Application for an unfair dismissal remedy – whether mandatory vaccination policy reasonable and lawful – whether valid medical exemption provided – whether Applicant satisfied inherent requirements of the role – whether valid reason for dismissal based on capacity or conduct – dismissal not unfair – application dismissed.

[1] Ms Bou-Jamie Barber (the Applicant) has made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) in which she seeks an unfair dismissal remedy with respect to her dismissal from her employment with Goodstart Early Learning (Goodstart/the Respondent).

[2] The Applicant was employed by the Respondent as a Lead Educator under the Goodstart Early Learning Enterprise Agreement 2016 (the Agreement). In April 2020, the Respondent introduced an immunisation policy, requiring that all staff must receive the influenza vaccination unless they have a medical condition which makes it unsafe for them to do so.

[3] The Applicant said that she has a sensitive immune system, and she therefore raised her objections to the influenza vaccination with the Respondent. Ultimately, the Respondent determined that the medical certificate provided by the Applicant was not sufficient to support an objection the influenza vaccination, and the Applicant’s employment was terminated on 13 August 2020 for her failure to be vaccinated and meet the inherent requirements of her role.

[4] The Applicant challenged her dismissal on the grounds that it was harsh, unjust or unreasonable.

[5] The matter was heard on 19 January 2020 and 20 January 2020 at the Fair Work Commission (the Commission) in Brisbane. The Applicant was represented by Nathan Buckley, G&B Lawyers and Jim Pearce of Counsel. The Respondent was represented by Murray Proctor, FAC Law and Leigh Howard of Counsel. Mr Pearce was granted permission to appear by video from the Commission’s Sydney office.

[6] Both the Applicant and Respondent sought to be represented. Granting permission to be represented under s.596 requires the satisfaction of two elements. 1 The first pre-requisite: the presence of one of the criteria under s.596(2), does not immediately invoke the right to representation and establishing satisfaction “involves an evaluative judgment akin to the exercise of discretion.”2 Once that first step is satisfied, the second step “involves consideration as to whether in all of the circumstances the discretion should be exercised in favour of the party seeking permission.”3

[7] I exercised my discretion and granted permission pursuant to s.596(2), to both parties, as I was satisfied that the matter would be dealt with more efficiently and effectively, considering the complexity of the matter and the capabilities of the parties. As both parties were represented, it is not be unfair to allow representation.

[8] It is not in dispute that:

• the application was made within time (s.396(b));

•

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Barber v Goodstart Early Learning

Details

AGLC: Barber v Goodstart Early Learning [2021] FWC 2156
Case: [2021] FWC 2156
Decision Date: 20 APRIL 2021

CaseChat Overview and Summary

The case of Barber v Goodstart Early Learning was heard before the Fair Work Commission, with Ms. Barber, an employee, seeking an unfair dismissal remedy against her employer, Goodstart Early Learning. Ms. Barber's employment was terminated following the implementation of a mandatory vaccination policy, which she did not comply with, and her refusal to provide a valid medical exemption. Ms. Barber argued that the policy was unreasonable and unlawful and that her dismissal was unjust. The central issues before the court were whether the mandatory vaccination policy was reasonable and lawful, whether a valid medical exemption was provided, whether Ms. Barber satisfied the inherent requirements of her role, and whether there was a valid reason for dismissal based on capacity or conduct.

The court examined the nature and scope of the mandatory vaccination policy implemented by Goodstart Early Learning. The court found that the policy was reasonable and lawful, as it aligned with public health guidelines and was designed to protect the health and safety of employees, children, and their families. The court also considered the evidence provided by Ms. Barber regarding her medical exemption. The court determined that the exemption was not valid, as it did not meet the required standards for medical exemptions. Furthermore, the court assessed whether Ms. Barber satisfied the inherent requirements of her role, which included maintaining a safe and healthy environment for children. As Ms. Barber did not comply with the mandatory vaccination policy, the court found that she did not meet these requirements. Finally, the court concluded that the dismissal was based on a valid reason, as it was related to Ms. Barber's capacity to perform her role and adhere to the employer's policies.

In light of the findings, the court dismissed Ms. Barber's application for an unfair dismissal remedy. The court determined that Goodstart Early Learning had acted lawfully and reasonably in implementing the mandatory vaccination policy and in terminating Ms. Barber's employment. The court emphasised that maintaining a safe and healthy environment for children was a fundamental aspect of Ms. Barber's role and that compliance with the vaccination policy was an essential requirement. Consequently, the court found that Ms. Barber's dismissal was not unfair. As a result, the application for an unfair dismissal remedy was dismissed, and the decision of Goodstart Early Learning to terminate Ms. Barber's employment was upheld.

Orders