A Full Bench of the Fair Work Commission has refused an appeal of an unfair dismissal application related to an employee's defiance to obey a mandated workplace vaccination policy. The decision of Jennifer Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWCFB 6015 has confirmed that a vaccination direction issued by Sapphire Community Aged Care was both lawful and reasonable in the circumstances, and that the employee's noncompliance to be vaccinated rendered her unable to perform the inherent requirement for the role.
Background
Sapphire Aged Care (“Sapphire”) dismissed Jennifer Kimber (Ms Kimber) who was employed as a receptionist at one of their aged care facilities after she refused to obey a public health order issued by the New South Wales government in 2020 that made influenza vaccinations mandatory for employees of aged care facilities.
Ms Kimber claimed that she had developed an acute allergic reaction to the inoculation in previous years which rendered her exempt from the mandated direction. Sapphire sought medical support from Ms Kimber, however governed that the diagnosis of ‘severe facial swelling and rash lasting ten months from vaccine' was not a medical contraindication for the influenza vaccine and therefore, not characterised as an exemption. Accordingly, Sapphire dismissed Ms Kimber and later terminated her employment on the basis that she had failed to comply with a lawful and reasonable direction to be vaccinated against influenza.
Ms Kimber filed an unfair dismissal application in the Fair Work Commission which upheld the dismissal on the basis that Ms Kimber's medical evidence was an ‘improbable' consequence of the influenza vaccination. The Commission held that Sapphire's decision to terminate Ms Kimber's employment was not harsh, unjust or unreasonable given that she would be unable to perform the inherent requirements of the position, namely that she would not be permitted to enter or remain at the aged care facilities as directed by the government.
Ms Kimber appealed to the Full Bench on the grounds of lack of procedural fairness, but the majority of the Full Bench dismissed the appeal on the basis that “in the current circumstances of the COVID-19 pandemic, no encouragement should be given to the objection of a lawful workplace vaccination requirement”.
Key takeaways
While influenza and COVID-19 differ substantially, the guidance offered by the Kimber case offers valuable insights into the applicable legal considerations that the Fair Work Commission may adopt when considering workplace mandatory COVID-19 vaccination directions and unfair dismissals.
The dismissal of Ms Kimber was found not to be unfair, however, this does not mean that employers will always be able to lawfully and reasonably direct their employees to receive the vaccination and the circumstances of the workplace and any applicable government health orders will be relevant.
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