Reference: Unfair Dismissal Australia – by Gary Pinchen
The Australian Government’s nationwide rollout of the COVID-19 vaccination has been the topic of considerable discussion and debate. The COVID-19 vaccines are marketed as the most effective way to protect the community against this deadly infection and necessary to slow down the spread.[1] Consequently, state governments have issued public health orders (PHOs) and directions, mandating COVID-19 vaccination as a condition of employment for particular high-risk industries. Employers are now grappling with the question of whether or not they can legally implement mandating COVID vaccine in the workplace and in wider industries.
Employers are now asking themselves whether they have the legal right to direct employees to receive COVID-19 vaccination as a condition of employment in an inherently shared workplace with other employees, clients and members of the public. In analysing the existence of this right, it is appropriate to consider whether a government mandate requires an employee to be vaccinated as a condition of their employment; whether vaccination is required to fulfil the inherent requirements of the job; whether it would be lawful and reasonable to direct employees to be vaccinated and whether this breaches any discrimination laws.
Vaccination Policies in Workplaces – Methods of Implementing Mandatory COVID-19
Inherent Requirement of the Job
The concept of “capacity” goes beyond the physical capacity or skill of the employee, and encompasses situations where employees do not have or maintain the necessary licence, certification, qualification, approval or accreditation to lawfully perform the inherent requirements of their job.[2]
In X v The Commonwealth,[3] the High Court held that inherent requirements of a job means the essential elements of the particular employment,[4] which are not confined to the physical ability or skill of the employee to perform the “characteristic” task or skill of the employment.[5] In most employment situations, the inherent requirements of the employment will also require the employee to be able to work in a way that does not pose a risk to the health or safety of fellow employees.[6]
No Government-Issued Vaccination Mandate –Not Inherent Requirement
In Fair work Commission case of Barber v Goodstart Early Learning,[7] a childcare and early learning centre introduced an immunization 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. This policy was introduced and implemented without a government-issued mandate, but based on the employer’s perceived legal obligations to ensure the safety and welfare of employees and children.
Although Deputy President Lake makes it very clear that this case relates specifically to the influenza vaccination in a childcare environment, where the risks and concerns are distinct,[8] similar reasoning can be applied in examining whether the COVID-19 vaccine can be considered an inherent requirement of a job.
Deputy President Lake held that determining what classifies as an inherent requirement must be done in a way that takes into account surrounding context and all other relevant factors, including the nature of the business of which the Respondent engages.[9] It is well established that a policy cannot artificially create an inherent requirement.[10] Mandating vaccinations, however reasonable and lawful the policy is, does not mean that vaccination is immediately an inherent requirement.[11] Not every policy of an employer will enumerate an inherent requirement of a role, but so long as the direction is reasonable and lawful it will be one that an employee must comply with.[12]
Even if being vaccinated fulfils the employer’s statutory obligations, it does not suggest that vaccination itself is essential as being vaccinated may not in its nature impact how the employee performed their role.[13] It is pertinent to examine the tasks performed, as the capacity to perform those tasks inform what is an inherent requirement.[14]
Despite these assertions, Deputy President Lake ultimately held that while there was no valid reason relating to the capacity of the employee in this case, there was a valid reason for termination based on her failure to comply with the reasonable and lawful direction of her employer.[15] Lawful and reasonable directions are discussed in detail below.
Government Issued Mandates – Condition of Work
In order to manage the COVID-19 outbreak in Australia, states and territories have declared a “state of emergency”, which provides the state or territory’s Chief Health Officer with emergency powers to issue directions and set requirements to eliminate or reduce the risk to public health. Consequently, these government-issued mandates dictate that as a condition of work, all relevant employees will not be allowed to present for work or enter their employer’s premises without a COVID-19 vaccination.
This raises the question of whether being vaccinated against COVID-19 affects an employee’s capacity or ability to fulfil the inherent requirements of the job and in their absence, how can an employer mandate COVID-19 vaccination in their workplaces.
