COVID-19 | Public health orders and mandatory vaccinations in the workplace

In a widely reported decision handed down earlier this week, Jennifer Kimber v Sapphire Coast Community Aged Care [2021] FWCFB 6015, a Full Bench of the Fair Work Commission has taken the opportunity to provide its views on the mandating of flu and COVID-19 vaccinations under public health orders and what requirements must be met by an employee asserting that they cannot become vaccinated due to a medical contraindication.

In summary, the majority of the Full Bench has confirmed that it is not enough for an employee to merely assert that they have, or have previously had, a medical condition which prevents them from being safely vaccinated. In considering whether an asserted medical contraindication is a valid basis for exemption from vaccination, the Full Bench has found that an employer may consider expert medical evidence.

Facts

Ms Kimber had most recently been employed as a receptionist by Sapphire Coast Community Aged Care (Sapphire Coast) and had been employed since April 2013. Commencing in 2020, various public health orders (PHO) were made by the New South Wales Government about the requirement to receive flu vaccinations for people who worked at or otherwise attended NSW residential aged care facilities. Specifically, in March 2020 a PHO was released stating that an operator of a residential aged care facility must take all reasonable steps to ensure that a person did not enter or remain on the premises of an aged care facility unless they had an up to date vaccination against the flu, if the vaccination was available to that person.

Ms Kimber had previously declined to have a flu vaccination in 2017, 2018 and 2019, and no action had been taken by Sapphire Coast as a result. Due to the March 2020 PHO, Sapphire Coast sought to mandate flu vaccinations in the workplace for all of its employees, unless the employee had a specific medical exemption supported by evidence, and notified all of its employees of its decision accordingly. In response, Ms Kimber initially provided Sapphire Coast with a letter from a practitioner in Chinese medicine, who stated that Ms Kimber ‘would prefer to not have the flu vaccination’ and that the practitioner was prescribing her with immune boosting and anti-viral herbs in order to prevent COVID-19 and the seasonal flu.

Sapphire Coast did not consider that Ms Kimber had a proper basis to refuse the flu vaccination, and as a result, it stood Ms Kimber down from her employment on the basis that she was unable to produce a medical certificate stating that she had a contraindication to receiving the vaccination. At a meeting in May 2020, Ms Kimber provided a letter of support from her GP stating that she had ‘a medical contraindication to the Influen[z]a Immunisation…’ and that she had had ‘…a severe allergic reaction to the flu shot in the past and has been advised not to have it again.’ Ms Kimber then commenced a period of paid leave, indicating that she would like to wait and see whether the vaccination requirement may change.

On 1 June 2020, Ms Kimber sent an email to Sapphire Coast noting that the March 2020 PHO was due to expire on 22 June 2020, and advising that she would return to work after the end of her current period of paid leave on a part-time basis. On 22 June 2020, a new PHO was issued, which relevantly continued the requirement for employees to be vaccinated against the flu in order to be able to enter or remain on the premises of a residential aged care facility, unless an employee was able to present a medical contraindication form issued by medical practitioner.

Ms Kimber arranged to receive a further letter of support from her GP, which provided more specific details in relation to her alleged severe allergic reaction to a previous flu vaccine, together with two undated photos showing the reaction which was said to have occurred. In addition, the GP completed a medical contraindication form, but importantly did not indicate any of the specific contraindications listed on the form, instead completing the ‘other’ box and referencing severe facial swelling and a lasting rash.

Ms Kimber was then invited to a further telephone meeting with Sapphire Coast, in the form of a show cause discussion, where she was requested to provide any additional information which needed to be considered by Sapphire Coast. Based on the information provided, Sapphire Coast was ultimately not satisfied that Ms Kimber’s medical evidence constituted a medical contraindication as outlined in the June 2020 PHO. As a result, Sapphire Coast terminated Ms Kimber’s employment on the basis that without being vaccinated against the flu, she could not fulfil the inherent requirements of her role.

Ms Kimber subsequently filed an application for unfair dismissal in the Fair Work Commission (FWC).

