In a decision which will no doubt be welcomed by employers in the residential aged care sector, the Full Bench of the Fair Work Commission has this week denied permission for an employee in that sector to appeal a decision that she was not unfairly dismissed after refusing an influenza vaccination.[1]  Of course, this decision will produce a similar sigh of relief in relation to mandatory COVID-19 vaccinations in workplaces, particularly where they are in place as the result of a Public Health Order/Direction (PHO).  However, the dissenting judgement in this case indicates that there is some sympathy on the bench for those who nevertheless refuse the jab.

Background

Ms Kimber was employed as a receptionist at a residential aged care facility in NSW.  In March 2020, such facilities became subject to a PHO[2] requiring an employee of the operator of a residential aged care facility to not enter the premises of the facility if they did not “have an up-to-date vaccination against influenza, if the vaccination is available to the person”.  An exemption could be applied for but would only be granted if the Minister was satisfied that the exemption was necessary to protect the health and well-being of the residents or staff of a residential aged care facility.

As part of her role, Ms Kimber greeted and led visitors to residents of the facility.  She had previously had two employer-organised flu vaccinations – one in 2015 (with no issues) and again in 2016.  She refused any further vaccinations from that time on.  Although she didn’t report this to her employer until 2020, Ms Kimber claims that, as a result of her vaccination, she suffered a “major and debilitating skin inflammation” which “covered the top part of [her] body, [her] face and neck with internal organs also affected” and “which persisted for many months”.  Ms Kimber concluded, without any apparent resort to medical advice, that this was “a severe allergic reaction” to the 2016 influenza vaccination.

As a result of the PHO, the employer issued a letter to all staff notifying them of the requirement to have an up to date flu shot and that anyone with a contraindication for the vaccine was required to provide written evidence from their GP or specialist.

Ms Kimber produced a letter from her Chinese medicine practitioner to the effect that she was prescribing Ms Kimber immunity boosting herbs based on an “ancient formula”.  She made no reference to the rash.  Not surprisingly, the employer did not accept this as the requested written evidence and reiterated (by letter to all staff) the requirement to be vaccinated by 1 May 2020, failing which their employment was at risk.

Despite this, Ms Kimber still refused to be vaccinated and so the employer advised her that, as of 30 April 2020, she was stood down from her employment and given the option of annual or long service leave.  She was also directed to attend a meeting with her supervisor to discuss the matter and advised that a failure to attend and subsequent ongoing refusal of the vaccination may result in dismissal.

At the meeting, Ms Kimber provided a letter dated 4 May 2020 from a GP (who had only recently begun treating Ms Kimber) indicating she had had a “severe allergic reaction” to the flu shot in 2016 and that he had advised her not to have it again.  However, this was the first time the employer became aware of any “extreme allergic reaction” and it was clear from the letter that the GP did not treat Ms Kimber at the time and that he was basing his opinion solely on what Ms Kimber had told him.

The original PHO was superseded by a further Order[3] on essentially the same terms but adding an additional basis for exemption from the vaccination requirement where:

“the person presents to the operator of the residential aged care facility a certificate in the approved form, issued by a medical practitioner, certifying that the person has a medical contraindication to the vaccination against influenza.”[4] 

The approved form contained 4 accepted medical contraindications for the flu vaccine and one “other medical contraindication; being…” box.  The form contained a note indicating that “Fluad Quad and Afluria Quad state that people with egg allergy (non-anaphylaxis) can receive an age-appropriate dose and therefore will not qualify for a medical contraindication“.

Ms Kimber provided a further letter from her GP which attached a completed approved form with the “other medical contraindication” box ticked and added “Severe Facial Swelling and rash lasting 10 months from vaccine”.

Ultimately, the employer decided that the form did not indicate a medical contraindication in accordance with the advice of the Chief Medical Officer and that, given the PHO in place, even if there was a valid medical contraindication, the employer could not have Ms Kimber in the workplace because it had no alternative non-residential aged care positions into which she could be redeployed and the risk of having unvaccinated staff in the workplace to residents was too high.  Accordingly, Ms Kimber was dismissed on the ground that she was unable to carry out the inherent requirements of her role.

