Recently passed by the Fair Work Commission a disturbing decision in an unfair eviction case.
The case involved Ms Ms Bou-Jamie Barber, a Queensland early childhood teacher who was fired by Goodstart Early Learning (Goodstart) for failing to comply with the organization’s new mandatory influenza vaccination policy, which only provides for in an exemption in circumstances where it is practicable. unsafe for staff to receive vaccinations (medical contraindications).
Goodstart determined that Ms Barber’s medical certificates were not sufficient to show that vaccination was not safe for her, and she was fired on 13 August 2020.
Ms. Barber has worked at Goodstart since 2006, for at least 14 years. At least 16 employees were fired as a result of the policy, and an additional 7 left (paragraph 213 of the judgment).
Summarize the decision
The Commission found that, although flu vaccination was not a ‘natural requirement’ in Ms Barber’s role at Goodstart, the direction however, was ‘reasonable and lawful’ in the circumstances.
 The right of an employer to supervise their employee is indicated by common law, which stems from a master’s ability to control their staff. Employees have a duty of obedience that requires an employee to comply with any lawful and reasonable authority provided by a superior, (28) or otherwise in the policies and procedures of an employer. (29) Violation of the indicated duty constitutes a breach of contract; this misconduct can provide the basis for a valid reason for expulsion.
 To be lawful, a direction does not require a positive statement of law endorsing an action; a direction may be classified in accordance with the law given that it is not included as illegal and “Falling reasonably within the scope of employee service”. (31)
 The question of what is reasonable is a question of authenticity and balance; it is not material that can have a “better” direction; a judgment of what is reasonable should be examined against factors related to the employment relationship.
The Commission’s findings include:
- Ms Barber’s employment contract in 2014 clearly mandated her to adhere to policies and procedures that may be enforced and vary from time to time.
- The National Health and Medical Research Council (NH & MRC) and several state health departments recommend influenza vaccination for people working with children, but these recommendations promote vaccination, not requiring vaccination that ‘ mandatory ‘. However, these recommendations may still inform a reasonable employer that mandatory vaccination is appropriate.
- Goodstart has ethical duties under Occupational Health and Safety Law, to ensure, as far as reasonably practicable, the health and safety of employees and to ensure that children under its care are not put at risk from the work performed by care workers. child.
- Ms. Barber has statutory duties, under Occupational Health and Safety Law, to take reasonable care for his own safety, to take reasonable care to ensure his acts or omissions do not endanger the health and safety of other persons, and to comply with and cooperate with reasonable Goodstart instructions, policies and procedures relating to health and safety in the workplace.
- Goodstart has ethical duties under National Education and Care Service Regulations, to manage infectious diseases (Regulation 88), and there are policies and procedures that address infectious disease (Regulation 168), but these only arise “in the event of an infectious disease in an educational service and care “. Even if it doesn’t have to be legislative for Goodstart to try to curb the risk of the flu before it happens, it’s unreasonable to do so, and remain ethical.
- Employers may be responsible for transmitting infectious diseases to the workplace.
- Regardless of the level of effectiveness of the flu vaccine, it directly reduces the risk of infection to the parties that Goodstart has a duty to take care of, whether child or staff, and even in the shortest effective, a reasonable owners may still use a mandatory vaccination policy.
- Alternative methods of reducing flu risks, such as social isolation and general hygiene measures are not practical in the child care environment compared to many other industries.
- Ms Barber failed to provide relevant medical evidence as to why an exemption from the mandatory vaccination policy should be granted.
- The mandatory vaccination policy is in accordance with the law, and it does not cost the attack and battery.
Goodstart’s mandatory vaccination policy was also endorsed by three treacherous trade unions: the United Workers Union, the Independent Education Union of Australia, and the Australian Education Union, however, the Commission claimed to have little weight. of this endorsement.
Even if the decision only applies to this specific case, it may be adaptable for future cases.
