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Minority decision injects some support into pro-choice vaccination debate

11 October 2021

The majority of the Full Bench of the Fair Work Commission have denied permission to appeal to an aged care receptionist who refused the influenza vaccination on the belief that she had a previous allergic reaction in 2016. The decision follows a previous ruling by Commissioner McKenna which held the Applicant was not unfairly dismissed and confirms that (at least in the circumstances of the case) a vaccination direction is lawful and reasonable. 

In the case of Jennifer Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWCFB 6015, Deputy President Dean, in a controversial minority, has warned against the introduction of blanket rules that operate to "lock out" objectors from their fundamental right to work, and a system of medical segregation in Australia. Ms Kimber's legal representatives following the appellate denial, indicated their client's appetite to challenge the decision in the Federal Court. 

'Lawful and reasonable direction' and the Initial Decision 

Sapphire Coast Community Aged Care Ltd (Sapphire) terminated the employment of Ms Jennifer Kimber in July 2020, when she refused to comply with Sapphire's mandatory flu vaccination policy. Sapphire outlined that Ms Kimber's objections rendered her unable to perform the inherent requirements of her role. The policy was implemented in accordance with the Public Health (COVID-19 Aged Care Facilities) Order 2020 (the March Order) issued by the NSW Government in March 2020. The March Order required employers of residential aged care facilities to take all reasonable steps to ensure their workforce had received the most recent flu vaccination, unless the person was exempt due to a medical contraindication. 

Despite providing no previous notification of the reaction, nor any medical records or evidence of necessitated absences from work to substantiate her assertion, Ms Kimber noted that she had suffered extreme skin inflammation as a direct consequence of the inoculation administered by Sapphire in 2016. Sapphire found (in consideration of the Australian Immunisation Handbook and remarks from the Chief Medical Officer) that even with accompanying letters of support from her general practitioner, Ms Kimber's circumstances did not constitute a vaccine contraindication. 
Ms Kimber subsequently brought an unfair dismissal application challenging her dismissal before the Fair Work Commission. 

In the initial April decision, Commissioner McKenna determined that Ms Kimber's termination was lawful and rejected her application for an unfair dismissal remedy. 

The Commissioner's reasoning for finding the dismissal was justified included:

  • Ms Kimber's evidentiary case did not establish that the condition resulted from the 2016 flu shot such as to demonstrate any medical contraindication;
  • while Sapphire did not actually give Ms Kimber an explicit direction, they did firmly communicate to Ms Kimber that having an up-to-date flu vaccination was necessary for attendance for work, unless she had one of the specified medical contraindications; 
  • regardless of whether a direction was given, one would have been lawful and reasonable in light of the March Order and the subsequent Public Health Order issued in June 2020; and
  • Ms Kimber's preference to remain unvaccinated meant she could not perform the inherent requirements of her role. 

The Appeal decision

Supporting Commissioner McKenna's ruling, Vice President Hatcher and Commissioner Riordan refused Ms Kimber's permission to appeal (the Majority Decision). The Majority Decision stated that given the current pandemic context, to give any encouragement to a "spurious objection to a lawful vaccination requirement" weighed "entirely against" the public interest.  

The Majority Decision of Vice President Hatcher and Commissioner Riordan observed:

  • Ms Kimber's contention that she was denied procedural fairness was entirely misconceived;
  • there was real doubt in Ms Kimber's credibility arising from her silence in her evidence, the inconsistencies in her accounts of her purported allergic reaction, and her general anti-vaccination position;
  • Ms Kimber's general practitioner did not objectively determine through an examination that Ms Kimber had a medical contraindication. It is insufficient for a treating doctor to fill in any medical condition into an exemption form; and 
  • Ms Kimber's preferred remedy was reinstatement, however without a clear advance commitment that Ms Kimber will comply with Covid-19 vaccination requirements for workers in residential aged care, there was little utility in granting permission to appeal.

Minority Judgement - Deputy President Dean

Critical of the Majority Decision and in dissent, Deputy President Dean (DP) indicated her hope the decision was an anomaly given she had never "more strenuously" disagreed with an outcome. She outlined that had she had the opportunity to re-hear the matter, she would have found Ms Kimber was unfairly dismissed and ordered reinstatement. 

In her judgment, the DP went so far as to say that current public heath orders have moved beyond the minimum necessary to achieve public health aims and manage the risks, instilling "blanket rules" which operate to "lock out" objectors from contributing to society. Touching on the voluntary nature of vaccinations, the DP likened mandatory vaccination directions to the concept of coercion and a deprivation of "free consent" – a fundamental and internationally recognised human right. 

Finally, although not relevant to the Commission's determination in this matter, the DP also stated that "it is highly likely that the dismissal of an employee who fails to have the COVID vaccine will breach the Disability Discrimination Act 1992 (DD Act)" and that the exemption within the DD Act for discrimination to protect public health would not apply. Whilst this view is unsupported and certainly untested, if this were to be applied, employers would be exposed not only to Unfair Dismissal Applications but also General Protections claims in dismissing employees who refuse to be vaccinated – watch this space.

Final Remarks 

The Majority Decision reiterates the authority of an employer to mandate vaccinations were reasonable in the circumstances. 

It will ultimately depend upon the circumstances of each case as to whether a vaccine direction is lawful and reasonable. Key factors to consider are: the risk profile of the workplace, alternative available risk mitigation controls and the reasons underpinning a worker's refusal to comply (e.g. medical or religious grounds).  

The Minority Decision however provides an indication that the matter of mandatory vaccination in the workplace is far from settled. 

If you require further information or have any queries in relation to this legal update, please contact Matthew Smith or Mason Fettell.

We would like to acknowledge the contribution of Ashleigh O'Connor (Solicitor) to this article.

Further Reading