NSW Supreme Court strikes a blow to Deputy President’s anti-mandatory vaccination stance

As lockdown in the ACT begins to lift, many employers are asking whether they need to or should mandate vaccinations before their employees return to work. This is particularly the case in industries where the ACT government has made public health orders requiring vaccination (aged care, healthcare workers and early childhood education). What happens if an employee refuses to comply with a public health order? A recent decision of a full bench of the Fair Work Commission – Kimber v Sapphire– might hold the answers. You may have heard about the decision, but perhaps not because of its outcome. Rather, because Deputy President Dean, who frequently presides over ACT-related FWC matters, handed down a passionate dissenting decision in that appeal. DP Dean’s dissent lent support to those resisting COVID-19 vaccine mandates. But how seriously must employers take DP Dean’s clarion call for resistance? 

Jennifer Kimber was an aged care home receptionist. In 2020, a Public Health Order mandated that all aged care facility staff receive a flu vaccine, unless they had a recognised medical exemption. Ms Kimber refused to get a flu vaccine, claiming that after receiving one in 2016 she developed a rash that persisted for 10 months. Despite providing medical certificates in support of her claim, Ms Kimber’s employer was not satisfied with her medical evidence and she was eventually dismissed for her refusal. She made an unfair dismissal application to the FWC. Kimber lost at first instance and then appealed to an FWC three-member full bench.

Two of the three FWC members on the full bench decided against Ms Kimber, finding her dismissal had not been unfair. The majority considered that there was a ‘paucity of evidence’ linking her alleged rash to the influenza vaccination and found that, even taking her assertions at their highest, the skin condition did not constitute a medical contraindication that would prevent her from receiving the flu vaccine. Given that the law prevented her from attending her workplace without having a flu vaccination, the majority found that Ms Kimber was unable to perform the inherent requirements of her role. The majority also noted that it was now a requirement that aged care workers receive a COVID-19 vaccine as a condition of employment. When her representative was asked by one of the members of the majority whether, if she were reinstated, she would get the COVID-19 vaccine, the response was evasive. The majority considered that the fact she was not prepared, in the context of the pandemic, to unequivocally say that she would get a COVID-19 vaccination if the appeal was upheld supported the inference that she held a “general anti-vaccination position” and called into question the utility of the appeal, given that the remedy that she was seeking was reinstatement.

DP Dean “strenuously” disagreed with the majority. Despite the subject matter of the case concerning the influenza vaccine not the COVID-19 vaccine, DP Dean took the opportunity to state her views on mandating COVID vaccination. Calling on “all Australians” to “vigorously oppose the introduction of a system of medical apartheid and segregation”, DP Dean stated that mandating vaccinations was a challenge to “our democratic way of life and everything we value”. Winding her way through a range of matters in support of her views, DP Dean discussed global starvation statistics and the number of paedophiles in NSW before suggesting that, as COVID vaccines are only provisionally approved for use in Australia, all people who get the vaccine are participating in a “clinical trial” – a fact that she was at pains to point out was not a “conspiracy theory”. DP Dean ultimately considered that mandating vaccination was not a reasonable control measure and that, as a result, public health orders had moved well past the minimum necessary to achieve public health aims and into the realm of ‘depravation’ of fundamental human rights. In order to address the risk of COVID, DP Dean expressed the view that, rather than mandating vaccination, governments should instead “actively avoid the hysteria and fear-mongering” that was replacing rational, fact-based decision making.

So, where to from here?

The NSW Supreme Court has answered this question. In the recent decision of Kassam v Hazzard, Chief Justice Beech-Jones struck a somewhat heavy blow to those who would rely upon DP Dean’s decision in Kimber. Kassam concerned multiple plaintiffs who were challenging public health orders in NSW which required construction, aged care and education workers to receive a COVID vaccination. The plaintiffs had all refused to be vaccinated and did not have a medical exemption. One group of plaintiffs sought to rely on DP Dean’s decision in support of their case. That is perhaps not surprising. The solicitor for both Ms Kimber and a group of plaintiffs in Kassam was Nathan Buckley, a strident “anti-mandatory vaxxing” advocate, who has set up a number of GoFundMe campaigns to fund legal challenges run by him against mandatory COVID-19 vaccination. To date, none of those challenges has been successful.

Beech-Jones CJ rejected DP Dean’s assertions about the “efficacy and safety” of COVID-19 vaccines, finding that there was no persuasive evidence to support them. He then went further, stating that it was not the role of the FWC to determine the validity of public health orders.  Rather, that function was for the courts and the political process. Finally, Beech-Jones CJ emphatically rejected DP Dean’s clarion call to “all Australians”, stating that “Political pamphlets have their place but I doubt that the Fair Work Commission is one of them. They are not authorities for legal propositions”.

The Court ultimately concluded that the public health orders were valid, did not amount to an assault on bodily integrity and, in fact, the curtailing of free movement of persons, including their movement to and at work were the very type of restrictions that the NSW Public Health Act clearly authorised. The differential treatment of people according to their vaccination status was therefore not arbitrary; rather entirely consistent with the objects of that Act.

The NSW Supreme Court’s unequivocal rejection of DP Dean’s dissenting decision in Kimber and upholding of the legality and validity of public health orders requiring vaccination means that employers should feel confident in requiring their employees to comply with a PHO if one is in place in their industry. Further, for all the headlines, DP Dean’s dissenting decision is somewhat of an anomaly in the FWC’s otherwise broad support of employer vaccine mandates. In all recent decisions involving employer-mandated influenza vaccines, the FWC has found for the employer that imposed the mandate. It has done so either by treating the employer’s vaccine mandate as a lawful and reasonable direction, or by holding that being vaccinated is an inherent requirement of the job. One expects that, given the far more virulent and serious nature of COVID-19, COVID vaccine mandates are more likely to be found to constitute lawful and reasonable directions than even those for influenza. While DP Dean’s decision may have been attention-grabbing at the time it was handed down, it is likely to amount to be no more than a historical footnote, as the FWC continues to back employers who mandate vaccines.

For all employment related queries or concerns, please contact our Employment Law & Investigations team at BAL Lawyers.

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