Aged care receptionist unsuccessful in her appeal after being dismissed for refusing flu vaccine but dissenting opinion of Deputy President Dean likens Covid vaccination issues to creating ‘a system of medical apartheid’

Whilst this recent decision of the Fair Work Commission Full Bench involves an influenza vaccination and not a Covid vaccination, it is of significance by reason of the principles addressed because of its attention to the adequacy of the medical evidence. These are considerations the Fair Work Commission would consider in a case involving an employee dismissed for refusing to take a Covid vaccine in similar circumstances to this case.

The case is also of significance due to the dissenting opinion of Deputy President Dean of the Fair Work Commission. Deputy President Dean was emphatic in her comments against the decision saying “Never have I more strenuously disagreed with an outcome in an unfair dismissal application” and more broadly in relation to COVID vaccination issues creating “a system of medical apartheid and segregation in Australia”.

Facts

The employer, Sapphire Coast Community Aged Care, arranged for influenza vaccinations to be administered to employees at Imlay House. Ms Kimber, the employee gave evidence to the effect that she had a first vaccination in 2015 but after a second vaccination in 2016 she developed a skin inflammation which she described as a severe allergic reaction. Ms Kimber refused vaccinations in 2017 – 2019.

In 2020, the NSW Minister for Health made the Public Health (COVID-19 Aged Care Facilities) Order 2020 (March Order)pursuant to s 7 of the Public Health Act 2010 (NSW). The March Order relevantly required 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”.

Ms Kimber refused the 2020 vaccination and her employer did not accept that she had a proper basis to do so, having regard to the limited medical evidence she provided.

Professor Wakefield, for the employer, concluded that Ms Kimber’s described condition in 2016 was most probably chronic dermatitis unrelated to the influenza vaccine, but even if it was a rare case of urticaria/angioedema caused by the vaccine, this was a treatable condition which did not constitute a reason not to administer the influenza vaccine. That is, taking Ms Kimber’s assertions about her skin condition at their highest, it did not constitute a medical contraindication.

Ms Kimber was eventually dismissed and she brought an unfair dismissal application, which failed.

Ms Kimber’s sought leave to appeal but failed by a majority (2/1). Noteworthy is the comment at [58]:

“The fact that Ms Kimber is unprepared, in the context of the current COVID-19 pandemic and the requirement for her to be vaccinated in order to work in residential aged care, to indicate a willingness to take a vaccine that is different to the influenza vaccine supports the inference that she holds a general anti-vaccination position. It also further points to the lack of utility in granting permission to appeal, since there could be no possibility of granting Ms Kimber’s preferred remedy of reinstatement absent an advance commitment from her to take the COVID-19 vaccine.”

The dissenting opinion is that of Deputy President Dean who said the following at [179] – [184]:

“[179] Research in the context of COVID-19 has shown that many who are ‘vaccine-hesitant’ are well educated, work in the health care industry and have questions about how effective the vaccines are in stopping transmission, whether they are safe to take during pregnancy, or if they affect fertility. 37 A far safer and more democratic approach to addressing vaccine hesitancy, and therefore increasing voluntary vaccination uptake, lies in better education, addressing specific and often legitimate concerns that people may hold, and promoting genuine informed consent. It does not lie in censoring differing opinions or removing rights and civil liberties that are fundamental in a democratic nation. It certainly does not lie in the use of highly coercive, undemocratic and unethical mandates.

[180] The statements by politicians that those who are not vaccinated are a threat to public health and should be “locked out of society” and denied the ability to work are not measures to protect public health. They are not about public health and not justified because they do not address the actual risk of COVID. These measures can only be about punishing those who choose not to be vaccinated. If the purpose of the PHOs is genuinely to reduce the spread of COVID, there is no basis for locking out people who do not have COVID, which is easily established by a rapid antigen test. Conversely, a vaccinated person who contracts COVID should be required to isolate until such time as they have recovered.

[181] Blanket 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 more than the absolute minimum necessary to combat the crisis and cannot be justified on health grounds. It is a lazy and fundamentally flawed approach to risk management and should be soundly rejected by courts when challenged.

[182] All Australians should vigorously oppose the introduction of a system of medical apartheid and segregation in Australia. It is an abhorrent concept and is morally and ethically wrong, and the anthesis of our democratic way of life and everything we value.

[183] Australians should also vigorously oppose the ongoing censorship of any views that question the current policies regarding COVID. Science is no longer science if it a person is not allowed to question it.

[184] 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.”

The decision of Kimber v Sapphire Coast Community Aged Care Limited [2021] FWCFB 6015 is available on the FWC website.

Bernard McAuley, Solicitor

McAuley Hawach Lawyers

11 Fennell Street, Parramatta NSW 2124

Telephone: (02) 9633 1826

Facsimile: (02) 9687 8114

Web: www.mcauleyhawach.com.au

Email: reception@mcauleyhawach.com.au 

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