Government Issued Vaccination Mandate – Vaccination an Inherent Requirement
If an employee is not vaccinated against COVID-19 in contravention of the government-issued mandates, it is more likely that this will impact the employee’s ability to fulfil the inherent requirements of the job. This was explored in the case of Kimber with the influenza vaccine.[16]
In the first instance, Commissioner McKenna held that the employee was unable to perform the inherent requirements of her job as she was not allowed onto the premises without an up-to-date flu shot.[17] It was held that if an employee cannot enter the employer’s premises, due to the vaccination requirements under government-issued mandates, the employee can not perform the inherent requirements of the job.[18] Thus, there is a valid capacity-related reason for the employee’s dismissal.[19] This decision was appealed to the Full Bench, where the majority upheld the original decision, reiterating that because the unvaccinated employee was unable to enter the employer’s premises, this plainly made the continuation of her employment untenable.[20]
In dissent, Deputy President Dean held that the employee’s inability to fulfil the inherent requirements of the role was not open for Commissioner McKenna to find, given there was an alleged medical exemption.[21] Due to the alleged medical exemption, the employer could also not direct the employee to be vaccinated as this would not have been a lawful and reasonable direction, but instead contrary to her medical advice.[22]
This argument was not accepted by the majority as they held that the evidence before Commissioner McKenna conclusively demonstrated that the condition is not a medical contraindication for the influenza vaccine which could satisfy the condition for an exemption.[23] Furthermore, Commissioner McKenna was entitled to accept and prefer the evidence of the Professor Wakefield as it would have been legally unreasonable not to.[24]
Instead, the Full Bench held that in circumstances where the employee was given ample opportunity by an employer to get vaccinated or demonstrate a valid medical exemption, no other consideration could operate to render the dismissal unfair.[25] The Full Bench ultimately held that the public interest weighed entirely against the grant of permission to appeal and the majority of the Full Bench did intend, in the circumstances of the current pandemic, to give any encouragement to a spurious objection to a lawful workplace vaccination requirement.[26]
Deputy President Dean’s dissenting judgement clearly expressed her opposition to mandatory COVID-19 vaccinations. Deputy President Dean held it should be abundantly clear that there are other, far less restrictive and less intrusive ways in which we can ensure public health and appropriately address the risk of COVID without resorting to the extreme measures currently in place.[27] Despite her assertion, it is readily accepted that the choice of the employer need not be the most reasonable decision, but simply fall within the realm of reasonableness.[28] Furthermore, it is readily accepted that the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[29]
Deputy President Dean contends that many employers are declaring they will mandate COVID vaccine in the workplace, and PHOs are being made by State Governments, in circumstances where there is no justification for doing so.[30] The Deputy President asserts that making blanket rules in PHOs deny people their fundamental right to work or operate to “lock them out of society”, which denies them freedoms which are a fundamental and essential part of any democracy, concepts of reasonableness, necessity and proportionality arise.[31] The bulk of the dissenting judgement focuses on the validity and necessity of the PHOs but the Fair Work Decision is not the jurisdiction to decide this.
Validity of Public Health Orders and Government-Issued Mandates – Can Employers Rely On Them?
The validity of the government-issued mandates, namely the PHOs, have been challenged in numerous courts across Australia. Whilst there are a number of proceedings still in progress, the Supreme Court of New South Wales upheld the governments power to mandate vaccinations and criticised Deputy President Dean’s dissenting judgement.
Although the Fair Work Commission and Supreme Court are different jurisdictions, Justice Robert Beech-Jones was able to criticise Deputy President Dean’s dissenting judgement due to the Plaintiffs’ heavy reliance on the reasoning. Justice Robert Beech-Jones acknowledged that Deputy President Dean’s assertions about the efficacy and safety of COVID-19 vaccines and other aspects of the public health response to COVID-19, were not relevant for the case at hand before the Supreme Court. However, his Honour slammed Deputy President Dean’s “clarion calls” which implore “all Australians” to do things such as “vigorously oppose the introduction of a system or medical apartheid and segregation”,[32] and “vigorously oppose the ongoing censorship of any views that question the current policies regarding COVID”.[33] His Honour asserted that political pamphlets have their place but doubts that the Fair Work Commission is one of them[34] nor is it the authority for legal propositions.[35] As it currently stands, the PHOs are lawful and valid, meaning employers can rely on them and impose mandatory vaccination policies accordingly.
