Fair Work dismisses educators claim for unfair dismissal over rejected vaccination

Fair Work dismisses educators claim for unfair dismissal over rejected vaccination

by Freya Lucas

April 23, 2021

The Fair Work Commission has rejected an early childhood educator’s claim for unfair dismissal, which she bought against her former employer, Goodstart Early Learning, following the loss of her job over her refusal to get a flu vaccination.


Educator Bou-Jamie Barber lodged a conscientious objection with her employer when directed to get a flu vaccination, saying that she lives a chemical free life, and had concerns about the side effects of the vaccination, and that she treated her autoimmune conditions with the help of dieticians and naturopaths. 


Goodstart introduced a requirement for educators to have a flu vaccination at the height of the COVID-19 pandemic, in April 2020, consulting with unions and communicating the decision with staff in advance, as well as providing free vaccines. 


When Ms Barber refused, her employment was terminated, after which time she lodged a claim with the Commission for unfair dismissal. 


The Fair Work Commission ultimately agreed with Goodstart’s perspective, with many commentators saying the decision has “major implications for businesses’ power to demand employees get coronavirus jabs.”


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 having a “sensitive” immune system, medical evidence did not show she had a valid exemption.


Current industrial law allows employers to issue “lawful and reasonable” directions to staff. Speaking to The Sydney Morning Herald, Barrister Ian Neil SC, an industrial relations law expert, said this case represents “the first considered decision on the subject” and suggested employers with vulnerable workforces, including early childhood education and care (ECEC) could mandate a coronavirus vaccine.


In the Goodstart case, Fair Work found that the vaccine directive was both reasonable and lawful because of children’s vulnerability to infection, the nature of the close contact ECEC educators have with children, and the inability of some children to have a vaccine themselves 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 likely extend beyond ECEC to other sectors and industries such as aged care.


To read the Sydney Morning Herald coverage of this story, please see here