A childcare worker sacked for refusing to have a flu vaccination has lost her unfair dismissal claim.
The Fair Work Commission found the employer had a valid reason to sack the worker because she refused to follow a reasonable and lawful direction.
Employment law experts believe the decision will have implications for the COVID-19 vaccine rollout later this year.
Childcare worker sacked for refusing flu vaccine
The woman worked as an educator for Goodstart Early Learning Centres in Queensland for 15 years.
However, in March last year, she refused to follow the employer’s new immunisation policy.
The policy required all staff to have an influenza vaccination unless unsafe to do so.
The worker refused, claiming she had a “sensitive immune system” in addition to suffering an allergic reaction to a flu shot 11 years earlier.
However, multiple doctors refused to provide the woman with a statement that she should not be vaccinated.
Furthermore, she failed to provide any medical records confirming her previous allergic reaction.
Valid reason for dismissal
Goodstart sacked the woman for a lack of capacity to fulfil the inherent requirements of the job.
However, deputy president Nicholas Lake rejected this argument.
He found the woman could still perform the inherent requirements of the job of an Educator without a flu vaccine.
Instead, he found the requirement to be immunised represented a reasonable and lawful direction, and therefore the worker’s refusal gave the employer a valid reason for dismissal.
The worker eventually conceded in the Commission that her refusal to get the flu jab was a “conscientious objection”.
As a result, Mr Lake dismissed her unfair dismissal claim.
You can’t self diagnose
Industrial advocate Miles Heffernan from Dismissals ‘R’ Us says the childcare worker’s failure to produce medical evidence brought her unstuck.
“Had the person produced some evidence that she was at risk of a flu vaccine, she was likely to have kept her job,” he said.
“What she had stated was a self-diagnosis and none of us can self-diagnose.”
Deputy president Lake made it clear the decision applied to this specific case involving a childcare centre and influenza vaccinations.
However, Mr Heffernan believes it will have ramifications as the COVID-19 vaccine becomes widely available.
“This decision will give pause to anybody who is vaccine hesitant with a COVID vaccine.
“The indication from the Commission is that if the employer makes a policy that is well founded and rational, it will be up to the worker to explain why they ought not follow it.
“That will require expert medical evidence, not just that you don’t want to take the vaccine, but that the vaccine will have an adverse effect on you.
“So if there is no clinician to say that, I expect your employer will be able to force your hand to get a COVID vaccine.”
Contact our team at Dismissals ‘R’ Us on
To connect with us, please follow us on