The full bench of the Fair Work Commission (FWC) has upheld a decision that the dismissal of a residential aged-care facility receptionist, Ms Kimber, who refused to receive a flu vaccine, was not harsh, unjust or unreasonable. The majority decision maintained that Ms Kimber’s employer, Sapphire Coast Community Aged Care Ltd (the Company), had not unfairly dismissed her, as her employment with the Company would be ‘untenable’ after a NSW Public Health Order released in March 2020 (the March Order) stated that ‘that no one must enter such a facility without an up-to-date influenza vaccination’, thereby preventing her from fulfilling the inherent requirements of her position.
Ms Kimber had previously received a flu vaccine in 2015, however there was no evidence to suggest any adverse effects suffered by her from the vaccine at this stage. In 2016, after receiving a flu vaccine administered by a nurse under the employ of the Company, Ms Kimber claimed that she had suffered from negative side effects following the vaccination including “major and debilitating skin inflammation” which also affected her internal organs and persisted for “many months”. In 2017, 2018, and 2019 consecutively, Ms Kimber refused the flu vaccine and her on-going refusal was subsequently accepted by the Company. However, the on-set of COVID-19 brought with it a surging threat to the health and safety of the population, particularly elderly persons living in residential aged-care facilities, calling into question the need to mandate vaccinations, COVID-19 or otherwise, to minimise or eliminate risks to health and safety of employees in workplace, and to protect the potentially vulnerable persons whom they assist.
The purpose of the March Order, amid the commencement of the pandemic, was to “minimise vulnerability to illness among aged residents, to keep the aged care workforce healthy, and to reduce demand on the health care system”. Also, the March Order relevantly required employers of workplaces such as residential aged care facilities to “take all reasonable steps” to ensure that a person did not enter or remain on the premises of facilities, such as those housing immuno-compromised persons, in contravention of the March Order. Notwithstanding the March Order and the multiple lawful and reasonable directions given by the Company to Ms Kimber to obtain a flu vaccine, Ms Kimber refused to follow the direction to receive a flu vaccine and was subsequently terminated.
Although Ms Kimber supplied the Company with a ‘letter of support’ from a general practitioner stating plainly and without any evidence in support that Ms Kimber “has a medical contraindication to the Influenza Immunization” and later supplied the Company with a completed ‘Influenza Vaccine Medical Contraindication’ (IVMC) form authorised by a general practitioner, the Company terminated Ms Kimber’s employment nevertheless, on the basis that she could not fulfill the inherent requirement of her role, namely to enter the aged-care facility.
The full bench majority’s decision to uphold the initial decision, that the dismissal was not unfair, unjust, or unreasonable, goes in large part to the requirement of an objective basis for medical contraindications supporting vaccine exemptions. The full bench majority scrutinised the general practitioner’s assessment of Ms Kimber’s alleged medical condition, claiming that the completion of the approved IVMC form was not enough to prove the existence a medical contraindication, but that the medical contraindication must necessarily ‘qualify’ as such under the Australian Immunisation Handbook. Additionally, the full bench accepted the evidence of an immunologist who maintained that the skin inflammation condition included on the IVMC form certified by Ms Kimber’s general practitioner “did not constitute a medical contraindication” of the influenza vaccine.
Deputy President Dean’s dissenting decision outlined that it was not for the FWC to assess the legitimacy of the general practitioner’s medical opinion of Ms Kimber’s condition and that Ms Kimber should not be denied protections under the Fair Work Act 2009 (Cth) because of an inference that she may hold ‘anti-vaccination’ beliefs. The legal representatives for Ms Kimber have hinted that they may be appealing the majority’s decision to the Federal Court of Australia.
Although mandatory vaccination is being discussed during a tumultuous time, employers can rest assured that the Court’s position is firmly consistent, such that employers requiring employees to receive a vaccine, against the flu at least at this stage, may constitute a lawful and reasonable direction, the refusal of which may form a valid basis for termination. As the influenza vaccine and the COVID-19 vaccine are markedly different, we recommend seeking legal advice before mandating a compulsory vaccination policy for your employees.