A childcare worker who was sacked for refusing to get vaccinated because she had a “conscientious objection” has lost a legal claim to get her job back.
The Fair Work Commission backed major childcare provider Goodstart Early Learning, which required its staff to get a flu shot, in a decision with major implications for businesses’ power to demand employees get coronavirus jabs.
The industrial commission dismissed a childcare worker’s claim that she had been unfairly fired for refusing a vaccine.Credit:Louie Douvis
Bou-Jamie Barber claimed she had been unfairly fired when she was sacked from the childcare chain in August last year after she refused to get a flu vaccination.
Fair Work Commission deputy president Nicholas Lake dismissed Ms Barber’s case, finding that despite her claim to have suffered migraines after a previous flu shot and have a “sensitive” immune system, medical evidence did not show she had a valid exemption.
Industrial law allows employers to issue lawful and reasonable directions to staff, including on issues such as a vaccine. This has been a hot topic among businesses, which are uncertain whether it is “lawful and reasonable” to compel their employees to get the COVID-19 vaccine.
Barrister Ian Neil SC, a labour law expert who was not involved in the Barber case, said it was the first considered decision on the subject and suggested employers with vulnerable workforces could mandate a coronavirus vaccine.
Deputy president Lake found it was reasonable to require childcare staff to have a vaccine because of children’s risk of influenza, close contact, and the inability of some to have a vaccine because of their age.
Mr Neil said it “is difficult to see why the same reasoning wouldn’t apply to COVID vaccinations”, adding it would extend beyond childcare to other industries such as aged care.
The Fair Work Ombudsman, the federal workplace regulator, has told employers to be cautious about mandating a coronavirus vaccine.
“In the current circumstances, the overwhelming majority of employers should assume that they can’t require their employees to be vaccinated against coronavirus,” the ombudsman’s advice reads.
However, it notes the situation will depend on each case, the level of risk of infection, how else it can be controlled, and interactions with public health orders. The ombudsman also says most employers may be able to require staff to be vaccinated when choosing to hire them.
When she was fired, Ms Barber was working as a lead educator for Goodstart in Gladstone, Queensland, where she had been an employee since 2006.
Goodstart introduced its vaccine policy in April 2020, when the coronavirus was at its peak and medical authorities were telling childcare centres to make sure staff and children were vaccinated.
It consulted with unions, communicated its decision to staff in advance and provided free vaccines.
But Ms Barber, who said she led a “chemical-free life” and had treated autoimmune conditions with the help of dieticians and naturopaths, refused. She repeatedly wrote to Goodstart outlining her concerns.
“I am only refusing because I am terrified of suffering an adverse reaction from it including the risk of getting another autoimmune disease,” she said.
However, Andrew Lingwood, a doctor who gave evidence to the commission said people with chronic conditions should get vaccinated because they may otherwise be more susceptible to influenza.
“It is my professional medical opinion there is no evidence of a medical barrier to Ms Barber receiving an influenza vaccination,” Dr Lingwood said.
Deputy president Lake ultimately accepted that evidence, holding Goodstart’s program was a reasonable response designed to protect its staff, charges, and the broader community.
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