A Full Bench of the Fair Work Commission (FWC) has handed down a significant decision on workplace vaccinations, with the majority backing a New South Wales aged care employer’s dismissal of its receptionist for refusing to be vaccinated against influenza.
Whilst made in the context of a state-issued Public Health Order (PHO), the decision covers a number of matters relevant to employer-mandated COVID-19 vaccinations, including potential circumstances where an employee has limited evidence supporting a purported medical exemption and / or where they exhibit general anti-vaccination views.
Employers will welcome the Full Bench majority (Vice President Hatcher and Commissioner Riordan) providing clear and practical findings in relation to an employer’s ability to objectively assess the legitimacy of medical evidence provided by an employee.
However, also noteworthy is the extraordinary dissenting decision from one member of the Full Bench (Deputy President Dean), in which she described the majority decision as a “serious injustice” and harshly criticised her FWC colleagues for making their own assessment of medical documents.
A summary of the key elements of this decision, relevant to AMMA’s members, follows.
Background / Facts
The applicant, Ms Kimber, was employed as a clerk/receptionist by the respondent, Sapphire Coast Community Aged Care Ltd (Sapphire) at its “Imlay House” facility in 2013.
In the years from 2015-2019 Sapphire provided a voluntary annual influenza vaccination program for its employees. Ms Kimber took part in this vaccination program in 2015 and 2016, however declined the vaccine each year from 2017-2019.
On 24 March 2020, the NSW Minister for Health issued a new PHO under the Public Health Act 2010 (NSW), requiring that an employee of the operator of a residential aged care facility not enter the premises of the facility if they did not “have an up-to-date vaccination against influenza, if the vaccination is available to the person”.
The PHO also required that an operator of a residential aged care facility “take all reasonable steps” to ensure that a person did not enter or remain on the premises in contravention of this requirement. Exemptions from these requirements had to be provided in writing by the Minister.
For context – at that time no vaccine for COVID-19 was available. The Commonwealth Government issued a press release on 3 April 2020 outlining the nationally consistent rationale that led to the NSW PHO, namely that all steps had to be made to protect the general health of aged care residents given their high vulnerability to COVID-19.
Sapphire first actioned this Order by sending a letter to its staff on 3 April 2020, informing them of the NSW Government’s influenza vaccination requirement and the company’s annual influenza vaccination program.
This was followed by a further letter to staff on 21 April 2020 advising them that Sapphire had received a supply of influenza vaccines and that staff who were not vaccinated by 1 May 2020 would not be allowed to work in aged care.
Ms Kimber was ultimately dismissed on 6 July 2020 following various communication with Sapphire’s management – the key elements of which are explored below.
Medical evidence supporting refusal
At the heart of this matter was a dispute over the legitimacy of medical evidence provided by Ms Kimber to support her refusal to be vaccinated.
The key contention of Ms Kimber’s unfair dismissal application was that she had a proper basis to refuse vaccination, based on a severe allergic reaction to receiving the company-issued “flu shot” in 2016.
Ms Kimber told Commissioner McKenna – the FWC member who first heard and dismissed her unfair dismissal application in April 2021 – that as a result of the flu vaccine she “developed a severe skin inflammation over parts of her body, including her face; had an intense burning sensation; and her internal organs were also affected”.
In a meeting with the facility manager, Ms Main, on 4 May 2020, Ms Kimber provided a short “letter of support” from a local general practitioner (GP) that simply stated:
“I have attended Ms Jennifer Kimber on 27/4/2020. Jennifer has a medical contraindication to the Influena [sic] Immunization. She has had a severe allergic reaction to the flu shot in the past and has been advised not to have it again.”
Ms Kimber also produced the government approved Influenza Vaccine Medical Contraindication Form (IVMC), completed by the same GP, in which he crossed the box for “other medical contraindication” and handwrote as being “Severe facial swelling and rash lasting 10 months from vaccine”.
Evidence provided by the CEO of Sapphire, Mr Sierp, was that he considered that the letter of support and IVMC form provided by the GP did not constitute a medical contraindication.
He relied upon his interpretation of the advice of the Chief Medical Officer provided in the Commonwealth’s April 3 media release and other information such as the Australian Immunisation Handbook.
Noting the lack of evidence supporting Ms Kimber’s apparent reaction to the 2016 vaccine, Commissioner McKenna found the CEO “took an objectively prudent and appropriate approach” in making this determination.
“It seems counterintuitive that if (Ms Kimber) had these symptoms of the condition as a consequence of a workplace-administered flu shot in 2016 she did not pursue – indeed vigorously pursue – the matter with the respondent,” Cmr McKenna said.
“It also seems counterintuitive to suppose that, following what the applicant (apparently) contends was a medically diagnosed reaction to a flu shot around 2016-17, there was no contemporaneous reporting of that reaction to any regulatory authority.”