Although Justice Robert Beech-Jones and the Majority of the Full Bench disagreed and criticised the bulk of her judgement, Deputy President Dean’s dissenting view on the issue of dismissal was based on her belief that there was no legal impediment to the employee entering the workplace as she had a valid exemption. It is abundantly clear that obtaining a medical exemption for the COVID-19 vaccine requires greater medical evidence than the flu vaccine, particularly in industries with government-issued mandates. Notwithstanding, if an employee manages to obtain a valid medical exemption, then an employer must be mindful about potentially breaching anti-discrimination laws by requiring or directing the employee to be vaccinated.
Lawful and Reasonable Direction
Although government-issued mandates increase the likelihood of vaccination being an inherent requirement of the job, they are not imperative for implementing mandatory vaccination policies. In the absence of a government-issued mandate and despite whether a COVID-19 vaccination is considered to be an “inherent requirement” of a job, an employer may direct an employee to be vaccinated, if it is considered a lawful and reasonable directive.
The right of an employer to direct their employee is implied at common law, stemming from the ability of an employer to exert control over their employees.[36] Employees have a duty of obedience which requires an employee to comply with any lawful and reasonable direction given by a superior,[37] or otherwise contained in an employer’s policies and procedures.[38] A breach of this implied duty constitutes a breach of contract; this misconduct can provide the basis of a valid reason for dismissal.[39]
Establishing Whether a Direction is “Lawful”
If there is a government-issued mandate in place, an employer can direct an employee to be vaccinated against COVID-19 and this direction has been held not only lawful, but also reasonable.[40] Thus, a government-issued mandate automatically renders a vaccination directive lawful and reasonable and provides the employer with the strongest legal right to make such a direction.
Nevertheless, for a direction to be deemed lawful, there is no requirement for a positive statement of law endorsing an action.[41] If a direction relates to the subject matter of the employment and involves no illegality, the obligation of the employee to obey it depends at common law upon its being reasonable.[42] As per Glover,[43] it is not unlawful for an employer to direct an employee to be vaccinated against the flu or face termination if they refuse.[44]
Consequently, a vaccination directive is likely to be deemed lawful but in the absence of a government-issued mandate, the employer will need to demonstrate it is reasonable in the circumstances.
Increasing the Reasonableness of COVID Mandatory Vaccination Policies
Generally, the question of whether a direction is “reasonable”, is a question of fact and balance.[45] Employers face potential liability arising from their common law duty of care to their employees and to members of the public.[46] Employers may be subject to contractual obligations that require them to conduct their business in a particular way or to meet particular standards or observe particular constraints.[47] For these reasons it is entirely reasonable, and often necessary, for employers to put in place policies, with which employees must comply, to facilitate the employer’s compliance with its obligations and duties.[48]
What is reasonable will depend upon all the circumstances relevant to the employment relationship[49] and it is insignificant whether a better or different policy may have been more appropriate.[50] Thus, what can be considered reasonable will likely differ for each individual employer and it is not the role of external bodies, such as the Fair Work Commission, to interfere with the right of an employer to manager their own business.[51] The choice of the employer need not be the most reasonable decision, but simply fall within the realm of reasonableness.[52]
In order to increase the reasonableness of directing an employee to be vaccinated against COVID-19, an employer must consider: the extent of community transmission of COVID-19 in the location where the employer direction is to be given, including the risk of transmission of the Delta variant among employees, customers and other members of the community; the extent to which their employees need to work in public facing roles or in high-risk industries; whether the employees are in close-contact with the vulnerable population; whether there is any public health advice or government recommendations and whether alternative measures are sufficient, such as masks, social distancing etc., which would satisfy the employer’s health and safety obligations .[53]
The relevant factors for consideration in the high-risk industry of aged-care, were explored in Glover.[54] Commissioner Hunt had regard to the high-risk nature of aged care, the high risk of potentially contracting influenza and COVID-19 and the employer’s legal obligation to protect the safety of their employees or clients in order to decrease their liability for any breaches of their duty of care.[55] Commission Hunt held that the employer’s mandatory influenza vaccination policy for all of its client-facing employees, without allowing any exemption, was lawful and reasonable.[56] Thus, if an employer has made a logical and legal analysis of the risks and hazards in the workplace, developed a response and implemented a policy to target that risk, a mandatory COVID-19 vaccination policy will be lawful and reasonable.[57]
