Jennifer Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWC 1818
In early 2020, the New South Wales Government issued a public health order (PHO) requiring any person entering the facility to have an up-to-date vaccination against the flu. In accordance with this order, Sapphire Coast Community Aged Care (Sapphire Coast) implemented a free mandatory flu vaccination policy.
Ms Kimber, who had previously received work-administered flu vaccines in 2015 and 2016, refused to receive a flu vaccine on the basis of a previous allergic reaction. This allergic reaction was never reported to Sapphire Coast, nor was there any evidence of an absence from work as a result of the flu vaccine or medical examination/diagnosis of the allergic reaction.
The CEO of Sapphire Coast ultimately determined that the medical evidence provided by Ms Kimber did not confirm she was unable to have the flu vaccination. Specifically, a severe allergic reaction did not qualify as a valid contraindication based on comments by the Chief Medical Officer. Ms Kimber was then dismissed because she could not fulfil the inherent requirements of her job.
Commissioner McKenna held that a direction to an employee to have the flu vaccine in these circumstances was a lawful and reasonable direction because it effectively reflected what was in fact the law as it applied under the PHO. Here, Sapphire Coast had acted in an objectively prudent and reasonable way in refusing to let Ms Kimber attend work without an updated flu vaccination.
Ultimately, there was insufficient evidence to support that she had a medical contraindication to the flu vaccine and since Ms Kimber was unable to perform the inherent requirements of her job her dismissal was valid.
Key takeaways
Based on the above case, any mandatory flu vaccination policy implemented as a result of the PHO’s is a lawful and reasonable direction, which if not complied with can justify dismissal. Ultimately, an employee who cannot attend work because of a refusal to receive a flu vaccine, cannot perform the inherent requirements of their role and can be dismissed on those grounds. However, as in any situation involving dismissal, employers should have due regard to procedural fairness principles.
The Australian Immunisation Handbook states the only absolute contraindications are anaphylaxis to a previous dose of a vaccine or a component of a vaccine.
If you have any queries regarding lawful and reasonable directions or any other aged care related matters, please contact a member of our Health and Aged Care team or our Employment and Workplace Relations team on (08) 9321 0522.
Read the case here.
