In our recent alert, we reported on the Fair Work Commission’s decision in Jennifer Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWC 1818. That decision was appealed to the Full Bench of the Commission, and was determined on 27 September 2021. While two of the three members of the Full Bench upheld the original decision, the dissenting decision has received significant (and at times misinformed) attention in the media and in the online community.

Background, and initial decision

Sapphire dismissed Ms Kimber, who was a receptionist in one of Sapphire’s aged care facilities, after she refused to receive an influenza vaccination in 2020. Under public health orders issued by the NSW government at the time, employees were not permitted to enter aged care facilities unless they had an up-to-date flu vaccination. Sapphire complied with this order by ensuring that any employees who did not have an influenza vaccination were not permitted to work at its aged care facilities and as a result, a number of employees of Sapphire who did not wish to have the 2020 influenza vaccine were dismissed.

Ms Kimber claimed that she had developed severe skin inflammation in response to an influenza vaccination she had received in 2016, and stated “her internal organs were also affected”. Based on this, Ms Kimber refused to have an influenza vaccination following the NSW government mandate. Sapphire allowed Ms Kimber to take some unpaid leave and asked her to provide evidence of her medical contraindication. Ms Kimber produced a doctor’s certificate stating that she had a medical contraindication to influenza vaccinations, however Sapphire did not accept this on the basis that “severe facial swelling and rash lasting 10 months from vaccine” was not a medical contraindication for the influenza vaccine and therefore she was not exempt from the government mandate. Before the Fair Work Commission, Sapphire produced expert medical evidence which concluded that it was “improbable” that Ms Kimber’s reported skin condition was caused by the influenza vaccination.

At first instance, the Commission found that Sapphire had not actually directed Ms Kimber to receive an influenza vaccination but held that such a direction would have been lawful and reasonable. It further held that Ms Kimber could not perform the inherent requirements of her role as she was not permitted to be on premises of her workplace under the existing public health orders. Based on this, Ms Kimber was not unfairly dismissed. This decision was appealed to the Full Bench.

Full Bench majority decision: Jennifer Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWCFB 6015

The majority of the Full Bench of the Fair Work Commission refused to grant permission to appeal, finding it would not be in the public interest.

In coming to this decision, Vice President Hatcher and Commissioner Riordan upheld the original findings, including that Ms Kimber did not have a genuine medical contraindication to the influenza vaccination.

As Ms Kimber was seeking reinstatement to her position, the Full Bench queried whether Ms Kimber was willing to comply with the current requirement for workers in all aged care facilities in Australia to have a COVID-19 vaccination. Ms Kimber provided a non-committal response to these questions and the Full Bench inferred that Ms Kimber held a “general anti-vaccination position”, which also weighed against granting permission to appeal, given Ms Kimber appeared unwilling to comply with vaccination mandates.

In the context of the current pandemic and increased attention on mandatory workplace vaccinations, Vice President Hatcher and Commissioner Riordan commented that:

“We consider 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.”

The minority decision

Ironically, the part of the Full Bench decision which has received the most attention is the dissenting judgment of Deputy President Dean.

Deputy President Dean emphatically disagreed with the decision at first instance and the majority’s findings, largely in relation to the medical evidence.

In addition, although not the subject of the appeal, Deputy President Dean proceeded to provide her opinions more generally regarding mandatory COVID-19 vaccinations, going as far as labelling vaccination mandates as “medical apartheid and segregation in Australia”.

Deputy President Dean’s comments have been picked up by the media and have circulated widely, in some cases incorrectly conveying the message that the original decision had been overturned. It is important to point out that, despite some confusion in the public, DP Dean’s comments were simply commentary and are not law.

Ms Kimber’s legal team have announced that they will appeal the Full Bench’s decision. However, at present, the legal position remains that if a government has imposed a vaccination requirement, an employer will have a valid reason to dismiss an employee who refuses to comply with that requirement.

What employers should do

With the latest announcement from the Victorian Government on 1 October 2021 substantially expanding the category of workers who are required to be vaccinated, it is important that employers start taking steps to implement those requirements in their workplaces. Further information about this is contained in our alert Victorian State Government expands vaccination requirements: all authorised workers must be vaccinated against COVID-19.