Ms Kimber made an unfair dismissal claim which was dismissed[5].  She then sought to appeal the decision.

The appeal

The Full Bench decided, in a majority decision[6], that permission to appeal should not be granted.  In coming to this decision, the Commission heard evidence from an eminent immunologist that, amongst other things, it was highly unlikely that Ms Kimber’s rash was caused by the 2016 vaccine but that even if it was, it was generally an easily resolved issue and did not constitute a contraindication to the flu vaccine.

The Majority considered both the various grounds of appeal and the grounds upon which permission to appeal was sought but determined that permission should not be granted because to do so was not in the public interest as required under section 400(1) of the Fair Work Act 2009.

In coming to this view, the Commission took the view that:

  • is not the case that the mere completion of the approved form on the basis of the identification of an alleged medical condition or episode that is not, in fact, a medical contraindication is sufficient to satisfy the requirements of the PHO;
  • it was prudent of the employer to rely on the advice of the Chief Medical Officer and other credible resources in assessing whether the “Severe Facial Swelling and rash lasting 10 months from vaccine” was a valid medical contraindication to the flu vaccine;
  • the balance of Ms Kimber’s appeal grounds lacked merit; and
  • that Ms Kimber’s refusal to have the flu shot was not based on her on her alleged reaction to it but rather because she held a broader anti-vax position.

Lawful workplace vaccination requirement

In a clear indication that directions to employees to have a mandatory vaccination where required by a PHO is a “lawful workplace vaccination requirement”, the Majority also stated that:

“…we consider that the public interest weighs entirely against the grant of permission to appeal. We do not intend, in the circumstances of the current pandemic, to give any encouragement to a spurious objection to a lawful workplace vaccination requirement.”[7]

This decision will be comforting to employers in the residential aged care sector and similar where mandatory vaccinations are imposed under a PHO.

Dissenting judgement

However, this is unlikely to be the end of cases involving mandatory vaccinations and, as the lone decision of Deputy President Dean in this case indicates, she is strongly opposed to mandatory vaccinations, regardless of whether they are mandated by the employer or under a PHO.  In her decision, Dean DP commented that we should be avoiding a form of “medical apartheid” between the vaccinated and unvaccinated.  She also made the following extraordinary and, from an employer’s perspective, somewhat alarming comments:

Permission to appeal has been refused by my colleagues in the majority (the Majority Decision).  Never have I more strenuously disagreed with an outcome in an unfair dismissal application.  The Decision manifest [sic] a serious injustice to Ms Kimber that required remedy.  More egregious, however, is that the Majority Decision has denied Ms Kimber the protections afforded by the Fair Work Act in part because of ‘an inference that she holds a general anti-vaccination position’  Had I been able to do so, I would have granted permission to appeal, upheld the appeal and quashed the Decision. In re-determining the application, I would have found that Ms Kimber was unfairly dismissed and would have reinstated her to her former position. [8]

For now though, employers in sectors affected by vaccination mandates can rest assured that they have the ability to take action where employees refuse a mandatory jab.  Importantly though, where such employees can be redeployed into a position (e.g. in head office) where their unvaccinated presence won’t place the employer in breach of a PHO, or, in the absence of a PHO, won’t constitute an unlawful or unreasonable direction, they should consider doing so before dismissing employees.

[1] Jennifer Kimber v Sapphire Coast Community Aged Care Ltd FWC [2021] FWCFB 6015

[2] Public Health (COVID-19 Aged Care Facilities) Order 2020

[3] Public Health (COVID-19 Aged Care Facilities) Order (No 2) 2020

[4] clause (6)(1)(d)(ii) of Public Health (COVID-19 Aged Care Facilities) Order (No 2) 2020

[5] We issued an update on the original case on 11 May 2021: https://paxton-hall.com.au/2021/05/compulsory-covid-flu-vaccinations-in-the-employment-spotlight/

[6] Vice President Hatcher and Commissioner Riordan (majority), Deputy President Dean (minority)

[7] at [60].

[8] at [64]-[66]

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