As the highly anticipated roll out of the COVID-19 vaccine slowly spreads across the vast corners of the world, Australian's have debated on whether or not the COVID-19 vaccine should be made mandatory and if it will result in employers forcing their employees to take the vaccine on the basis of public health.
Under the Fair Work Act 2009 (Cth), which governs the relationship between employers and employees, employees are bound by an implied duty to obey the ‘lawful and reasonable’ directions of their employer. This may allow businesses to have the power to compel their staff to get vaccinated in order to satisfy the company’s obligation for the health and safety of all their employees.
Although the Public Health order legislation has not yet been tested in court, recent unfair dismissal cases such as O'Connell v Wesfarmers Kleenheat Gas  and Burns v Sacred Heart Mission Inc.  have resulted in courts upholding employee dismissals, pursuant to s387 of the Fair Work Act, after employees failed to comply with company policies and procedures. In the closest parallel case of Nicole Arnold v Goodstart Early Learning Ltd T/A (2020), a childcare worker in Queensland was sacked for refusing the flu vaccine after she claimed it would disrupt her sensitive auto-immune system. The court upheld the dismissal on the basis that the employer had to meet its duty of care towards the children in its care and an un-vaccinated worker interacting with children would breach that duty of care.
If companies ultimately choose to implement a mandatory vaccination policy into their company policies, employers will be forced to ensure the health and safety of their workers and customers who may be put at risk from their business, through unvaccinated employees.
Although employers will not be able to enforce the vaccination on people with medical exemption getting vaccinated, the ultimate question arises of whether implementing a mandatory vaccination policy for employees will be a reasonable and lawful direction or whether exemptions can be granted based on religious or political beliefs.
*Disclaimer：This is intended as general information only and not to be construed as legal advice. The above information is subject to changes over time. You should always seek professional advice before taking any course of action.*
Associate | Nationally Accredited Mediator
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