Thinking | 5 October 2021
Employee not dismissed unfairly for failing to vaccinate: FWC Full Bench decision
By Karl Rozenbergs and Emily Abdilla
In an important decision, a Full Bench of the Fair Work Commission (Commission) has upheld an earlier decision in favour of an employer that dismissed a receptionist in an aged care facility who refused a mandatory vaccination against influenza.
Single Commissioner decision
Sapphire Coast Aged Care Ltd (Sapphire) operates several aged care facilities in New South Wales (NSW). Prior to her dismissal, Ms Kimber was employed as a receptionist at Sapphire’s Imlay House in Pambula, NSW. Sapphire introduced a mandatory vaccination policy in accordance with a NSW Public Health Order (PHO). This order prohibited anyone from entering or remaining on the premises of an aged care facility without an up-to-date flu vaccination (subject to a limited medical exemption).
Ms Kimber refused the vaccination. She claimed that she had suffered a skin condition after receiving a flu vaccination administered in 2016. Following her refusal, Sapphire stood her down and subsequently dismissed her on the basis that her condition was not an accepted contraindication to the flu vaccine under the PHO.
Ms Kimber provided a letter from a Chinese medical practitioner, two letters of support stating that she had a contraindication to the vaccine, and an influenza vaccine medical contraindication form (IVMC). Sapphire rejected that documentation in light of a press release from the NSW Chief Medical Officer.
The Commission dismissed Ms Kimber’s application for an unfair dismissal remedy against Sapphire. The Commission found that the dismissal was for a valid reason, was procedurally fair, and was not harsh, unjust or unreasonable.
Ms Kimber appealed that decision.
Full Bench decision
A Full Bench of the Commission decided by majority to not grant Ms Kimber permission to appeal.
The key reasons for the majority’s decision were as follows:
- Proper construction of the medical exemption clause: The majority found that the medical exemption in the relevant PHO could only operate where a medical practitioner certifies that the relevant person has a medical contraindication to the vaccination. The mere completion of the IVMC by a medical practitioner would not satisfy the clause. The four accepted contraindications listed on the IVMC were followed by a final option for the practitioner to identify any other contraindication deemed relevant. The majority agreed that this blank space was not intended to provide a practitioner with complete freedom to fill in any medical condition or episode at his or her discretion.
- Lacking in merit: Ms Kimber’s other appeal grounds lacked in merit. This included that the Commission’s initial findings were not based on the prohibition in the PHO and that Ms Kimber had been denied procedural fairness.
- Credibility of Ms Kimber’s case: There was real doubt as to the credibility of the ‘main tenet of Ms Kimber’s case’. These doubts arose from multiple matters including the silence in her evidence as to seeking medical treatment for the skin condition and that she did not report the condition to Sapphire after receiving her vaccination.
- No public interest argument: Ms Kimber did not identify any reason beyond the particular circumstances of her case as to why her appeal would be of interest to the public.
- Grant of appeal would be against the public interest: The majority found that the public interest weighed against the grant of the appeal as not to encourage a ‘spurious objection to a lawful workplace vaccination requirement’.
The Commission also made note of the impending mandatory PHOs for the aged care sector to be vaccinated against COVID-19. The Commission questioned Ms Kimber on the topic of whether she would receive a vaccination against COVID-19. To this end, her solicitors stated that she would consider the terms of any law and the advice of her general practitioner before making an informed decision. The majority viewed this as further evidence of Ms Kimber’s anti-vaccination position.
Minority decision of Deputy President Dean
Deputy President Dean ‘strenuously disagreed’  with the outcome of the unfair dismissal application and labelled the majority decision as a ‘serious injustice to Ms Kimber’. DP Dean stated that the decision denied her of the protections afforded to her under the Fair Work Act 2009 (Cth) and made an ‘inference that she held a general anti-vaccination position’.
DP Dean’s dissent discussed why, in her opinion, Ms Kimber had been unfairly dismissed and also addressed the majority’s reference to COVID-19 and vaccine requirements. Her key reasoning included the following:
- Ms Kimber’s letter of support and IVMC was valid evidence of an exemption and a direction to mandate the influenza vaccination would have been contrary to her medical advice. She was therefore not impeded from entering her workplace, and not unable to complete the inherent requirements of her role.
- Ms Kimber did not need to prove that her skin reaction was a result of the flu vaccination received in 2016. Rather, all that was required was a properly completed IVMC.
- Although the majority decision was critical of what Ms Kimber did not do following her vaccination in 2016, there was no requirement for her to do any of those things as the flu vaccination was not mandatory at that time.
Concerning the issue of COVID-19, DP Dean took a critical view of mandatory vaccinations as a necessary control measure in lieu of alternative protections.
Overall, however, the Full Bench’s decision in Jennifer Kimber v Sapphire Coast Aged Care Ltd emphasises the importance of objective evidence of an accepted medical contraindication on the IVMC.
If you need assistance in managing your approach to vaccinations in the workplace, please contact a member of our Employment and Workplace Relations team.
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