Mandatory jabs & lawful directions – some guidance but far from settled

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

With the Deputy President Dean dissenting and stating, “Never have I more strenuously disagreed with an outcome in an unfair dismissal application”, the issue of mandatory vaccinations for employees is far from resolved.

The majority of Vice President Hatcher and Commissioner Riordan dismissed the appeal of Jennifer Kimber. Commissioner McKenna in the first instance hearing found against the applicant in her unfair dismissal application following the termination of her employment after refusing to comply with her employer’s direction to be vaccinated against influenza.

The applicant’s primary argument was she had an allergic reaction to previous influenza vaccinations. The applicant’s doctor had by way of response signed an IVMC form excluding the applicant.

However, the sufficiency of the exemption was found wanting because it did not satisfy a medical condition or episode that was a medical contraindication as required. Professor Wakefield called on behalf of the respondent gave evidence to this effect and accordingly, the applicant was unable without the vaccination to undertake the inherent requirements of her role.

The applicant’s view about the COVID-19 vaccinations did not assist and the majority found:

[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.

Otherwise, the majority did not consider there was public interest or other ground that warranted leave being granted.

 

David Cormack

Brisbane Barrister and Mediator

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