We understand that Ms Barber did not appeal the decision.
The decision is remarkable for the fact that there is no law mandate for child care workers to receive flu vaccinations.
Goodstart has built a detailed and imaginative vision of their legal obligations to prevent flu through vaccination. To further strengthen their argument, they relied on the weak and opportunist recommendations found in Australian Immunization Handbook, a 2020 statement of the AHPPC, and a Queensland Health Statement, which are all formed of not selected doctors and public servants, and the Commission accepted them as justified.
We know that toxic mandatory vaccination activists , for many years, has been lobbying Goodstart, and other child care providers, to enforce mandatory immunization policies for employees, so it’s no surprise to us that Goodstart has walked the this way.
The Queensland Public Health Safety Act
Measures that are “reasonable” for Goodstart to be used as a Queensland flu prevention policy are outlined in the provisions of Public Health Act 2005 Qld (PH Act) and Public Health Regulations 2018 Qld (PH Regulations), which have not been considered by the Commission.
Influenza is a matter of public health, not a matter of health and safety in the workplace, or a matter of child safety.
The provisions of the PH Act and the PH Regulations outline what elected members of the Queensland Parliament, on behalf of the majority, should be protected against the risk posed by influenza to care services. child, adapted to evaluate advice from public health. expert.
A infographic dated March 2020, and published on the website of the Queensland Department of Health provides for recommended minimum periods excluding for infectious conditions (including influenza), to assist medical practitioners, schools, pre-schools and child care centers to meet the requirements of the PH Act.
However, even those people who come in contact with someone with an infection should not be included, including children and staff, and child care employees should not be vaccinated.
In addition, with respect to children, Goodstart has the option to refuse to enroll, or cancel the enrollment of undocumented children, pursuant to sections 160B and 160C of the PH Act respectively, even if the union does not apply the this option in its policy in Queensland.
This means that the organization’s policy in Queensland does not require children to receive influenza vaccination, or any other vaccination recommended for children in the Australian Immunization Handbook (see section 160A (a) of the PH Act) .
For the reasons above, it is difficult to see the organization’s need for employees to receive flu vaccinations (excluding those with medical contraindications) to be anything other than arbitrary and illogical.
The mandatory direction of influenza vaccination by Goodstart would be substantially beyond the Public Health Act and Regulations, and completely unreasonable.
Grinham v Tabro Meats Pty Ltd.  VSC 491
The Commission incorrectly applied Grinham, in paragraph 321, to find that “Employers may be responsible for transmitting infectious diseases to the workplace, providing impetus for the Respondent to request vaccination”.
That case concerned an employee who contracted Q Fever in a specific class of workplace, which is an abattoir, where the risk of being exposed to Q Fever must necessarily arise from work. That is, it is an occupational risk to be in that kind of workplace. The same cannot be said for the flu in relation to child care facilities.
Unlike influenza, Q Fever is an occupational disease prescribed under section 699 of the WHS Regulation (enacted under section 36 of the WHS Act).
Because of the practical difficulties in identifying the origin of a flu infection in a child care facility (as opposed to identifying the origin of Q Fever infection in an abattoir), it is a it is not a good argument that Goodstart could be held responsible for transmitting the flu from an employee to another party in the child care facility, and such a dispute should not have been given any weight to the Commission in determining whether the mandatory Goodstart vaccination.
To accept such a dispute, means that Goodstart may also be liable for transmission of the flu from enrolled children (who do not have to receive flu vaccinations to go to Goodstart facilities in Queensland) to other parties. , a ridiculous suggestion.
This judgment is not the last word on the subject. We believe there are sufficient conclusive findings of the decision, and shortcomings, to challenge any future unfair dismissal in accordance with mandatory vaccination policies imposed by employers (as opposed to state).
This is just the beginning.
All information contained herein is, to the knowledge of the author, correct as of its writing, but please note, this information is not intended to be legal advice.