In Arnold v Goodstart Early Learning Limited,[58] Deputy President Ashbury held that
“the Respondent’s policy requiring mandatory vaccination is 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. Prima facie the Respondent’s policy is 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. It is also equally arguable that the Applicant has unreasonably refused to comply with a lawful and reasonable direction which is necessary for her to comply with the inherent requirements of her position, which involves the provision of care to young children and infants”.[59]
DP Ashbury
In regards to demonstrating reasonableness under an employer’s health and safety obligations, it is well-known that employer’s have a heavily codified duty to provide a safe place of work. Occupational Health & Safety (OHS) and Work Health & Safety (WHS) laws impose obligations on employers to provide and maintain a working environment that is safe and free of risks to health, so far as is reasonably practicable. This includes a duty to workers or employees but also other people in the workplace, such as clients and members of the public. Thus, employers are forced to consider and consult on a mandatory COVID-19 vaccinations policy by considering the effectiveness of vaccines in reducing the risk of transmission or serious illness, including the Delta variant, when fulfilling their health and safety obligations.[60]
In Barber v Goodstart Early Learning,[61]it was held that mandatory flu vaccinations are a good practice in attempting to prevent spread of infection and minimise risk before it occurs.[62] Further, it has been held that that employers can be liable for the transmission of infectious diseases in the workplace, which would provide some impetus for the employer to mandate vaccinations.[63]
In respect of the public health advice and government recommendations, an employer can demonstrate their appropriate reliance on this advice in order to increase the reasonableness of vaccination directives. The Federal Government, State Premiers and Chief Health Officers have all reiterated that everyone who is eligible, should get vaccinated against COVID-19. The Australian Technical Advisory Group on Immunisation (ATAGI) re-iterates the importance of COVID-19 vaccination as a key component of COVID-19 control with the overarching goal of protecting all people in Australia potential harm.[64] Consequently, ATAGI notes the significant risk that the Delta variant poses to COVID-19 control and therefore continues to recommend COVID-19 vaccination for all adult Australians.[65] While these Government recommendations advocate vaccination with the use of permissive language, such as “recommend” and “should”, they could still inform a reasonable employer that mandatory vaccination is appropriate and reasonable.[66]
As demonstrated, it is readily accepted that the greater the risk of transmission, the high-risk and close contact nature of the employer’s business, any vulnerability of the employer’s clients or customers and the public health advice advocating for vaccination as a measure of protection, increases the reasonableness of a mandatory COVID-19 vaccination policy. Thus, it is likely that if an employer can demonstrate these factors are applicable to their workplace environment, a direction to employees to get vaccinated against COVID-19, will be deemed both lawful and reasonable. Consequently, an employer may direct an employee to be vaccinated and refusing to do so will amount to a valid reason for termination based on the employee’s failure to comply with the reasonable and lawful direction of the employer.[67]
However, if community transmission is low, employees have minimal face-to-face interaction as part of their normal employment duties, for example employees working from home, it decreases the likelihood that a mandatory COVID-19 direction will be reasonable, given the limited risk of infection and transmission.[68]
These policies being implemented as a blanket requirement for all employees, may not be reasonable if not all employees fulfil similar duties and thus are at a similar risk. Blanket mandate statements may fail tests of proportionality, necessity and reasonableness.[69] They may be more than the absolute minimum necessary to combat the COVID-19 crisis and may not be justified on health grounds if there has not been a proper risk management assessment.[70] Ultimately, mandatory COVID-19 vaccination policies should be implemented on a case-by-case basis, upon assessing all relevant factors.
Discrimination Laws
Medical Exemption for COVID-19 Vaccination
Discrimination laws exist under both federal and state legislation, with both jurisdictions prohibiting discrimination on the ground of disability. If an employer implements a mandatory vaccination policy as a condition of their employment or directs employees to be vaccinated under a lawful and reasonable directive, this may constitute indirect discrimination if the employee cannot be vaccinated. An employee or person may not be able to be vaccinated due to a disability, through a valid medical exemption, or another protected attributed under federal and state anti-discrimination laws.
