Infringement of human rights or necessary for public safety…the majority of the Full Bench in Kimber decline to give any encouragement to “a spurious objection to a lawful and reasonable requirement.”
A majority of the Full Bench of the Fair Work Commission refused leave to Ms Kimber to appeal an earlier decision by the Commission that her employer’s flu vaccination requirement was an inherent requirement of her job, which justified the termination of her employment (Jennifer Kimber v Sapphire Coast Community Aged Care Ltd).
In the Commission’s first decision,  Commissioner McKenna found that although the employer aged care facility, did not give “a direction” to Ms Kimber (who worked as a clerk and at the reception counter) to receive a flu vaccination, the requirement to have a flu vaccination was essential for her job.
Critical to Commissioner McKenna’s reasons, cited by the Full Bench, were the following factors –
- Ms Kimber’s complaint of a major and debilitating skin inflammation condition following her flu vaccination in April 2015 (which formed a basis for her refusal in 2021), was not supported by any contemporaneous medical information nor was there any evidence that Ms Kimber sought any medical treatment at the time;
- On 22 June 2020, NSW Minister for Health, Mr Hazzard, issued a Public Health (COVID-19 Aged Care Facilities) Order (No.2) 2020 which required Aged Care employees to be vaccinated against influenza to be able to enter and remain on premises and provided for an exemption for persons with medical contraindications to the vaccination.
- Ms Kimber’s general practitioner “crossed the box” in the required Government form indicating “other medical contraindications” noting “severe facial swelling and rash lasting 10 months from the vaccine.” Although the Facility’s CEO relied on the Aged Care Minister’s Media Release regarding exemptions for vaccinations because of “absolute contraindications,” the Facility nonetheless was entitled to not accept Ms Kimber’s own GP report.
- McKenna, C accepted the employer’s specialist immunologist expert, who gave evidence that skin rashes may represent an allergic reaction to skin vaccines were usually limited in duration and extraordinarily uncommon to last more than ten months; that Ms Kimber’s rash was likely to be unrelated to influenza immunisation and represented a chronical dermatitis and that there were very few contraindications to influenza vaccination.
- The Federal Government’s Australian Immunisation Handbook was also relevant because it stated that serious AEFIs (Adverse Effects Following Immunisation) were rare, and it is even rarer that AEFIs are caused by vaccines with strong epidemiological evidence indicating that there is no cause nor association between vaccinations and many diseases or conditions that have been suggested to relate to vaccines. Also, AEFI’s will usually not constitute a “vaccine contraindication,” which is defined as a reason why a vaccine should not be given.
- In refusing leave to appeal, the Full Bench noted that –
- Ms Kimber had an arguable case that she was exempt from an up-to-date flu influenza vaccination, however she was unable to establish a “medical contraindication” to the vaccination and the mere completion by her GP of the approved form on the basis of her own report, was insufficient.
- Her condition of severe facial swelling and rash lasting for 10 months from the vaccine was not a “medical contraindication;”
- The general practitioner could not objectively certify Ms Kimber as having any medical contraindication based on her report alone.
- The employer’s reliance on the Media Release alone was not necessarily prudent, however its reliance on the Australian Immunisation Handbook was reasonable.
- In a final observation, Ms Kimber generally held an “anti-vaccination position” evidenced by her silence about seeking any medical treatment at the time of her alleged reaction in 2016 and general unwillingness to receive the COVID-19 vaccination if required, to return to work.
Decision of Deputy President Dean
7. Deputy President Dean gave dissenting reasons, likely given with one eye on the current mandatory vaccination debate in workplaces. Unlike the majority DP Dean would have accepted the GP’s evidence, which was ignored by the CEO who relied on a Medical Release which was not law. Ms Kimber’s GP had a reasonable basis for forming his medical opinion, and there was no suggestion his report was a scam or fraudulent.
8. The June NSW Public Health Order exemption would have applied to Ms Kimber even covering her report of her allergic reaction in 2016. Ms Kimber should not be criticized for not reporting or having medical evidence in 2016 because the flu vaccination was not mandatory at that time. The employer’s expert opinion was not definitive because an adverse reaction from the vaccination could not be ruled out.
COVID-19 Vaccination comments
9. It might be said, unlike the majority which held that they did not intend the circumstances of the current pandemic to encourage a spurious objection to a lawful workplace vaccination requirement, the Deputy President’s reasons might do the opposite. Some of the Deputy President’s broader points about mandatory COVID-19 vaccinations included –
- Vaccinations should be voluntary, and this should be supported by the Business Council of Australia and the ACTU as well as the Prime Minister in the media conference.
- Mandatory vaccinations cannot be justified on the basis that there is a need for persons to always give freely and informed consent for medical procedures; denying an unvaccinated person the ability to work on health and safety grounds.
- Requiring vaccinations of individuals was against international conventions namely the Nuremberg Code and the International Covenant of Civil and Political Rights which is given force by the Australian Human Rights Commission Act 1986 (Cth) that no one should be subjected without free consent to medical or scientific experimentation, noting that the current vaccine process in the country was still only provisionally approved for use in Australia and part of a clinical trial; state governments should not use Public Health Orders in a way which is punitive and human rights are not suspended during states of emergency or disaster.
- Blanket rules in Public Health Orders “deny people their fundamental right to work or operate to lock them out of society in which denies individuals freedoms which are a fundamental and essential part of a democracy, concepts of reasonableness, necessity and proportionality arise.”
- The “time was fast approaching that reliance on public health orders will no longer be justified on public health grounds because they cause a significant intrusion on individual liberties.”
- Disability discrimination laws may be breached by employers seeking to introduce compulsory vaccinations.
10. The decision highlights the requirement for urgent legislative reform and action to be taken at the national level by the Federal Government to implement clear guidelines for all workplaces. It seems that no government at this time is willing to take the bold but necessary step other than to rely on Public Health Orders for each industry.
11. The decision in Kimber suggests that multiple considerations need to be taken by any employer seeking to introduce a mandatory vaccination policy in their workplace. A worker with contemporaneous medical evidence suggesting a real contraindication to a vaccine may have better grounds of succeeding in refusing a vaccination, subject to any operative Public Health Order requirement. Until we see clear national leadership, there will be further disputes relating to mandatory vaccinations in the workplace, which outcomes will vary in each State.
  FWCFB 6015
  FWC 1818
 2021 FWC FB 6015 at paragraph 33
 Ibid at paragraph 35
 Ibid, paragraph 49
 Ibid, paragraph 54
 Ibid, paragraph 51
 Ibid, paragraph 57
 Ibid, paragraph 90
 Ibid, paragraph 92
 Ibid, paragraph 60
 Ibid, paragraphs 103 to 109
 Ibid, paragraph 111
 Ibid, paragraph 117 to 124
 Ibid, paragraph 151
 Ibid, paragraph 173