In a first case of its kind the Fair Work Commission considered mandatory vaccinations in a childcare setting in Ashlee Mitchell v Kinda Kapers Holdings. In this case, Ms Ashlee Mitchell, a university trained early childhood teacher, was employed by Kinda Kapers Toronto Pty Limited (KKT) for about six years. Ms Mitchell was dismissed because she was not able to work in her job in circumstances where a public health order prohibited her from carrying out work at an early education and care facility on or after 8 November 2021 without having had two doses of a COVID-19 vaccine or being issued with a medical contraindication certificate. Ms Mitchell argued that her dismissal was harsh, unjust and unreasonable. In other words this was an unfair dismissal case under s.394, Fair Work Act 2009. The Commission considered the issue in detail and concluded (para. 96):
After considering each of the matters specified in section 387 of the Act, my evaluative assessment is that KKT’s dismissal of Ms Mitchell was not harsh, unjust or unreasonable. KKT consulted with Ms Mitchell in relation to the requirement for her to be vaccinated against COVID-19 if she wished to continue to work in a childcare centre. KKT had a valid reason for the dismissal and it afforded procedural fairness to Ms Mitchell prior to making a decision to bring her employment to an end. KKT clearly valued Ms Mitchell as an employee and wanted to retain her as an employee at the Toronto Centre. But KKT was legally obliged to comply with the Public Health Order. The effect of the Public Health Order was that Ms Mitchell was unable to undertake her job from 8 November 2021. There were no alternative duties available for Ms Mitchell. In my overall assessment, these matters outweigh the fact that (a) Ms Mitchell had an excellent employment record, and was a well-regarded and valued employee, during her six years of employment with KKT, (b) there was a change in position, without prior warning or discussion, when KKT dismissed Ms Mitchell on 11 November 2021 rather than keep her in employment until 28 November 2021, (c) Ms Mitchell was not provided with notice of termination or a payment in lieu of notice, and (d) KKT disclosed Ms Mitchell’s vaccination status to parents of the Toronto Centre shortly after her dismissal on 11 November 2021.
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