An employee can defend a claim of indirect discrimination if this condition or requirement is considered “reasonable” in the circumstances. The employer holds the burden to demonstrate that the mandatory COVID-19 vaccination policy is reasonable and a range of factors are considered to determine reasonableness. The reasonableness of such a policy increases if there is a relevant public health order, if there are health and safety concerns for which a COVID-19 vaccine would be appropriate, the nature of the work performed by the employee, whether the employee has contact with other employees or the general public, whether the employer is considered to be in a high-risk industry and whether there are any alternative methods that might reasonably achieve the employer’s objective without recourse to the mandatory COVID-19 vaccine requirement, such as testing regimes, remote work, physical distancing or personal protective equipment.[71]
Employers are obligated to make reasonable adjustments to accommodate people with disabilities or in respect of their protected attributes, but not if it will cause an unjustifiable financial hardship on the employer or disrupt the workplace.[72] If the adjustments are unreasonable or if they would still not allow the employee to perform the inherent requirements of the job, there may be a valid reason for dismissal in regards to capacity and it will not constitute discrimination under federal and state laws.
Although the Fair Work Commission does not decide claims brought under anti-discrimination laws, Commissioner Hunt did hold that an employer’s mandatory influenza vaccination policy for all of its client-facing employees, without allowing any medical exemptions, was lawful and reasonable.[73] In deciding this, Commissioner Hunt had regard to the high-risk nature of aged care, the high risk of potentially contracting influenza and COVID-19 and the employer’s legal obligation to protect the safety of their employees or clients in order to decrease their liability for any breaches of their duty of care.[74] Ultimately, Commissioner Hunt held that the employer’s rights, together with their responsibility to their clients, overrode the employees right to decline the vaccination but remain employed.[75]
Conclusion
An Australian employer may have the legal right to mandating COVID vaccine in workplace and require employees to receive the vaccine. An employer may achieve this through introducing policies which render COVID-19 vaccination an inherent requirement of the job or by making a lawful and reasonable directive for employees to be vaccinated. In any event, government-issued mandates clearly provide the strongest justification for mandating COVID-19 vaccines in a workplace. In the absence of a government-issued mandate, it is clear there is a higher burden on employers as they must establish that directing an employee to be vaccinated, is lawful and reasonable.
As discussed, there are many ways in which an employer can increase their reasonableness but notwithstanding this, there are clear scenarios in which an employer will likely not succeed in mandating vaccinations for particular employees. If an employer mandates such policies and does not allow for medical exemptions, they may not be able to defend a discrimination complaint if they have not conducted a proper risk management analysis prior to implementing the policy. In addition, an employer is clearly required to assess each exemption on a case-by-case basis in order to determine whether they have made reasonable adjustments and defend any claim of discrimination.
For the avoidance of doubt and legal recourse, it is vital that employers implement mandatory COVID-19 vaccination policies, or direct their employees to be vaccinated, on a case-by-case basis and only after careful consideration of the necessity and reasonableness of such impositions.
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[1] Department of Health (Cth), About Australia’s COVID-19 Vaccine Rollout (Web Page, 25 September 2021) < https://www.health.gov.au/initiatives-and-programs/covid-19-vaccines/about-rollout>.
[2] DA v Baptist Care SA [2020] FWCFB 6046, [28].
[3] [1999] HCA 63.
[4] Ibid [31]; Qantas Airways Ltd v Christie (1998) 193 CLR 280, 295 (Gaudron J).
[5] X v The Commonwealth [1999] HCA 63, [11].
[6] Ibid.
[7] [2021] FWC 2156.
[8] Ibid [430].
[9] Barber v Goodstart Early Learning [2021] FWC 2156, [385].
[10] Qantas Airways Ltd v Christie (1998) 193 CLR 280, [34].
[11] Barber v Goodstart Early Learning [2021] FWC 2156, [384].
[12] Ibid [384].
[13] Barber v Goodstart Early Learning [2021] FWC 2156 [388].
[14] Qantas Airways Ltd v Christie (1998) 193 CLR 280, [34].
[15] Barber v Goodstart Early Learning [2021] FWC 2156, [396].
[16] [2021] FWC 1818; [2021] FWCFB 6015.
[17] Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWC 1818, [59].
[18] Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWC 1818, [63].
[19] Ibid.
[20] Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWCFB 6015, [54].
[21] Ibid [81].
[22] Ibid [80].
[23] Ibid [51].
[24] Ibid [54].
[25] Ibid.
