Australian employers’ power to direct employees to be vaccinated has received a boost in the Fair Work Commission, which has upheld the firing of a childcare worker who refused a flu vaccine, reports The Guardian. Bou-Jamie Barber, a childcare worker at Goodstart Early Learning since 2006, brought an unfair dismissal case after she was sacked for objecting to getting a flu vaccination when her employer introduced a new policy requiring it in April 2020. Barber claimed a sensitive immune system but could not provide substantive evidence. Goodstart had argued that it was obliged to ensure the health of its workers “so far as reasonably practicable” and to “prevent the spread of infectious disease at its childcare centres”.

Although the commission said the decision “relates specifically to the influenza vaccination in a childcare environment”, the case confirms labour law experts’ belief that an employer’s direction to get a vaccination can be “lawful and reasonable”. The question of directing staff to be vaccinated was under some legal doubt, as the Fair Work Commission case is the first of its kind, and could still be the subject of appeal. Legal experts including Australia-based barrister Ian Neil and Adelaide University professor Andrew Stewart have said that employers’ power in common law to give employees “lawful and reasonable” directions could extend to ordering them to get vaccinated. Recent guidance, published in February 2021, stated that employers cannot legally force employees to get the Covid-19 vaccine.