Decision at first instance

At first instance, Commissioner McKenna supported Sapphire Coast’s decision and found that the termination of Ms Kimber’s employment was not harsh, unjust or unreasonable.

The Commissioner found that there was not sufficient evidence to support a finding that Ms Kimber had previously suffered some form of adverse reaction to the flu vaccination in 2016 and Sapphire Coast had taken ‘an objectively prudent and appropriate approach’ in dealing with these issues. While that decision at first instance was made in the context of the COVID-19 pandemic and PHOs prompted by the pandemic, the decision itself did not deal with COVID-19 vaccinations directly or any requirement to mandate those vaccinations as such. Ms Kimber sought to appeal this decision.

Full Bench on appeal

The FWC may only grant permission to appeal an unfair dismissal decision where it considers that it would be in the public interest to do so.

Majority decision

The majority of the Full Bench (Vice President Hatcher and Commissioner Riordan) determined that it was not appropriate to grant permission to appeal in this matter. In reaching that position, the majority decision made a number of significant observations:

• under the PHO it is not sufficient that a medical contraindication certificate is signed by a medical practitioner, but rather the medical practitioner must certify that the employee actually has what is, in objective terms, a medical contraindication to the vaccination. This is confirmed by the terms of the approved form itself which identified four accepted medical contraindications and then provided the option for a medical practitioner to identify any other type of contraindication which may be applicable. This last option, however, was not intended to give carte blanche to a medical practitioner to simply fill in any medical condition or episode at their discretion. In this case, and taking Ms Kimber’s assertions about her previous skin condition at its highest as well as the medical evidence adduced by Sapphire Coast, the majority did not consider that the medical evidence of Ms Kimber’s medical condition was sufficient to constitute a medical contraindication to the flu vaccine;
• there was a real doubt as to the credibility of Ms Kimber’s position, namely that she objected to taking the flu vaccine because of an alleged previous allergic reaction. This doubt arose in the majority’s mind as a result of Ms Kimber not seeking any medical treatment in relation to her skin condition in 2016, the lack of any reference to a previous adverse reaction in her initial correspondence with Sapphire Coast, that she failed to report or disclose any adverse reaction until after she was stood down from her employment, and what they perceived to be Ms Kimber’s general anti-vaccination position;
• Ms Kimber also sought reinstatement as a remedy upon the rehearing of her matter. Shortly before hearing the appeal, the Federal government announced that all residential aged care workers would be required to receive, as a minimum, a first dose of COVID-19 vaccine by 17 September 2021. The majority noted that Ms Kimber’s stated unwillingness to take the COVID-19 vaccine supported the inference that she held a general anti-vaccination position. As a result, this pointed to the lack of utility in the FWC granting permission to appeal, as there could be no possibility of Ms Kimber receiving reinstatement into her role without taking that vaccination; and
• the majority did not consider it to be in the public interest to permit the appeal, on the basis that it did not intend, in the circumstances of the current COVID-19 pandemic, to give any encouragement to ‘a spurious objection to a lawful workplace vaccination requirement’.

Minority decision

The dissenting decision of Deputy President Dean has already received some publicity. In her judgement, DP Dean stated that she had never more strenuously disagreed with an outcome in an unfair dismissal matter and that the decision at first instance manifested a serious injustice to Ms Kimber that required remedy.

In forming her dissenting view, DP Dean found that there was no reasonable and lawful direction given by Sapphire Coast to Ms Kimber, and that there could not be one in circumstances where Ms Kimber had a valid exemption. DP Dean stated that it was not open to Sapphire Coast to:

• form the view that the medical contraindication form completed on Ms Kimber’s behalf did not come within the relevant exemption; or
• make their own diagnosis or form their own view as to whether or not the reasons given on the form were valid.

DP Dean took the view that all that was required for Ms Kimber to come within the exemption from vaccination was to provide a valid, completed medical contraindication form. DP Dean based her view, in part, on the basis that a medical practitioner would not complete a medical contraindication form or provide a letter of support if they did not generally believe that the patient had a medical contraindication.

