In Australia, the ability for employers to mandate vaccinations in their workplaces is a controversial issue that has obtained considerable attention in the wake of the COVID-19 pandemic.
On 27 September 2021, the majority of the Full Bench of the Fair Work Commission handed down its decision in Jennifer Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWCFB 6015 (Decision), providing much welcomed reassurance to employers in Australia that mandating vaccinations, and dismissing those who refuse to be vaccinated, will be lawful in certain circumstances.
The Decision
The Decision involved Jennifer Kimber – a Receptionist, at the Sapphire Coast Community Aged Care – a New South Wales aged care facility. Ms Kimber’s employment was terminated because she refused to get vaccinated against influenza in July 2020. At the time, a New South Wales public health order mandated influenza vaccinations for aged care workers. Ms Kimber made an unfair dismissal claim, arguing that she was exempt from being vaccinated on medical grounds, having previously suffered a rash from the influenza vaccine.
In April 2021 the Fair Work Commission dismissed her claim, finding the employer had made it clear that being vaccinated against influenza was necessary for attendance at work. Ms Kimber also did not establish that she had a medical condition which prevented her from getting vaccinated.
Ms Kimber then attempted to appeal the decision on the grounds that an error was made in the initial decision, and that the decision was a matter of public interest. However, the majority of the Full Bench of the Fair Work Commission disagreed, denying her appeal and upholding the original finding that the dismissal was not unfair. Vice President Adam Hatcher and Commissioner Bernie Riordan rejected Ms Kimber’s medical exemption argument, finding she did not establish a medical condition within the prescribed medical contraindications of the public health order. They also noted that Ms Kimber “held a broader anti-vaccination position”. Given the COVID-19 pandemic in Australia, they warned against encouraging “a spurious objection to a lawful workplace vaccination requirement”.
A zealous dissent and further litigation
Deputy President Lyndall Dean strongly dissented from the majority decision, finding the majority’s decision was a “a serious injustice to Ms Kimber”. DP Dean likened mandatory vaccinations to “medical apartheid” urging all Australians to “vigorously oppose” it.
Unsurprisingly, Ms Kimber’s legal representatives have foreshadowed that she will appeal the Decision in the Federal Court. Until such time, DP Dean’s comments are likely to be relied upon by anti-vaccination workers.
Key takeaways
The Decision aligns with a number of earlier decisions of single members of the Fair Work Commission regarding mandatory influenza vaccination directions in childcare and health care settings. However, this decision is significant because it is from a Full Bench and is the first to be decided in a COVID-19 setting with much of the judgment providing some guidance as to how the Fair Work Commission may view mandatory COVID-19 vaccination directions in certain settings.
While the Decision supports the ability of employers in high risk industries in Australia such as child care and aged care (particularly where they have overarching legal obligations under public health orders) to direct employees to be immunised, it is not a blanket rule. Whether a direction to get vaccinated is a lawful and reasonable direction, and whether employers in Australia can challenge medical evidence by employees to justify their refusal, will always need to be assessed on a case-by-case basis.
