In rejecting an application for an extension of time to lodge an unfair dismissal claim, Deputy President Asbury of the Fair Work Commission found it arguable that a childcare employer’s policy requiring mandatory flu vaccinations was lawful and reasonable in the context of its operations which principally involve the care of children, including children who are too young to be vaccinated or unable to be vaccinated for a valid health reason.

The employer issued a direction to all employees requiring them to be vaccinated (free of charge) by 29 May 2020. The direction provided a process by which employees with medical reason for not being vaccinated could seek an exemption. The employee objected to being vaccinated on grounds which did not include a medical reason and was dismissed on the basis that she refused to comply with a lawful and reasonable direction.

In considering the merits of the unfair dismissal application, the Deputy President found that prima facie, the employer’s policy was necessary to ensure that it meets its duty of care with respect to the children in its care, while balancing the needs of its employees who may have reasonable grounds to refuse to be vaccinated involving the circumstances of their health and/or medical conditions. The Deputy President found it was also arguable that the employee had unreasonably refused to comply with a lawful and reasonable direction which was necessary for her to comply with the inherent requirements of her position, which involved the provision of care to young children and infants.

Ultimately, the Deputy President was not satisfied there were exceptional circumstances to warrant an extension of time and the unfair dismissal application was dismissed.

Had an extension of time been granted and the application allowed to proceed however, it is possible that the Deputy President would have found that in the circumstances, the employee was validly dismissed for failing to follow a lawful and reasonable direction. These comments by a senior member of the Fair Work Commission suggest that anti-vaxxers working in organisations that principally involve the care of vulnerable people (particularly children), may be at risk of termination if they refuse to be vaccinated.

The decision can be read here.


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