DP Dean noted that the majority decision raised the issue of mandatory COVID-19 vaccinations in workplaces and took an opportunity to also deal with this issue. DP Dean’s views in this regard were made in the context of her opinion that COVID-19 vaccinations (unlike other vaccinations) are not designed to stop COVID-19, but rather to reduce the symptoms, the risks of COVID-19 are less serious for those who are young and are otherwise healthy, that most people diagnosed with COVID-19 recover without any medical treatment, and that the COVID-19 vaccinations themselves have only been provisionally approved for use in Australia and that they are still part of a clinical trial.

DP Dean expressed the view that employers could continue to meet their health and safety obligations, including to minimise the risk of exposure to COVID-19 in the workplace, by undertaking testing as a control measure rather than requiring vaccinations.

Controversially, DP Dean concluded her dissenting decision by making some strong statements about Australia’s COVID-19 strategy, stating that:

“[b]lanket rules, such as mandating vaccinations for everyone across a whole profession or industry regardless of the actual risk, fail the tests of proportionality, necessity and reasonableness. … It is a lazy and fundamentally flawed approach to risk management and should be soundly rejected by courts when challenged. … All Australians should vigorously oppose the introduction of a system of medical apartheid and segregation in Australia. … Australians should also vigorously oppose the ongoing censorship of any views that question the current policies regarding COVID. … Finally, all Australians, including those who hold or are suspected of holding “anti-vaccination sentiments”, are entitled to the protection of our laws, including the protections afforded by the Fair Work Act. In this regard, one can only hope that the Majority Decision is recognised as an anomaly and not followed by others.”

It is important to note that an employer will need to rely upon the majority decision should they face similar legal challenges in the future. Although DP Dean’s dissenting decision has provided an alternate view in respect of mandating vaccinations in the workplace, those views are inconsistent with the position adopted by the Federal government, State and Territory governments, and the published positions of the Fair Work Ombudsman and Safe Work Australia.

Ms Kimber’s legal representatives have already indicated that they intend to appeal this Full Bench decision to the Federal Court.

Impact for employers

While this Full Bench decision, strictly speaking, only needed to deal with flu vaccinations and the mandating of those vaccinations in the context of PHOs, the Full Bench of the FWC has taken the opportunity to express its views more broadly in relation to the mandating of COVID-19 vaccinations in the PHO context.

Employers should consider the following points in managing vaccinations in the workplace in the context of PHOs:

• There are currently a variety of PHOs in the different Australian states which mandate that an employee must be vaccinated in order to continue performing work, or that they may not enter a workplace unless they are partially or fully vaccinated. Those PHOs generally provide an exemption from the requirement where an employee is able to show that they have a medical contraindication to the relevant vaccination.
• Based on the majority decision, it is not enough for an employee to merely assert that they have, or have previously had, a medical condition which prevents them from being safely vaccinated. For example, it will not be sufficient for an employee to assert that they have previously had an adverse reaction to a vaccination so as to meet those requirements.
• This decision now establishes that it will also not be sufficient for an employee to rely upon a letter of support or medical certificate issued by their GP which seeks to simply repeat the employee’s assertion or to list or categorise alleged previous adverse reactions. Rather, the majority decision takes the view that in completing a medical contraindication form, where an employee does not have any of the generally recognised contraindications (such as a previous anaphylaxis reaction), a medical practitioner cannot merely assert a different medical contradiction. There must also be a more widely recognised medical basis for the practitioner holding that view.
• In essence, the majority decision confirms that it is open to an employer (and subsequently open to the FWC) to consider and to take into account expert medical evidence as to whether or not the asserted medical contraindication is valid and should be accepted as forming a lawful basis for exemption from vaccination. Where expert medical evidence does not support the asserted medical contraindication, an employer can decide to terminate the employment of the employee on the basis that they cannot perform the inherent requirements of the role while they remain unvaccinated.

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Authored by:

Brett Feltham, Partner
Diana Diaz, Special Counsel
Sera Park, Associate