In a widely reported decision handed down earlier this week, Jennifer Kimber v Sapphire Coast Community Aged Care  FWCFB 6015, a Full Bench of the Fair Work Commission has taken the opportunity to provide its views on the mandating of flu and COVID-19 vaccinations under public health orders and what requirements must be met by an employee asserting that they cannot become vaccinated due to a medical contraindication.
In summary, the majority of the Full Bench has confirmed that it is not enough for an employee to merely assert that they have, or have previously had, a medical condition which prevents them from being safely vaccinated. In considering whether an asserted medical contraindication is a valid basis for exemption from vaccination, the Full Bench has found that an employer may consider expert medical evidence.
Ms Kimber had most recently been employed as a receptionist by Sapphire Coast Community Aged Care (Sapphire Coast) and had been employed since April 2013. Commencing in 2020, various public health orders (PHO) were made by the New South Wales Government about the requirement to receive flu vaccinations for people who worked at or otherwise attended NSW residential aged care facilities. Specifically, in March 2020 a PHO was released stating that an operator of a residential aged care facility must take all reasonable steps to ensure that a person did not enter or remain on the premises of an aged care facility unless they had an up to date vaccination against the flu, if the vaccination was available to that person.
Ms Kimber had previously declined to have a flu vaccination in 2017, 2018 and 2019, and no action had been taken by Sapphire Coast as a result. Due to the March 2020 PHO, Sapphire Coast sought to mandate flu vaccinations in the workplace for all of its employees, unless the employee had a specific medical exemption supported by evidence, and notified all of its employees of its decision accordingly. In response, Ms Kimber initially provided Sapphire Coast with a letter from a practitioner in Chinese medicine, who stated that Ms Kimber ‘would prefer to not have the flu vaccination’ and that the practitioner was prescribing her with immune boosting and anti-viral herbs in order to prevent COVID-19 and the seasonal flu.
Sapphire Coast did not consider that Ms Kimber had a proper basis to refuse the flu vaccination, and as a result, it stood Ms Kimber down from her employment on the basis that she was unable to produce a medical certificate stating that she had a contraindication to receiving the vaccination. At a meeting in May 2020, Ms Kimber provided a letter of support from her GP stating that she had ‘a medical contraindication to the Influen[z]a Immunisation…’ and that she had had ‘…a severe allergic reaction to the flu shot in the past and has been advised not to have it again.’ Ms Kimber then commenced a period of paid leave, indicating that she would like to wait and see whether the vaccination requirement may change.
On 1 June 2020, Ms Kimber sent an email to Sapphire Coast noting that the March 2020 PHO was due to expire on 22 June 2020, and advising that she would return to work after the end of her current period of paid leave on a part-time basis. On 22 June 2020, a new PHO was issued, which relevantly continued the requirement for employees to be vaccinated against the flu in order to be able to enter or remain on the premises of a residential aged care facility, unless an employee was able to present a medical contraindication form issued by medical practitioner.
Ms Kimber arranged to receive a further letter of support from her GP, which provided more specific details in relation to her alleged severe allergic reaction to a previous flu vaccine, together with two undated photos showing the reaction which was said to have occurred. In addition, the GP completed a medical contraindication form, but importantly did not indicate any of the specific contraindications listed on the form, instead completing the ‘other’ box and referencing severe facial swelling and a lasting rash.
Ms Kimber was then invited to a further telephone meeting with Sapphire Coast, in the form of a show cause discussion, where she was requested to provide any additional information which needed to be considered by Sapphire Coast. Based on the information provided, Sapphire Coast was ultimately not satisfied that Ms Kimber’s medical evidence constituted a medical contraindication as outlined in the June 2020 PHO. As a result, Sapphire Coast terminated Ms Kimber’s employment on the basis that without being vaccinated against the flu, she could not fulfil the inherent requirements of her role.
Ms Kimber subsequently filed an application for unfair dismissal in the Fair Work Commission (FWC).
At first instance, Commissioner McKenna supported Sapphire Coast’s decision and found that the termination of Ms Kimber’s employment was not harsh, unjust or unreasonable.
