FWC ruling exposes divide on mandatory vaccines

A recent decision from the Fair Work Commission (FWC) on an employee who was fired for refusing a flu vaccine last year showed a division of mandatory jabs has penetrated the industrial relations tribunal. The employee in the said case, Jennifer Kimber, was working at the Sapphire Coast Community Aged Care when the New South Wales government made the flu vaccines mandatory. Kimber, whoever, claimed she had a severe allergic reaction to the vaccine in 2016 and went on to provide statements from a Chinese medical professional and a practitioner from Pambula Medical Centre to confirm her allergic incident.

Despite this, she was asked to stand down from her job on April 30, 2020, for being unable to present a medical certificate that exempts her from getting the flu shot. She later attended a meeting her a facility manager where she was told she could get fired if she did not comply to the instructions.

In her termination letter, she was told that the letters she obtained from medical practitioners were not sufficient as a "severe allergic reaction does not qualify as a medical contraindication under the order."

"After considering the advice from the Chief Medical Officer we take the view that your medical contraindication is NOT a qualifiable medical contraindication," the termination letter read as quoted in by the FWC.

Kimber appealed her termination, but the FWC backed the company's decision to fire her from the job. This decision was later upheld on Monday by a majority of a full bench that dismissed the former Sapphire worker's application 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," said the decision.

Read more: Fair Work Commission gives go ahead for vaccine refusal case

The Australian Industry Group (Ai Group) commended the ruling in a statement, stating that while it was about influenza shots, it addressed the circumstances of the pandemic.

"It is pleasing that the Full Bench has supported an employer’s right to mandate vaccinations where reasonable in the circumstances," said Innes Willox, Ai Group chief executive.

Dissent

Despite the ruling, one judge - FWC deputy president Lyndall Dean - had a dissenting opinion over the matter and described Kimber's situation as injustice.

"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," said Dean in the ruling.

According to Dean, she would have granted Kimber permission to appeal her termination and uphold it.

"I would have found that Ms Kimber was unfairly dismissed and would have reinstated her to her former position," she said.

Read more: Encouraging vaccines without a mandate

The official said all Australians, even those suspected to be anti-vaxxers, should still be entitled to the protection afforded by the Fair Work Act. She further acknowledged that part of the reasoning for the rejection of Kimber's appeal was related to COVID-19 vaccine mandates in the workplace - a policy she also slammed.

"COVID vaccinations, in accordance with the Australian Government's policy, must be freely available and voluntary for all Australians," she said, adding: "Mandatory COVID vaccinations, however, cannot be justified in almost every workplace in Australia."

According to Dean, such policies are lazy and fundamentally flawed approaches that should be rejected by courts when challenges.

"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," she said.

In her final comments, she urged Australians to reject what she described as a "medical apartheid" in Australia.

"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 pointed out.