By Rachael Sutton, Partner, Louise Cantrill, Partner and David Cooper, Associate
In our previous article we reported on the decision of the Fair Work Commission (FWC) decision in Kimber v Sapphire Coast Community Aged Care Ltd  FWC 1818 in which we acted for the employer. That decision was the subject of a recent appeal to a Full Bench of the FWC.
Ms Jennifer Kimber was at the time of her dismissal employed as a receptionist by Sapphire Coast Community Aged Care Ltd (Sapphire), who operates aged care facilities in NSW.
In April 2016 Ms Kimber was administered an influenza vaccination by her employer. Her evidence was that she had a severe reaction to the vaccine, which included a ‘major and debilitating skin inflammation’ which was said to cover her face, neck and affected her internal organs, for many months.
In March 2020 the NSW Minister for Health made the Public Health (COVID-19 Aged Care Facilities) Order 2020 (March PHO) which required an employee of the operator of an aged care facility not to enter the premises of the facility if they did not have an up to date vaccination against influenza ‘if the vaccination was available to the person’. The March PHO also required that the operator of the facility take all reasonable steps to ensure that a person did not enter or remain on the premises in contravention of the vaccine requirement. The Minister was also empowered under the PHO to make an exemption if it was necessary to protect the health and well-being of the residents or staff of the facility.
As a consequence of the March PHO, Sapphire advised their staff that come 1 May 2020, unvaccinated staff would not be allowed to work in aged care. Ms Kimber did not take the vaccine, and provided a letter from a practitioner in Chinese medicine advising that she preferred not to have the vaccine and then provided a letter of support from her general practitioner which stated that she had a medical contraindication to the influenza vaccine based upon previous adverse reaction.
In June 2020 the NSW Minister for Health made the Public Health (COVID-19) Aged Care Facilities) Order (No 2) 2020 (June PHO) which continued the requirements of the prior PHO. The June PHO allowed for a medical exemption where the individual could provide an document in approved form issued by a medical practitioner which certified that the individual had a medical contraindication to the vaccine, and was therefore exempt from the vaccine requirement. In light of the new PHO, and in the absence of a medical contraindication form, Sapphire informed Ms Kimber that it considered that she was not able to perform the inherent requirements of her role.
Ms Kimber then supplied her employer with the Influenza Medical Contraindication Form completed by her doctor, in which the doctor certified that she had an ‘other medical contraindication’ which was said to be ‘Severe Facial Swelling and rash lasting 10 months from vaccine’.
Sapphire determined that the form provided did not constitute a valid medical contraindication, relying on a media release by the Chief Medical Officer and the Australian Immunisation Handbook. Ms Kimber was then dismissed from her employment, and subsequently brought an unfair dismissal claim challenging her dismissal.
The Decision at First Instance
At first instance, Commissioner McKenna found that Sapphire had a valid reason for the dismissal, being that:
- While Sapphire had not factually given a direction for Ms Kimber to be vaccinated, it had nevertheless communicated vaccination as being a requirement for her attendance at the workplace as a result of the PHOs;
- If a direction had been given to Ms Kimber to be vaccinated such a direction would have been lawful and reasonable in light of the PHOs; and
- Because Ms Kimber was not permitted to enter or remain at the workplace without vaccination due to the PHO, she could not perform her receptionist role or the inherent requirements of her position.
As a result, the Commissioner then held that the dismissal was not harsh, unjust or unreasonable.
On 27 September 2021 a Full Bench of the FWC determined an appeal in the matter, concluding by a majority of 2-1 (DP Dean dissenting) not to grant permission to appeal.
The Majority Decision of Vice President Hatcher and Commissioner Riordan observed:
- Ms Kimber’s contention before Commissioner McKenna and on appeal was to the effect that the IVMC form signed by Dr Mackay was sufficient, by itself, to make the vaccination requirement inapplicable because it met the condition in clause 6(1)(d)(ii) of the June Order, however the proper construction of the exemption in the June PHO was that the exemption operated only where a medical practitioner certified that the relevant person actually has what is, in objective terms, a medical contraindication to the vaccination.
- The notion that a treating doctor was permitted carte blanche to simply fill in any medical condition into the exemption form as a medical contraindication is rejected. It therefore follows that it was not sufficient for Ms Kimber’s doctor to certify her as meeting the exemption criteria on the basis of a medical condition that was not, objectively determined, a medical contraindication.
- The evidence conclusively demonstrates that the condition Ms Kimber’s doctor had certified, being the ‘Severe Facial Swelling and rash lasting 10 months from vaccine’ was not a valid medical contraindication for the influenza vaccine, relying primarily upon Australian Immunisation Handbook and expert evidence.
- As a result of Ms Kimber not having a valid exemption to the PHO, she was at the time of her dismissal legal prohibited from working at her workplace, and that this made the continuation of her employment untenable.
In refusing leave to appeal, the Majority also said in respect to whether the appeal was in the public interest:
We consider that the public interest weighs 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.
Both Commissioner McKenna and the Majority on appeal placed significant weight on the effect of the PHOs, acknowledging that employers are lawfully required to comply with their terms and failure to do so would be an offence (which comes with the risk of fines and imprisonment).
The Majority further confirmed the view that the effect of PHOs may be that an employee is not able to perform the inherent requirements of their role in light of limited exemptions under PHOs and confirms that employers can be justified in terminating employment in such circumstances.
The Majority decision confirms that an exemption for medical contraindication must be determined objectively and must be a legitimate medical contraindication, which in this case, is referable to objective tests and the Australian Immunisation Handbook to determine a contraindication, rather than only constituting any one particular doctor’s subjective view as to what may constitute a medical contraindication.
These issues surrounding mandatory vaccination are particularly important with PHOs across the country mandating COVID-19 vaccinations for certain industries, categories of workers and workers in specific areas where lock downs and infections are continuing.
Employees may seek exemptions from having the COVID-19 vaccination on the basis of medical contraindications (and pregnancy in some states). However, this decision means that evidence of a medical contraindication must be based on those matters identified by the latest medical guidance for COVID-19 vaccinations.
In dissent, however, Deputy President Dean concluded that it was inappropriate for the employer to question a medical certificate issued by a medical professional, and strenuously disagreed with the decision of the majority. This is in contrast to decisions in which the court and commission has supported employers arranging for independent medical opinions or challenging the content of medical certificates provided by employees when there is doubt or uncertainty as to whether an employee was actually unwell (Anderson v Crown Melbourne Ltd  FMCA ) or was fit to perform the inherent requirements of their position (Daniel Cole v P Q Australia Pty Ltd  FWC 1166).
The decision also highlights the potential for disputation in the workplace and litigation in respect to the implementation of mandatory vaccination policies by employers other than in accordance with PHOs, by issuing directions to employees to be vaccinated and for employees to provide information as to their vaccination status.
Employers seeking to implement mandatory vaccination policies will need to have regard to:
- Their specific workforce, employee roles and responsibilities and how their interact with the public, clients, contractors and others in the course of their work;
- their obligations to employees under work health and safety and anti-discrimination laws,
- consultation requirements,
- what exemptions are currently available on medical or other grounds with reference to the specific PHO,
- how employees recovering from COVID-19 infection (and not able to be vaccinated) will be managed under those policies; and.
- a fair and transparent process for managing exemptions and what the outcome will be in the event of non-compliance.
The Applicant’s lawyers immediately indicated her intention to appeal the decision.