandemic. As I have said above, this decision relates specifically to the influenza vaccination in a childcare environment, where the risks and concerns are distinct. Goodstart’s enterprise revolves around the care of children, who are by nature more vulnerable and in general have poor hygiene standards. This can make viral spread easier and potentially more dangerous than in other settings.

[431] Goodstart assessed that influenza presented a risk to both children and employees. In seeking to manage their statutory obligations, a policy was drafted that would help mitigate the impact and spread of influenza. Having considered alternative methodologies to limit the impact of influenza, Goodstart adopted a policy of mandatory influenza vaccination.

[432] The vaccination does not provide immunity to all and in some years provides limited protection. While effectiveness may vary each year, the objective is to reduce the impact of the virus upon the population. Any reduction in the transmission and contraction of influenza is positive.

[433] Once adopted, the Respondent implemented a communication strategy to inform employees of the need to be vaccinated. They ensured that they communicated broadly and anticipated that there might be medical grounds for the vaccination to be unsafe. Accordingly, the policy provided for a medical exemption to vaccination.

[434] The exemptions were managed first by the People and Culture team and then reviewed by a panel of senior Goodstart staff of various disciplines. The panel was to review evidence provided and determine whether to accept the exemption, request further information, or move to termination. Several medical responses were accepted, and exemptions were provided. In the case of the Applicant, the medical information provided by her practitioners was not sufficient. Further information was requested but it did not help substantiate a valid medical exemption and ultimately, the Applicant’s employment was terminated.

[435] This is a case where the Employer made a logical and legal analysis of the risks and hazards in the workplace, developed a response and implemented a policy to target that risk.

[436] The policy was a reasonable one and the Applicant chose not to comply. No medical exemption was substantiated and accordingly, the Applicant’s employment came to an end. I am not satisfied that is unfair. The application is dismissed. I order accordingly.