By Olivia Perry and Robby Magyar
To vax or not to vax? That is the question currently dividing businesses and employees across the country, with Governments implementing various forms of mandatory vaccination-based public health orders to address COVID-19 transmission rates in particular industries and the community as a whole.
This divide and the debate around mandatory vaccination took a particularly heated turn recently in the appeal decision of Kimber v Sapphire Coast Community Aged Care Ltd  FWCFB 6015 before the Full Bench of the Fair Work Commission (FWC), where Deputy President Lyndall Dean implied such orders and policies were a system of “medical apartheid and segregation” in her dissenting judgment. The other two FWC Commissioners found to the contrary, considering that it was not in the public interest to grant permission to appeal as there was no “question of law or principle that is of wider application”, that no error could be found in the original decision, and that it was reluctant to encourage such anti-vaxxer positions.
The case related to an employee who had been terminated from her role as a receptionist at a nursing home in NSW after refusing a flu shot on multiple occasions. This was following regulations from the New South Wales Government making flu shots mandatory and transmission rates of COVID-19 increasing.
The employee noted she had a severe allergic reaction to a flu shot in 2016 and presented a letter from a practitioner of Chinese medicine to her employer as evidence. She also presented another letter from a General Practitioner outlining her allergic reaction, and wrote to the Chief Executive of her nursing home to outline her opposition to getting the flu shot. Although the employer had accepted her refusals in previous years, as a result of the COVID-19 pandemic and the Government requirements, it made the flu vaccination mandatory. The employee’s employment was terminated when she continued to refuse the vaccine.
Ultimately the FWC blocked the receptionist’s application to appeal against her dismissal, finding the employee “held a broader anti-vaccination position” after she “Googled all sorts of stuff” concerning side effects of vaccines and noting that they did 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 dissenting judgment however, Deputy President Dean disputed the suggestion the receptionist was an anti-vaxxer and believed the appeal should have been allowed. “Blanket rules,” she advised: “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.” The Deputy President said that she hoped the decision made by the majority of the Commissioners in this case is not followed in future cases.
This matter comes at a time where the country is seeing frequent updates to mandatory vaccinations regulations and public health orders and demonstrates that the mandatory vaccination debate rages at all levels of business, including within the Fair Work Commission itself.
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Olivia Perry is a qualified Workplace Relations Consultant at FCB Group (our parent company) and HR Assured. She regularly provides advice to a large range of clients in relation to workplace laws and management of complex workplace matters.
Robby Magyar is a Workplace Relations Consultant at HR Assured, who has been assisting clients across Australia from a range of industries and businesses with their work-related COVID-19 questions.