By Sonia Hickey: Sydney Criminal Lawyers Blog.
Last week, a full three member bench of the Fair Work Commission refused former aged-care facility receptionist, Jennifer Kimber’s, application to appeal a single member decision in April 2021 which found she had not been unfairly dismissed by her former employer, who had terminated her employment because she did not obtain a COVID-19 vaccine.
The initial decision
On 29 April 2021, Commissioner McKenna delivered a decision relating to Ms Kimber’s initial unfair dismissal claim.
Ms Kimber’s former employer, Sapphire Coast Community Aged Care, submitted during the proceedings that it was acting pursuant to government advice, and what it considered to be the requirements of a New South Wales government public health order, by mandating a COVID vaccine for all of its workers.
To support its position, the employer noted that the state’s health minister had publicly announced that the only acceptable reasons for not having the vaccine in the context of aged care work were proof of anaphylaxis or Guillain-Barre Syndrome following vaccination, or being on check point inhibitors for cancer.
Ms Kimber, on the other hand, submitted that she had suffered adverse effects to a work mandated influenza vaccine in 2016, and refused to have a COVID vaccine for that reason.
She provided a letter from a Chinese medicine practitioner who started treating her with anti-viral and immune boosting herbs within 10 months of the 2016 vaccine.
The practitioner said she would ‘prefer’ that her client ‘not have the flu vaccination’.
A general practitioner also provided a statement which opined that Ms Kimber:
‘has a medical contraindication to the Influenza Immunization. She has had a severe allergic reaction to the flu shot in the past and has been advised not to have it again’.
Commissioner McKenna was critical of the medical documentation, noting the delay between the 2016 vaccination and initial consultation with the Chinese medical practitioner, as well as the fact the GPs letter was in the form of a ‘letter of support’, and that the GP did not review medical documentation nor refer Ms Kimber to an immunologist.
The Commissioner found that Ms Kimber’s attendance at work without having a COVID vaccine could have amounted to a failure to comply with a public health order, and the refusal therefore rendered her incapable of doing her job.
The Commissioner further noted that her receptionist duties could not be fulfilled externally, ultimately finding that Ms Kimber’s dismissal was not harsh, unjust or unreasonable – and therefore did not amount to an unfair dismissal.
The subsequent application
Ms Kimber’s subsequently applied to the full three member bench of the FWC for permission to appeal against Commissioner McKenna’s decision.
However, the full bench ultimately refused the application in a 2:1 judgement on the basis that the FWC can only grant permission to appeal where it considers that such an appeal would be in the public interest, and that – according to the majority – it was not in the public interest to allow Ms Kimber to appeal the initial decision against her.
While the judgment brings the FWC proceedings to an end, Ms Kimber’s lawyers say their client will now take the case to the Federal Court of Australia.
The dissenting judgment
But what is perhaps the most notable about the case before the full bench is the powerful dissenting (minority) judgment of Deputy President Lyndall Dean, who remarks [at para 65]:
Never have I more strenuously disagreed with an outcome in an unfair dismissal application. The Decision manifest a serious injustice to Ms Kimber that required remedy. More egregious, however, is that the Majority Decision has 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”
‘No jab, no job’
The Deputy President cautions employers about implementing policies which mandate Covid-19 vaccinations, favouring freedom of choice is solidarity with those who have expressed concerns over ‘no jab, no job’ mandates, not just across NSW, but in Victoria and Queensland too.
While the Kimber vs Sapphire Coast case had nothing to do with Covid-19 vaccinations, DP Dean noted that it did raise important issues around the issue of mandatory vaccinations and took the opportunity to deal with this in relation to Covid.
Her views were made in the context of the fact that we have, as a nation, known since their introductions that Covid-19 vaccinations would reduce the severity of symptoms for sufferers, but were not designed to stop transmission of the virus.
She also draws attention to the fact that at this point in time, the Covid-19 vaccinations have only been provisionally approved for use in Australia and that they are still part of a clinical trial, which raises issues around what constitutes fully informed consent, as well as consent to participate in what is currently a ‘medical trial ‘ of vaccinations.
Rapid antigen testing — a potential alternative
DP Dean also expressed the view that employers could meet their health and safety obligations to minimise the risk of exposure and spread of Covid-19 in the workplace by allowing employees the less invasive options of regular testing via rapid antigen test. The Therapeutic Goods Association has recently approved rapid-antigen home testing kits for sale in Australia and they should be available within the coming weeks.
DP Dean also noted that The Australian Federal Government’s position is that vaccinations should be voluntary.
Furthermore, she pointed to a joint statement issued by The Australian Council of Trade Unions (ACTU) and the Business Council of Australia (BCA) which it acknowledged the Australian Government’s position on voluntary vaccinations and confirmed “for the overwhelming majority of Australians, your work or workplace should not fundamentally alter the voluntary nature of vaccination”.
In addition she mentioned that the Fair Work Ombudsman publicly stated that employers will need to have a “compelling reason” before requiring vaccinations, and that “the overwhelming majority of employers should assume that they can’t require their employees to be vaccinated against coronavirus”.
In her final comments, she also noted that “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. … 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 because… it is an abhorrent concept and is morally and ethically wrong, and the anthesis of our democratic way of life and everything we value. …She deplored the censorship of any views that question the current policies regarding Covid, and emphasised that “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.”
A voice of reason in the social debate
As has been pointed out several times since the transcript was made public, these are only DP Dean’s opinions, but they are a refreshing interjection into the current social debate on mandatory vaccinations, at a time when we are drowning in harsh rules and regulations and under increasing pressure to get the jab, and as several legal challenges make their way through the courts.
She also highlighted research studies, such as those cited in various works by University of Guelph philosophy professor Maya Goldenberg, which show that people who are “vaccine hesitant “are often educated and affluent, and yet mistrusting. And gaining this trust and increasing vaccine confidence lies in further education, addressing their questions and issues, rather than finger-pointing, name-calling, labeling, coercion and enforcement.
Many Australians who have vaccine hesitancy or don’t want to vaccinated are already being discriminated against, sometimes even portrayed as conspiracy theorists and anti-vaxxers, along with an implication that their views are not based on credible information, and are therefore irrelevant and irresponsible.
But the overriding issue is not about vaccinations, it’s about enabling individuals to maintain the right to choose what to do with their own bodies.
It should also be remembered that opposing views add to the robustness of the conversation, and enriches the information that’s circulating the public domain which only enhances people’s ability to weigh up the many points of view, and therefore, have more confidence in their ability to make an informed choice.
Sonia Hickey is a freelance writer, magazine journalist and owner of ‘Woman with Words’. She has a strong interest in social justice, and is a member of the Sydney Criminal Lawyers® content team.
Sonia Hickey is one of A Sense of Place Magazine’s favourite Australian journalists. Other pieces of hers we have published can be found here.