The Commissioner found that there was not sufficient evidence to support a finding that Ms Kimber had previously suffered some form of adverse reaction to the flu vaccination in 2016 and Sapphire Coast had taken ‘an objectively prudent and appropriate approach’ in dealing with these issues. While that decision at first instance was made in the context of the COVID-19 pandemic and PHOs prompted by the pandemic, the decision itself did not deal with COVID-19 vaccinations directly or any requirement to mandate those vaccinations as such. Ms Kimber sought to appeal this decision.
The FWC may only grant permission to appeal an unfair dismissal decision where it considers that it would be in the public interest to do so.
The majority of the Full Bench (Vice President Hatcher and Commissioner Riordan) determined that it was not appropriate to grant permission to appeal in this matter. In reaching that position, the majority decision made a number of significant observations:
The dissenting decision of Deputy President Dean has already received some publicity. In her judgement, DP Dean stated that she had never more strenuously disagreed with an outcome in an unfair dismissal matter and that the decision at first instance manifested a serious injustice to Ms Kimber that required remedy.
In forming her dissenting view, DP Dean found that there was no reasonable and lawful direction given by Sapphire Coast to Ms Kimber, and that there could not be one in circumstances where Ms Kimber had a valid exemption. DP Dean stated that it was not open to Sapphire Coast to:
DP Dean took the view that all that was required for Ms Kimber to come within the exemption from vaccination was to provide a valid, completed medical contraindication form. DP Dean based her view, in part, on the basis that a medical practitioner would not complete a medical contraindication form or provide a letter of support if they did not generally believe that the patient had a medical contraindication.
DP Dean noted that the majority decision raised the issue of mandatory COVID-19 vaccinations in workplaces and took an opportunity to also deal with this issue. DP Dean’s views in this regard were made in the context of her opinion that COVID-19 vaccinations (unlike other vaccinations) are not designed to stop COVID-19, but rather to reduce the symptoms, the risks of COVID-19 are less serious for those who are young and are otherwise healthy, that most people diagnosed with COVID-19 recover without any medical treatment, and that the COVID-19 vaccinations themselves have only been provisionally approved for use in Australia and that they are still part of a clinical trial.
DP Dean expressed the view that employers could continue to meet their health and safety obligations, including to minimise the risk of exposure to COVID-19 in the workplace, by undertaking testing as a control measure rather than requiring vaccinations.
Controversially, DP Dean concluded her dissenting decision by making some strong statements about Australia’s COVID-19 strategy, stating that:
“[b]lanket rules, such as mandating vaccinations for everyone across a whole profession or industry regardless of the actual risk, fail the tests of proportionality, necessity and reasonableness. … It is a lazy and fundamentally flawed approach to risk management and should be soundly rejected by courts when challenged. … All Australians should vigorously oppose the introduction of a system of medical apartheid and segregation in Australia. … Australians should also vigorously oppose the ongoing censorship of any views that question the current policies regarding COVID. … Finally, all Australians, including those who hold or are suspected of holding “anti-vaccination sentiments”, are entitled to the protection of our laws, including the protections afforded by the Fair Work Act. In this regard, one can only hope that the Majority Decision is recognised as an anomaly and not followed by others.”
It is important to note that an employer will need to rely upon the majority decision should they face similar legal challenges in the future. Although DP Dean’s dissenting decision has provided an alternate view in respect of mandating vaccinations in the workplace, those views are inconsistent with the position adopted by the Federal government, State and Territory governments, and the published positions of the Fair Work Ombudsman and Safe Work Australia.
Ms Kimber’s legal representatives have already indicated that they intend to appeal this Full Bench decision to the Federal Court.
While this Full Bench decision, strictly speaking, only needed to deal with flu vaccinations and the mandating of those vaccinations in the context of PHOs, the Full Bench of the FWC has taken the opportunity to express its views more broadly in relation to the mandating of COVID-19 vaccinations in the PHO context.
Employers should consider the following points in managing vaccinations in the workplace in the context of PHOs:
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Brett Feltham, Partner
Diana Diaz, Special Counsel
Sera Park, Associate