Lawful workplace vaccination requirement upheld in significant Full Bench decision

In the decision of Jennifer Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWCFB 6015, the Full Bench of the Fair Work Commission (the Full Bench) has refused an appeal of an unfair dismissal application related to an aged care employee who refused a mandatory influenza vaccination requirement on the basis of an alleged medical contraindication.

In a majority decision of the Full Bench, it was held that “in the current circumstances of the COVID-19 pandemic, no encouragement should be given to the objection of a lawful workplace vaccination requirement.”

Facts

Ms Kimber was employed as a receptionist at a high-care residential aged care facility operated by Sapphire Community Coast Aged Care Ltd (Sapphire Aged Care) in New South Wales. Over the course of her employment, Ms Kimber had received work administered vaccinations against influenza. Ms Kimber submitted that around the time of her 2016 vaccination she developed severe skin inflammation and experienced an intense burning sensation over parts of her body. Ms Kimber attributed the condition as an acute allergic reaction to the influenza vaccination.

In 2020, the Australian Federal Government took steps to mitigate the impact of the COVID-19 pandemic with a view to protect the community’s vulnerable residents living in aged care facilities. New South Wales issued public health orders that provided a person may not enter or remain on the premises of a residential aged care facility if they had not received an up-to-date vaccination against influenza. Sapphire Aged Care implemented the requirement to be vaccinated across all employees. Employees who refused the vaccination were obligated to provide Sapphire Aged Care with medical evidence explaining their reasons for refusal.

Ms Kimber chose not to have the influenza vaccination on the basis of her alleged allergic reaction a number of years prior. Ms Kimber provided a letter of support from her current medical practitioner which stated that she had a certified medical contraindication to the vaccination after experiencing a previous allergic reaction. The letter of support enclosed the pro forma Influenza Vaccine Medical Contraindication Form (the IVMC Form), certifying that Ms Kimber had a medical contraindication to the vaccination, namely “severe facial swelling and rash”.

Sapphire Aged Care did not accept the medical evidence submitted by Ms Kimber under the advice of the New South Wales Chief Medical Officer and the public health orders. Accordingly, Sapphire Aged Care stood down Ms Kimber from her duties and later terminated her employment on the basis that she had failed to comply with a lawful and reasonable direction to be vaccinated against influenza. Specifically, as a result she was unable to perform the inherent requirements of her role. Ms Kimber filed an unfair dismissal application in the Fair Work Commission (the Commission).

First Decision

At the hearing before the Commission, Ms Kimber was the sole witness of her case. The Commission held that Ms Kimber’s evidence attributing her condition to the 2016 influenza vaccination was poorly developed and unsupported by medical experts.

Sapphire Aged Care tendered expert medical evidence from a specialist immunologist, Professor Wakefield. Specifically, Professor Wakefield stated that there was no evidence Ms Kimber had an allergic reaction to the vaccination and the condition was more likely caused by a chronic form of dermatitis.

The Commission held that the direction to be vaccinated against influenza was lawful and reasonable as it reflected the law as it applied in 2020 to residential aged care workers. The Commission further stated that whilst Ms Kimber was entitled to make her own personal decisions about whether to have the influenza vaccination, she was unable to perform the inherent requirements of the position if she was not properly permitted to enter or remain at the Sapphire Aged Care facilities. The Commission held that the termination was not harsh, unjust or unreasonable and an order was made to dismiss the application.

Appeal to the Full Bench

Ms Kimber subsequently lodged an appeal of the initial decision to the Full Bench. Ms Kimber’s grounds of appeal were that she had not been provided procedural fairness, Sapphire Aged Care had no proper basis for the determination that the vaccination against influenza was an inherent requirement of Ms Kimber’s employment, that Sapphire Aged Care failed to consider the medical evidence submitted in support of her contraindication to the vaccination, and that there was strong public interest.

In a majority decision, Vice President Hatcher and Commissioner Riordan refused the appeal on the following grounds:

• The mere completion of the pro forma IVMC Form and the condition described by Ms Kimber did not demonstrate a medical contraindication to the influenza vaccine, as supported by the expert evidence of Professor Wakefield;
• The appeal grounds generally lacked in merit as the Commissioner made no adverse findings regarding Ms Kimber’s credibility, there was no inadequacy in the Commission’s reasoning, and the Commissioner did not err in any findings made regarding misleading or dishonest statements made by Sapphire Aged Care;
• Ms Kimber demonstrated a general anti-vaccination position which impacted the credibility of her argument that she had refused the vaccination on the basis of a medical exemption; and
• The appeal would not be in the public interest in the circumstances of the current pandemic, finding that no encouragement should be given to the objection of a lawful workplace vaccination requirement.

In Dissent - Commentary on COVID-19 Vaccinations

An additional matter arose in the course of the appeal hearing as mandatory COVID-19 vaccinations were announced for residential aged care workers. Ms Kimber was asked if she was prepared to receive the COVID-19 vaccination, to which she responded that she had not reached a position in relation to the mandatory vaccination and wished to obtain further medical evidence to reach an informed decision.

In dissent, Deputy President Dean went on to discuss at length the issue of mandatory COVID-19 vaccinations and their relevance in Australian workforces. Deputy President Dean stated that public health orders provided by the Federal and State Government are “not intended to be an ongoing vehicle” and that the time is fast approaching where compliance with these types of directions will be less relied upon. Interestingly, Deputy President Dean stated:

“Blanket rules, such as mandating vaccinations for everyone across a whole profession or industry regardless of the actual risk, fails the tests of proportionality, necessity and reasonableness.”

Importantly, Deputy President Dean’s judgment was in dissent and therefore is not binding. It is essentially commentary or opinion on the COVID-19 issue.

Take Home Messages

Whilst the majority of the Full Bench determined that the influenza vaccination was lawful, this case serves as a timely reminder to employers that the circumstances surrounding COVID-19 and workplace restrictions are frequently evolving.

Employers who implement a lawful and reasonable COVID-19 vaccination requirement within their workplace are reminded to treat employee refusals on a case-by-case basis and consider whether there may be a valid medical reason for the refusal, or suitable alternatives.

Norman Waterhouse will continue to keep you up to date on any future developments.

Norman Waterhouse has developed COVID-19 policy templates which are available to its clients upon request. For more information regarding these policies or in relation to any of the material contained in this article please contact Sathish Dasan on +61 8 8217 1253 or sdasan@normans.com.au, Ganesh Krishnan on +61 8217 1395 or gkrishnan@normans.com.au or Anastasia Gravas on +61 8217 1331 or agravas@normans.com.au.