Don’t believe the hype: dismissal of employee who refused to be vaxxed was not unfair
This week’s decision of the Full Bench of the Fair Work Commission in Jennifer Kimber v Sapphire Coast Community Aged Care Ltd  FWCFB 6015 has hit the headlines, primarily due to comments in the dissenting opinion of Deputy President Dean regarding mandatory COVID-19 vaccinations.
Despite the hype, it is of course the decision of the majority which is critical for employers considering risk control measures in their workplace. The majority of the Full Bench found that, in the circumstances, the vaccination direction was both lawful and reasonable, and the employee’s refusal to be vaccinated rendered her unable to perform the inherent requirement of the role. The decision at first instance that her dismissal was for a valid reason, and not otherwise harsh, was upheld on appeal.
A short review of the facts. Although DP Dean spent “Part 2” of her decision sharing her personal views on mandatory COVID-19 vaccinations, the appeal actually concerned the dismissal of a receptionist at an aged care facility who declined to have an influenza vaccination.
Relevantly, the Public Health (COVID-19 Aged Care Facilities) Order 2020 (PHO) barred entry to an aged care facility to those without an influenza vaccination.
Ms Kimber informed her employer she was unwilling to have an influenza vaccination because she had suffered a 10-month rash when she had the vaccination in 2016. Accordingly, she suggested the vaccination was medically-contra indicated; and hence she was exempted from the PHO.
Adopting a conventional approach, the employer sought medical support in relation to the claimed exemption. Ms Kimber first provided a letter from (a non-medically trained) Chinese medicine practitioner. When that was rejected by her employer as insufficient, Ms Kimber provided a letter from a GP, which recited that Ms Kimber “told” the GP about the rash, attached some undated photographs of said rash, but did not otherwise provide any medical diagnosis of medical contra-indication supporting the exemption.
The first instance decision of Commissioner McKenna was sound, and based on settled principles in determining whether there is a valid reason for dismissal based on the ability to perform the inherent requirements of the role. Similarly, the analysis of the majority decision of Vice President Hatcher and Commissioner Riordan was entirely uncontroversial. While Deputy President Dean stated that she “strenuously disagreed” with her colleagues, much of her decision traversed matters not relevant to the determination of the appeal.
Ms Kimber’s lawyers have indicated, on social media no less, that they are considering an appeal to the Federal Court. So there is undoubtedly more hype to come.
In the meantime, we recommend that employers continue to take a conventional and balanced approach to the question of whether mandatory vaccination is appropriate to your workplace having regard to any PHO or following a risk assessment, informed by legal advice. Of course, any medical evidence of contra-medical indications, in the face of a mandatory vaccination policy, must be carefully considered.
Employers considering whether a vaccination policy is appropriate for their workplace should take comfort that the majority decision concluded “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.”
This publication covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. It is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.