[26] Ibid [60].
[27] Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWCFB 6015, [164].
[28] Barber v Goodstart Early Learning [2021] FWC 2156, [309].
[29] Ibid[386]; citing Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.
[30] Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWCFB 6015, [109].
[31] Ibid [151].
[32] Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWCFB 6015, [182].
[33] Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320, [69]; citing Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWCFB 6015, [182]-[183].
[34] Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320, [69].
[35] Ibid.
[36] Barber v Goodstart Early Learning [2021] FWC 2156, [303].
[37] R v Darling Island Stevedoring and Lighterage Co Ltd; Ex parte Halliday; Ex parte Sullivan (1938) 60 CLR 601, at 621.
[38] Downe v Sydney West Area Health Service (No 2) (2008) 71 NSWLR 633; 218 FLR 268; [2008] NSWSC 159, at [342].
[39] Barber v Goodstart Early Learning [2021] FWC 2156, [303].
[40] Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWC 1818, [57].
[41] Grant v BHP Coal Pty Ltd [2017] FCAFC 42, [94]; citing R v Darling Island Stevedoring and Lighterage Co Ltd; Ex parte Halliday and Sullivan (1938) CLR 601, 621-62 (Dixon J).
[42] Ibid.
[43] Glover v Ozcare [2021] FWC 2989.
[44] Ibid 242.
[45] CFMEU v Glencore Mt Owen Pty Ltd [2015] FWC 7752, [11]; citing McManus v Scott-Charlton (1996) 70 FCR 16, 30C.
[46] Woolworths Ltd v Brown (2005) 145 IR 285, [24].
[47] Ibid.
[48] Woolworths Ltd v Brown (2005) 145 IR 285, [24].
[49] Ibid [35].
[50] Ibid.
[51] Barber v Goodstart Early Learning [2021] FWC 2156, [309].
[52] Ibid.
[53] Fair Work Ombudsman, COVID-19 vaccinations: workplace rights and obligations (Web Page, 21 October 2021) < https://coronavirus.fairwork.gov.au/coronavirus-and-australian-workplace-laws/covid-19-vaccinations-and-the-workplace/covid-19-vaccinations-workplace-rights-and-obligations>.
[54] Glover v Ozcare [2021] FWC 2989.
[55] Ibid [247].
[56] Glover v Ozcare [2021] FWC 2989 [242].
[57] Barber v Goodstart Early Learning [2021] FWC 2156, [435].
[58] [2020] FWC 6083.
[59] Ibid [32].
[60] Fair Work Ombudsman, COVID-19 vaccinations: workplace rights and obligations (Web Page, 21 October 2021) < https://coronavirus.fairwork.gov.au/coronavirus-and-australian-workplace-laws/covid-19-vaccinations-and-the-workplace/covid-19-vaccinations-workplace-rights-and-obligations>.
[61] [2021] FWC 2156.
[62] Ibid [319].
[63] Grinham v Tabro Meats Pty Ltd [2012] VSC 491, [6].
[64] Department of Health (Cth), ATAGI statement regarding COVID-19 vaccines in the setting of transmission of the Delta variant of concern (News Release, 2 August 2021) <https://www.health.gov.au/news/atagi-statement-regarding-covid-19-vaccines-in-the-setting-of-transmission-of-the-delta-variant-of-concern>.
[65] Ibid.
[66] Barber v Goodstart Early Learning [2021] FWC 2156, [326].
[67] Ibid [396].
[68] Fair Work Ombudsman, COVID-19 vaccinations: workplace rights and obligations (Web Page, 21 October 2021) < https://coronavirus.fairwork.gov.au/coronavirus-and-australian-workplace-laws/covid-19-vaccinations-and-the-workplace/covid-19-vaccinations-workplace-rights-and-obligations>.
[69] Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWCFB 6015, [181].
[70] Ibid.
[71] Australian Human Rights Commission, COVID-19 vaccinations and federal discrimination law (Web Page, 2021) <https://humanrights.gov.au/about/covid19-and-human-rights/covid-19-vaccinations-and-federal-discrimination-law>.
[72] See for example Disability Discrimination Act 1992 (Cth) s.21B.
[73] Glover v Ozcare [2021] FWC 2989, [242].
[74] Ibid [247].
[75] Ibid [262].
