Employer obligations at the pointy end of the needle.
The rights of employers to require workplace vaccination of their employees remains uncertain following the recent decision of the Full Bench of the Fair Work Commission in Jennifer Kimber v Sapphire Coast Community Aged Care Ltd  FWCFB 6015 (27 September 2021) (Kimber).
The majority of the Full Bench, VP Hatcher and Cmr Riordan, refused to grant the worker permission to appeal against a finding that her dismissal for refusing an influenza vaccination was unfair (Majority Decision).
The worker, Ms Kimber, was employed as a clerk at the reception counter of a residential aged care facility, whose duties included greeting visitors and escorting them to residents’ rooms. The applicable public health order required the worker to be vaccinated against influenza, unless she was exempt because she had a medical contraindication. Ms Kimber’s employer relied upon independent medical evidence to reject her assertion that she had a medical contraindication that prevented her from being vaccinated. The Majority Decision found that Ms Kimber’s appeal grounds were lacking in merit and upheld the decision at first instance of Cm McKenna that her dismissal for refusing to be immunized for flu was not unfair:
as a direction that to be vaccinated against influenza would have been lawful and reasonable;
it was an inherent requirement of her role to be vaccinated; and
the worker’s evidence of a claimed medical exemption was insufficient.
Further, the Majority Decision stated:
“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.”
The dissenting judgment of DP Dean included the following comments, possibly providing the worker with some incentive to appeal the Full Bench decision:
“… one can only hope that the Majority Decision is recognised as an abnormality and not followed by others”; “Blanket rules, such as mandating vaccinations for everyone across the whole profession or industry regardless of the actual risk, fail the tests of proportionality, necessity and reasonableness”; and “All Australians should vigorously oppose the introduction of a system of medical apartheid and segregation 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.”
Implications for Employers
The Majority Decision provides a legal basis for employers, who take the appropriate preliminary steps, to require their employees to be vaccinated for influenza (and potentially COVID 19) in appropriate circumstances, and to take disciplinary action against workers who refuse to be vaccinated. In this case, the worker’s day-to-day engagement with aged care residents was relevant to the question of whether the influenza vaccination requirement was reasonable. Ms Kimber has indicated she will appeal the decision to the Federal Court, which raises the spectre that the dissenting opinion expressed by DP Dean may be upheld. In the absence of a legal requirement, such as found in a public health order or direction, it is necessary for employers to conduct an assessment of their workplace to determine whether it is lawful and reasonable to give directions for employees to be vaccinated and to substantiate whether vaccination comprises an inherent requirement of the particular role. It would also be prudent to conduct such an assessment even in circumstances where public health orders or directions impose an obligation on employees to be vaccinated, to cover situations where a public health order or direction is set aside by a court. Employers seeking to impose a requirement for vaccination must also consider appropriate exemptions where workers have a genuine medical exemption, such as redeployment or alternative duties where possible.
Unless or until further legislative protection is provided either in public health orders/directions or, preferably, by amendments to the Public Health Act, the Work Health and Safety Acts or other legislation, there is no “one size fits all” answer for employers who find themselves sitting on the pointy end of the fence - trying to balance their obligations to ensure the health and safety of their employees and customers and navigate vaccination issues. Henry William Lawyers is available to provide specific advice and guidance to fit your circumstances.