Kimber v Sapphire Coast Community Aged Care [2021] FWCFB 6015

An Appeal to the Full Bench of the Fair Work Commission in NSW has been unsuccessful, with the Full Bench majority upholding the dismissal of a receptionist at a NSW aged care facility who refused to get a flu vaccination shot.

This decision will surely capture a lot of attention, with the Fair Work Commission now seemingly backing the right of a business to sack an employee who refuses to get a flu shot as required under a public health order (as was the case in this instance).

In April, Commissioner Mckenna found the worker’s dismissal was not unfair and rejected the worker’s unfair dismissal application on the basis that she did not provide evidence of an allergy she claimed had prevented her from getting vaccinated. When considering whether the dismissal for failure to follow a “lawful and reasonable direction” was valid, Commissioner McKenna found that the employer had not in fact “directed” the employee to have the flu vaccination. Nonetheless, the employer had made it clear that having an up-to-date flu shot was necessary for attendance at work. The Commissioner found that if a direction had been given to the employee to be vaccinated, it would have been lawful and would have effectively reflected what was the law concerning employees working in NSW residential aged care facilities. Such a direction would also have been reasonable. The Commissioner also found that without the flu vaccination, the employee could not perform the inherent requirements of her job because she was not permitted to be on aged care premises under the existing public health orders. There was no evidence that Ms Kimber could have worked from home.

On Monday 27 September 2021, the majority of the full bench upheld this original decision and dismissed the worker’s application to appeal.

There were some interesting remarks made by both the majority of the Full Bench and the one dissenting Commissioner. The majority stated: ‘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’. In her minority dissent, Deputy President Dean said the decision had denied the worker protections under the Fair Work Act ‘in part because of an inference that she holds a general anti-vaccination position. Never have I more strenuously disagreed with an outcome in an unfair dismissal application’.

This is the Fair Work Commission’s first Full Bench decision on the issue of vaccination mandates to be handed down during the pandemic. Albeit, the decision relates to the flu vaccination and current mandates surrounding that; not the COVID-19 vaccination. We do note that there has been some suggestion that this decision will be appealed to the Federal Court, however at the time of writing this article, no appeal has been lodged.

This decision will provide a degree of comfort to employers who are considering mandating vaccination policies in their workplace, where the policies are lawful and reasonable. However it is very important to note that this particular decision provides guidance on the type of evidence required to prove a medical exemption to a public health order. Therefore, it may not provide a ‘catch all’ ruling for all employers looking to terminate employees who refuse vaccines. Some industries and workers may not be covered by public health orders mandating vaccines and accordingly, employers need to ensure that their directions and lawful and reasonable in the circumstances, which requires consideration of a number of factors concerning workplace health and safety, anti-discrimination and the risk level in the workplace.

Whilst this decision provides some guidance in the area, it may not provide authority to employers mandating the COVID-19 vaccine outside of a public health order. For this reason, we encourage all employers who are considering mandating the vaccine to contact us for a confidential discussion.

We note the government’s recent announcement that all authorised workers will need to be vaccinated. This means that there will be a major increase to the industries and workers that will be covered by mandatory vaccination directions. Accordingly, employers in these industries will need to start preparing their communications to employees and considering a vaccination policy.

Please contact our employment law team if you need assistance with mandatory vaccine requirements.

Francine Hoyne-Clancy
Senior Associate, Workplace Relations/Employment Law