A recent case from the Fair Work Commission (FWC) has created a potential precedent regarding how COVID-19 vaccines, medical exemptions and the workplace may interact in the courts. In the matter of Kimber v Sapphire Coast Community Aged Care Ltd (2021), the Commission saw a case wherein a receptionist of a residential aged-care facility was mandated to have the influenza (“flu”) vaccine as per a NSW Public Health Order. The Order allowed exemptions on medical grounds through filling out an approved form, issued by a medical practitioner. While not the COVID-19 vaccine, this case provides an intriguing glimpse at what may be the outcome of future unfair dismissal, vaccine exemption cases. Let’s look further into this matter and how it relates to COVID vaccine exemptions.
In the case, the employee, Kimber, provided a medical certificate from a medical practitioner stating that she had a contraindication to the flu vaccine. The certificate noted that the medical issue led to severe facial swelling and rash lasting 10 months from vaccination. The employer rejected this claim and, in the face of the employee’s continuing refusal to receive the vaccination, dismissed her on grounds she could not meet the inherent requirements of her position as an aged care receptionist. The receptionist sued on the grounds of unfair dismissal, and so the case was brought before the full bench of the FWC.
The FWC heard the particulars of the case and eventually resulted in 2 of the 3 judges ruling in favour of the employer. The 2 Judges ruled the Public Health Order required that an employee could only be exempt where the certified medical contraindication could be objectively established. The mere completion of the approved form was not enough. The government’s health order required that there be objective evidence of contraindication and in the matter of Kimber, there was little evidence to support her. It was also found that her refusal to have previous vaccines indicated she held an anti-vaccination stance.
As demonstrated by the case, while a simple medical certificate or form may satisfy an employer in a non-mandated industry, in a mandated workplace such as aged care, the approved form and objective evidence of a contraindication to the flu vaccine must be provided. While not a COVID-19 vaccine, this case may one day be applied to those who are mandated to have the COVID jab by law.
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