On 27 September 2021 the Full Bench upheld the dismissal of an employee who refused to get vaccinated. In Jennifer Kimber v Sapphire Coast Community Aged Care  FWCFB the majority held that the employee’s refusal to get vaccinated against the flu rendered her unable to perform the inherent requirements of her role and constituted a valid reason for her dismissal.
However, in dissent, Deputy President Dean expressed vehement disapproval of the decision and more broadly against mandatory vaccinations which were considered undemocratic and a subversion of our civil liberties.
Nevertheless the reasoning in the majority judgment supports mandatory vaccinations against Covid-19 as well and will reassure employers who must now enforce government mandates or are introducing their own mandatory vaccination policies.
In March 2020 the NSW government implemented the Public Health (Covid-19 Aged Care Facilities) Order 2020 (the PHO) which required employees of an operator of a residential aged care facility to be vaccinated against influenza. An unvaccinated employee could not enter or remain on the premises of a residential aged care facility unless they qualified for a medical contraindication issued by a medical practitioner. The PHO also required the operator of a residential aged care facility to “take all reasonable steps” to ensure that a person did not enter or remain on the premises in contravention of this requirement. The operation of the PHO was extended in June 2020.
Following the PHO, Sapphire Coast Community Aged Care Ltd (Sapphire) issued a letter to its staff requiring they get vaccinated by 1 May 2020 and unless they produced a valid medical contraindication, they would not be allowed to work in aged care.
Ms Kimber had been employed by Sapphire since 2013. During the course of her employment, she had declined to have any previous influenza vaccinations with no issue being taken by Sapphire. Ms Kimber refused to comply with Sapphire’s most recent requirement to get vaccinated on the basis that she had previously experienced a severe allergic reaction to a flu vaccine. She relied upon the advice given by her Chinese Medicine Professional and GP including a completed “Influenza Vaccine Medical Contraindication Form” (the medical contraindication form).
On 30 April 2020 Ms Kimber was stood down for refusing to take the vaccine. Sapphire rejected the reasons provided by Ms Kimber on the basis that they did not amount to a valid medical contraindication. Moreover, the medical contraindication form failed to specify any specific contraindications, claiming “other” reasons including severe facial swelling from a previous vaccine.
Sapphire ultimately decided Ms Kimber had no proper basis to refuse the flu vaccination. There was limited evidence to support a valid medical contraindication such as anaphylaxis, which is referred to in the Australia Immunisation Handbook released by the Commonwealth Department of Health. Sapphire dismissed Ms Kimber from her employment on the basis that her refusal to get vaccinated rendered her unable to fulfil the inherent requirements of her role.
First Instance Decision
Commissioner McKenna held in favour of Sapphire and determined that Ms Kimber’s dismissal was not harsh, unjust or unreasonable. Although Sapphire did not relay any clear written or verbal directions to get vaccinated, the “practical import of communications” clearly revealed an expectation to get a flu vaccine unless there was a medical contraindication. Commissioner McKenna held that even if there was such a direction, it would likely have been lawful and reasonable in light of the PHO.
Commissioner McKenna found that Sapphire acted in an “objectively prudent and reasonable way” in dismissing Ms Kimber because she did not have an up-to-date flu vaccine. The lack of sufficient medical evidence to support a valid contraindication was determinative of the Commissioner’s reasoning.
Decision of Full Bench
By a majority, the Full Bench dismissed Ms Kimber’s application to appeal the decision.
In summary, the majority declined leave to appeal on the following reasons:
- Ms Kimber did not have a medical contraindication to the vaccination. Identifying an alleged medical condition or episode, as Ms Kimber had, is not, in fact, a medical contraindication as required under the PHO. In addition, compelling expert evidence from Professor Wakefield confirmed that Ms Kimber’s reaction to a previous flu vaccine at its highest, did not constitute a medical contraindication. Even if it was a rare case of urticaria/angioedema caused by the vaccine, this was a treatable condition which did not constitute a reason not to administer the flu vaccine.
- Ms Kimber’s refusal to get vaccinated on the basis of an alleged adverse reaction to a previous flu vaccine, lacked any merit.
- Ms Kimber’s credibility was questionable. She had not received any medical treatment in relation to her adverse reaction in 2016, there were inconsistencies in her accounts of her alleged allergic reaction to the vaccine, and she only raised the issue after she was stood down by Sapphire.
- Ms Kimber failed to identify any reason beyond the particular circumstances of her case as to why her appeal would attract the public interest.
- The public interest weighed heavily against the grant of permission to appeal. In light of the pandemic, the majority were apprehensive of encouraging “spurious objections to a lawful workplace vaccination requirement”.
In dissent, Deputy President Dean strenuously disagreed with the outcome of the unfair dismissal application. If the application were re-determined, DP Dean would have found that Ms Kimber was unfairly dismissed and would have restated her to her former position.
DP Dean considered the decision a “serious injustice” to Ms Kimber and a denial of the protections afforded under the Fair Work Act because of “an inference that she holds a general anti-vaccination position”. DP Dean acknowledged an employer’s obligation to implement control measures to meet their health and safety obligations, however noted alternatives to vaccinations which could be implemented by employers, such as testing and provision of personal protective equipment.
 “In making blanket rules in PHOs which deny people their fundamental right to work or operate to “lock them out of society”, and which denies them freedoms which are a fundamental and essential part of any democracy, concepts of reasonableness, necessity and proportionality arise. In other words, decisions taken to restrict or remove basic liberties must be proportionate and necessary to manage the risk and must be the minimum necessary to achieve the public health aims.”
Further Challenges to Mandatory Vaccinations
It is unlikely this is the last case to challenge mandatory vaccinations. On 30 September 2021 the NSW Supreme Court began hearing a case challenging the constitutional validity of mandatory COVID-19 vaccinations under the Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021 (NSW) (NSW Delta Order).
Follow this space as we provide a further update on the outcome of this case.
Lessons for Employers
Although the decision dealt with mandatory flu vaccines, its application clearly extends to mandatory COVID-19 vaccinations.
The decision is a positive outcome for employers who lawfully and reasonably direct mandatory vaccinations. However, it is important that employers adopt a proportionate, reasonable and necessary approach when managing vaccinations in the workplace.
Critically, it is prudent for employers to consider:
- Whether a public health order which mandates vaccinations applies.
- Whether a medical exemption applies and request the employee to produce cogent evidence from their medical practitioner. A letter from a GP which simply restates an asserted illness may not be sufficient to grant an exemption.
- If an unvaccinated employee can be redeployed to another position without breaching any public health orders or workplace health and safety obligations.
- Implementing other reasonably practicable control measures to mitigate the risk of infection such as, testing, appropriate hygiene practices, staggered meal breaks and provision of personal protective equipment including masks.
- Issuing a written direction to the employee and if they still refuse (and absent a valid medical exemption) terminate the unvaccinated employee for failing to perform the inherent requirements of their role and/or for failing to abide by a lawful and reasonable direction.
For further information and guidance see our Webinar COVID-19 – Mandating Vaccinations and Other Relevant Issues in your Workplace; https://www.youtube.com/watch?v=UbPX-MGFIek
Please contact our employment team if you have any queries and wish to discuss further.
Article prepared by: Margaret Gotsopoulos