An Australian childcare worker who had a “conscientious objection” to receiving the flu vaccine has lost her unfair dismissal appeal.
The worker Bou-Jamie Barber, who had worked at Goodstart Early Learning since 2006, brought her unfair dismissal case to the Fair Work Commission (FWC) after she refused to get a flu vaccine in April 2020.
She had claimed a “sensitive immune system” and previous negative experiences with the flu vaccine, but the commission said her evidence provided of this was “vague”.
FWC deputy president Nicholas Lake said the childcare sector is one in which “safety is of paramount importance”, and as such it was “logical and necessary” for centres to require vaccinations.
“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,” Lake said.
“The childcare industry faces unique organisational challenges which make other controls less effective, or impracticable.”
However, he said that while Goodstart had a valid reason for dismissal, the decision shouldn’t be applied to other industries.
“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.”
According to Safe Work Australia, bosses have a responsibility to eliminate or minimise the risk of COVID-19 as much as possible.
However, it also said it’s “unlikely” that mandatory vaccination programs will be practicable.
“Ultimately whether you should require your workers to be vaccinated will depend on the particular circumstances at the time you are undertaking your risk assessment,” Safe Work said.
The FWC’s decision comes amid another high profile dismissal case involving a nurse who refused to take a flu vaccine.
The former Ozcare nurse, Maria Glover, said she had had an anaphylactic reaction from a previous flu vaccine and refused to accept one during the COVID-19 pandemic, leading to her dismissal.
She said that while Ozcare had a responsibility to its clients, it also had a duty of care for its staff.
Commissioner for Fair Work Jennifer Hunt is expected to hand down her decision on the case in April.
Commenting on the Ozcare case, Clifford Gouldson Lawyers said it will be one to watch closely.
“We anticipate that this case will set an important precedent for employers considering the implications of a readily available coronavirus vaccine within Australia,” they said.
“We will be closely following its development and provide updates, as necessary.”