The Full Bench majority (Vice President Hatcher and Commissioner Riordan) was similarly critical of the evidence put forward to support Ms Kimber’s claim. In its decision upholding the single member findings, the Full Bench majority summarised the issues with the evidence as:
- there was virtually no detail given by Ms Kimber about this condition; for example, she did not say how long after the vaccination the condition began, she did not explain why she thought it was an allergic reaction to the vaccination, and she did not explain which “internal organs” were affected or why she thought this was the case;
- Ms Kimber did not give evidence that she ever sought medical treatment for this alleged condition, and there was no separate evidence of any contemporaneous examination or diagnosis by a medical practitioner (subject to one matter discussed later);
- she never took any time off work because of this condition;
- she never informed anyone in Sapphire’s management at the time that she considered that she had suffered an adverse reaction to the influenza vaccination which they had caused to be administered; and
- the evidence of Ms Main (the Facility Manager) was that she was aware only that Ms Kimber had complained to other employees about “having issues with her skin, from time to time and that she was seeing a Naturopath and trialling alternative therapies for a skin condition”.
At the hearing before Commissioner McKenna, Sapphire tendered an expert medical report from allergy and immunology specialist Professor Denis Wakefield, whose evidence cast further significant doubt on Ms Kimber’s claims that the 2016 flu shot was the cause of a severe allergic reaction with the characteristics she had described.
In relation to the letter of support Ms Kimber obtained from the local GP, the Full Bench majority found no suggestion he had ever attender Ms Kimber prior to 27 April 2020.
“The obvious inference to be drawn from the letter is that the entire basis for (the GP’s) assertion that Ms Kimber had previously suffered an adverse reaction to the influenza vaccination was what Ms Kimber had told him,” the Full Bench majority said.
In another significant development for employers, the Full Bench majority considered evidence that Ms Kimber held a “broader anti-vaccination position” as relevant for determining the credibility of her case.
The Full Bench majority relied upon a letter sent by Ms Kimber to Sapphire’s CEO on 12 May 2020, weeks prior to her dismissal whilst she was on approved leave, in which she put forward alleged evidence that she had “google searched” as to why the “flu vaccine is not completely safe”.
The Full Bench majority found the contents of the letter, in which she also described the vaccine as “an invasive medical procedure”, demonstrated that Ms Kimber’s objection to taking the influenza vaccine “went beyond her alleged adverse reaction in 2016, and that she held a broader anti-vaccination position”.
Supporting this finding was an earlier letter Ms Kimber provided the employer from a practitioner of traditional Chinese medicine, who claimed the vaccine was not necessary as she was providing Ms Kimber antiviral herbs based on an ‘ancient formula’ to boost her immune system.
In dismissing Ms Kimber’s application, the Full Bench majority made a final point that the public interest weighed 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,” it said.
“Inappropriate” for unqualified critique of medical docs – Dissenting member
In an extraordinary dissenting decision, Deputy President Dean took aim at her FWC colleagues for endorsing the CEO’s approach of disregarding medical documents and to instead “substitute his own opinion based on a media release”.
“If this approach were to be correct, the effect is that it is open for employers to simply disregard the professional opinion of a medical practitioner and instead make their own unqualified medical diagnoses, or form their own views about circumstances in which medical conditions may or may not be contraindications to a vaccine,” DP Dean said.
In relation to the Full Bench majority’s critique of the medical forms provided, DP Dean found it was not up to the Commission to decide whether a medical practitioner has a reasonable basis for forming a medical opinion, particularly where there was no suggestion that the letter from Ms Kimber’s GP or the IVMC form were “either a sham or fraudulent”.
For these reasons the criticism of him was “unfounded and inappropriate”, she said.
“In my view it is extremely unlikely that any medical practitioner would certify that a patient had a medical contraindication by completing an IVMC form and providing the letters if they did not genuinely believe that the patient actually had a medical contraindication, as doing so would be fraudulent and would jeopardise the practitioner’s ability to practise medicine,” she said.
DP Dean described the decision as a “serious injustice to Ms Kimber that required remedy”.
More egregious, she said, was that the majority decision denied Ms Kimber the protections afforded by the Fair Work Act in part because of “an inference that she holds a general anti-vaccination position”.
“It is not in dispute that Ms Kimber did have the flu shot prior to the Condition. It is also not in dispute that an appropriately qualified medical practitioner advised her that she did in fact have a medical contraindication and that she should not have the flu shot. To label her an anti-vaxxer in these circumstances is highly inappropriate,” DP Dean said.
Implications for Employers
This Full Bench decision will likely prove a precedent-setting determination for future COVID-19 workplace vaccination disputes, with the majority drawing a clear line in the sand on a number of important matters.
This includes the ability for an employer to objectively assess the credibility or thoroughness of medical evidence provided by employees under the guise of circumventing vaccination mandates in the workplace – be it underpinned by public health orders or not.
It is also significant that the Full Bench majority signalled that providing a platform for those with anti-vaccination views to challenge lawful workplace vaccination directions would not be in the public interest.
This should provide employers with some confidence that the national workplace tribunal will default to supporting employers in issuing lawful directions designed to keep their employees and workplaces safe.
This does not mean that disputes about the ‘reasonableness’ of such directions won’t arise.
DP Dean’s dissenting decision should be noted as her views would likely be shared within cohorts of society and thus a business’s workforce.
It should be noted however that the Deputy President also used her dissenting decision to make a lengthy general statement about her views on government and employer vaccination mandates, much of which goes well beyond employment law.
This included that requiring people to be vaccinated against COVID-19 was in violation of human rights and akin to creating “medical apartheid”.
AMMA is on-hand to assist with all practical matters relating to COVID-19 workplace vaccinations. Contact your local office to speak with an expert Workplace Relations Advisor and/or email [email protected] for your copy of the AMMA Guide to COVID-19 Vaccines.