Lawful and Reasonable Direction: Can staff be forced to have the COVID vaccination?
Australia’s COVID-19 vaccine rollout has begun, with Victoria planning to administer the first doses of the vaccine in March 2021. The Commonwealth Government’s goal of offering everybody in Australia a vaccination by the end of October 2021 raises an important ethical and legal issue for Catholic primary school principals to navigate during these turbulent times; that is, can staff members be forced to have the vaccination?
What is a lawful and reasonable direction?
All employment contracts contain an implied Common Law term which requires the employee to obey the lawful and reasonable directions of the employer. The implied duty of obedience imposed on all employees is subject to the express terms of the employment contract and any applicable workplace instrument (e.g. modern award or enterprise agreement).
A ‘lawful’ direction is one that falls within the scope of the employment contract and does not fall foul of the law. An employee has the right to refuse to carry out any directions that are unlawful, including:
- Directions to engage in unlawful behaviour;
- Directions to engage in dangerous behaviour that would create a risk to health and safety;
- Directions to engage in conduct that is contrary to the employment contract and/or applicable workplace instruments.
A ‘reasonable’ direction is one that is sensible, logical and/or rational having regard to the individual circumstances of each case. There is no obligation on the employer to demonstrate that the direction was preferable or the most appropriate course of action or in the best interests of the parties.
Any breach of the implied term will constitute breach of contract for which the employee may face disciplinary action, including summary dismissal if the breach amounts to ‘serious misconduct’.
The question that arises in the context of the current global pandemic is whether employers have the power to force employees to take the vaccine; that is, is directing an employee to have the vaccine a lawful and reasonable direction?
One relevant consideration would be an employer’s obligation under the Occupational Health and Safety Act 2004 (Vic) to provide and maintain a working environment that is safe and without risk to health. This obligations includes, amongst other things, an obligation for employers to reduce or eliminate as far as practicable, risks to the health and safety of employees.
It could be argued that an employer’s work health and safety responsibilities extend to requiring staff vaccinations, especially as the country continues to struggle with containing outbreaks in workplaces. Importantly, laws were passed in Victoria in 2020 which made vaccinations compulsory for healthcare workers with patient contact.
Whilst no case law exists on this novel issue, a recent Fair Work Commission case provides an indication on the direction this issue may take in Australia. The matter of Kieran Knight v One Key Resources (Mining) Pty Ltd T/A One Key Resources  FWC 3324 involved an unfair dismissal application by employee who was terminated for failing to follow a lawful and reasonable direction to complete a COVID-19 survey regarding travel information. The Fair Work Commission found that the employer’s direction was lawful and reasonable because the information requested in the survey was not sensitive or protected by privacy laws and the survey was for the purpose of attempting to fulfil its obligations under workplace health and safety laws. As such, the employee’s refusal to complete the survey constituted a valid reason for the dismissal.
Whether an employer has the power to compel their employers to get vaccinated against COVID-19 has not been clearly stated. In the absence of a government or Health Department directive, employers will generally not have an unfettered right to require their employees to be vaccinated against COVID-19 but this space will likely evolve rapidly over the coming months.
Despite this, the potential consequences are grave for an employer who gets it wrong. It is hoped that the Commonwealth Government will legislate to provide clear direction on this issue. In the meantime, employers must be aware of the possible legal and moral ramifications of directing mandatory vaccinations in their workplace and of taking disciplinary action and/or dismissing any employees who fail to follow such direction. What is the situation if the employee refuses for medical reasons? What is the situation if the employee refuses for religious reasons? What if the employee refuses purely on the basis of anti-vaccination beliefs? What do you do if a staff member refuses to return to work out of fear of contracting COVID-19 from unvaccinated employees?
Employers may be exposed to unfair dismissal claims under the Fair Work Act 2009 (Cth) (on the basis that any termination was harsh, unjust or unreasonable). Furthermore, given the potential human rights concerns at play, employers may be exposed to general protections claims under the same regime (on the basis that any termination or other adverse action was taken for discriminatory reasons such as religion or political opinion) or a discrimination complaint under the Equal Opportunity Act 2010 (Vic).
How can Brennan Law Partners assist?
We recommend that you get proactive on this issue whilst waiting for further guidance from the relevant authorities, including governments and educational institutions. It would be prudent to consult with staff, and have decisions made and plans in place so that you are appropriately positioned when the vaccine rollout commences.
If you would like to know more about how these issues are likely to effect your school or would like our assistance to draft relevant correspondence or policies, contact us to discuss.
If you have any questions regarding any information in this BLP Brief, we welcome you to contact us at any time.