A recent decision of the Fair Work Commission (FWC) in Australia provides timely “food for thought" as New Zealand employers consider whether they can require their employees to be vaccinated against COVID-19.
Barber v Goodstart Early Learning,1 the FWC found that:
Goodstart's policy of mandatory flu vaccinations for its childcare workers was reasonable and lawful,
Ms Barber (a teacher) had not been able to provide sufficient evidence of any basis for a medical exemption to that policy, and
her dismissal (for refusing to be vaccinated in accordance with Goodstart's policy) was therefore not unfair.
Ms Barber's appeal against the Fair Work Ombudsman's original decision (which was also in Goodstart's favour) was therefore dismissed.
This decision has potentially significant implications for Australian employers who are considering mandating that employees receive a COVID-19 vaccination in response to the ongoing pandemic.
The employment law framework in New Zealand is different in several respects to the Australian equivalent. However, many of the principles considered by the FWC are likely to be relevant for a New Zealand court considering whether a mandatory vaccination policy could amount to a “lawful and reasonable instruction".
Ms Barber claimed that she had been unfairly dismissed for refusing to get a flu vaccination in accordance with Goodstart's policy requiring vaccination. At the time, Ms Barber was a lead educator at one of Goodstart's childcare centres.
In April 2020, when COVID-19 was at its peak in Australia, Goodstart consulted with its unions and employees about implementing a policy requiring flu vaccinations for all childcare workers and teachers, unless they could provide evidence of a medical reason not to be vaccinated. Under this policy, flu vaccines would be provided to all employees at Goodstart's expense, and the policy was consistent with medical and government guidance at the time.
Ms Barber objected to the policy as she had led a “chemical free life" and asserted that she suffered an auto-immune disorder that she treated with the support of naturopaths and dietitians. She feared an adverse reaction to any flu vaccination and maintained that she could not be required to be vaccinated under the policy.
Goodstart dismissed Ms Barber for refusing to be vaccinated, having found that the information she supplied was not a sufficient medical reason to not be vaccinated and given its view that a flu vaccination was one of the inherent requirements of her role.
The FWC acknowledged that it was delivering this decision while “curiousity surrounding vaccination is at an unnatural high". It stated that its decision was “relative to the influenza vaccine in a highly particular industry". It said that it felt such a declaration was appropriate “given the climate we find ourselves in".
In short, the FWC held that Ms Barber's dismissal was valid, “by virtue of [her] conduct in failing to comply with the lawful and reasonable direction of [Goodstart] to be vaccinated against influenza".
In deciding that the requirement to receive a flu vaccination was
reasonable, the FWC noted the following factors:
Goodstart had a statutory health and safety duty to ensure, so far as is reasonably practicable, the health and safety of Ms Barber and its other employees. Goodstart also had a duty to ensure the safety of children under the care of its employees. Failure to comply with these duties could result in criminal liability for Goodstart.
Ms Barber also had personal health and safety responsibilities under the health and safety legislation.
There were additional regulatory obligations unique to this particular workplace, in terms of health and hygiene practices with respect to the care of children.
Vaccination is a superior control measure, in conjunction with other control measures, for the risk of flu infection in a childcare environment (where it can be particularly difficult to maintain social distancing or other hygeine practices).
The policy included appropriate exemptions for staff who had a medical condition which made it unsafe for them to obtain the vaccination. Each medical exemption would be considered on a case-by-case basis.
Goodstart conducted thorough consultation with unions and employees about the proposed mandatory vaccination policy before it was implemented.
As to whether the policy was
lawful, the FWC found that the direction to be vaccinated was within the scope of Ms Barber's employment agreement with Goodstart and not otherwise illegal.
This decision has received publicity in Australia where, understandably, employers and employees are considering its application to COVID-19 vaccination policies.
Given that the FWC expressly “ringfenced" the circumstances of the case (i.e., the FWC stated that its findings specifically related to a mandatory
flu vaccination policy in a
childcare environment), it remains to be seen whether the FWC would apply the same principles and findings (for example) in relation to a
COVID-19 vaccination policy in a
In New Zealand, these questions have not yet been tested in relation to mandatory COVID-19 vaccination policies. However, if a similar case arose here, we consider that the courts here would evaluate whether a mandatory vaccination policy was “lawful and reasonable" by taking into account relevant factors including:
the New Zealand Bill of Rights Act 1990, which provides that any person has the right to refuse “medical treatment",
whether the employer had conducted a risk assessment in accordance with the Health and Safety at Work Act 2015, to understand the nature and consequences of being exposed to COVID-19 and whether this was an acceptable risk,
the particular nature of the employer's business and activities, and risks arising from those activities, and
the statutory duty of good faith and test for justification under the Employment Relations Act 2000 (i.e., could a fair and reasonable employer in that employer's circumstances impose such a policy?).
Ultimately, we think that the question would be whether an employer can lawfully and reasonably require that any particular role must be occupied by a vaccinated worker. The answer to that question will be highly fact specific. If an employer terminated employment in reliance on any mandatory vaccination policy (where an employee refused to be vaccinated), we think it is likely that the employer would need to show it had first considered alternatives to that outcome (e.g., redeployment to some other role where the risks associated with COVID-19 were less).
There is no single answer to whether an employer can lawfully and reasonably require certain roles to be held by vaccinated employees. However, there will be certain specific employers and groups of employees where there is a stronger case to support a mandatory vaccination policy than others.
We will continue to monitor developments in this area, and if you have any questions about the matters raised in this articles please get in touch with the contacts listed or your usual
Bell Gully adviser.
This publication is necessarily brief and general in nature. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.