It has not taken long – less than 3 weeks, in fact – for Deputy President Dean’s widely-publicised minority dissent in the recent Full Bench decision of Jennifer Kimber v Sapphire Coast Community Aged Care Ltd[1] to be rejected by a court.

The case of Kimber involved a clerk working in the aged care sector, who refused to receive the influenza vaccine at the direction of her employer (and where there was a public health order in place). Medical grounds were cited as the basis for not being able to receive the vaccine. The majority in Kimber said that “encouragement”[2] should not be given to “spurious objections to a lawful workplace vaccination requirement”[3]. It was held to be within the purview of employers to terminate an employee’s employment where there is non-compliance with a lawful and reasonable direction to be vaccinated on the basis of a public health order.

Following the decision, Ms Kimber’s lawyers, G & B Lawyers (of the same fame for its Facebook and Twitter posts supporting anti-lockdown protests and spreading misinformation about COVID-19 vaccines), immediately indicated that it would appeal the decision.

G & B Lawyers acted for the ‘Henry plaintiffs’ in Kassam v Hazzard; Henry v Hazzard[4], and sought to rely on DP Dean’s dissent in Kimber.  The NSW Supreme Court, in rejecting every ground of objection by the plaintiffs, criticised DP Dean’s dissent for making political statements about the nature of consent to medical treatment that were not referable to any relevant case law and otherwise analogising mandatory vaccination directions to “medical apartheid and segregation”[5], which of course are loaded terms to use in the current context, given their historical cultural and political significance.

The Kimber decision

At first instance…

The Fair Work Commission found that while the employer had not factually given Ms Kimber a direction to be vaccinated, it communicated her requirement to be vaccinated in accordance with the relevant public health orders in place at the time.  Accordingly, a direction would have been lawful and reasonable in the circumstances and that Ms Kimber was unable to perform the inherent requirements of her position by virtue of the operation of those public health orders.

The Full Bench

The majority (Vice President Hatcher and Commissioner Riordan) upheld the dismissal as fair and had some key takeaways for employers

While the Full Bench only needed to deal with flu vaccinations, it expressed its views more broadly in relation to mandating COVID-19 vaccinations and public health orders in that context. This included that a public health order may render an employee unable to perform the inherent requirements of their position and that employers can be justified in terminating employment in such circumstances.

It is not enough for an employee to assert that they have, or previously had, a medical condition which prevents them from being safely vaccinated. Where a medical practitioner fills in a medical contraindication form, there must be a widely recognised medical basis for the practitioner asserting that the patient has a contraindication.  Crucially, employers are not obliged to take this at face value and can in fact, consider other expert medical evidence as to whether the asserted medical contraindication (and refusal to follow a lawful and reasonable direction) is valid.

Significant weight was placed on the legitimacy of the medical contraindication and Ms Kimber’s medical evidence of same.  For example, the majority held that Ms Kimber’s letter from a Practitioner of Chinese Medicine, was “also plainly not based on medical science” and that “the reference to an “ancient formula” of herbs being used to prevent COVID-19 in China and to achieve “a healthy herd immunity” is sufficient evidence of this.”[6]

The majority also sought to discourage the notion that a treating doctor is permitted “carte blanche”[7] to fill in any medical condition as being a medical contraindication.

Correspondence from Ms Kimber to her employer led the majority to conclude that she “held a broader anti-vaccination position.  The “research” undertaken by Ms Kimber was described by her in the following terms: “I google searched all sorts of stuff”[8].  This was not held in high regard by the majority and raised doubt as to the credibility of Ms Kimber’s position.

In her dissent, DP Dean held that:

She had “never … more strenuously disagreed with an outcome in an unfair dismissal application”[9] and that the majority “denied Ms Kimber the protections afforded by the Fair Work Act in part because of “an inference that she holds a general anti-vaccination position”.[10]

There was no lawful and reasonable direction given to Ms Kimber, and there couldn’t be on the basis that she had a valid medical exemption.  Ms Kimber had a valid exemption because of DP Dean’s view that a medical practitioner would not complete a medical contraindication form or provide a letter of support if they did not generally believe that the patient had a medical contraindication.

More broadly, mandatory vaccination directions:

• Fail the tests of proportionality, necessity and reasonableness”[11]; and
• Are a “lazy and fundamentally flawed approach to risk management and should be soundly rejected by courts when challenged”[12].

In coming to this conclusion, DP Dean stated that:

• COVID-19 vaccinations (unlike other vaccinations) are not designed to stop COVID-19, but rather to reduce the symptoms.
• The risks of COVID-19 are less serious for those who are young and are otherwise healthy.
• Most people diagnosed with COVID-19 recover without any medical treatment.
• COVID-19 vaccinations themselves have only been provisionally approved for use in Australia and that they are still part of a clinical trial.

We note that aspects of DP Dean’s dissenting decision appear to be inconsistent with the position adopted by the federal, state and territory governments and published decisions of the Fair Work Commission and other Courts.

Kassam and Henry

This decision concerns two separate groups of plaintiffs – the ‘Kassam plaintiffs’ and the ‘Henry plaintiffs’ – all of whom have:

• Made an informed choice to refuse to be vaccinated against COVID-19, and who would otherwise have been required to receive the vaccine under relevant NSW public health orders;
• What would be described as ‘conscientious’ objectors to receiving the COVID-19 vaccine;
• Commenced proceedings challenging the validity of various NSW public health orders that had the effect of mandating COVID-19 vaccines for various sectors of workers in NSW

Every ground raised by both the Kassam plaintiffs and the Henry plaintiffs was rejected by the NSW Supreme Court.

The primary challenge raised in both cases concerned the effect of the impugned public health orders on the rights and freedoms of those persons who chose not be vaccinated, particularly their ‘freedom’ and / or ‘right’ to their own bodily integrity.

The NSW Supreme Court held that “the proper analysis is that the impugned orders curtail freedom of movement which in turn affects a person’s ability to work (and socialise).  So far as the right to bodily integrity is concerned, it is not violated as the impugned orders do not authorise the involuntary vaccination of anyone.” [13]

Indeed, the public health orders do not violate any person’s right of bodily integrity, nor do they purport to confer authority on any person, including a medical practitioner, to perform a medical procedure on anyone.

Both the Kassam plaintiffs and Henry plaintiffs submitted that the practical effect of such an interpretation was that a person’s consent is essentially vitiated by reason of being threatened with the loss of their capacity to work.  Thus, it cannot be said that they have exercised a free choice to consent and that any such vaccinations that have been administered under the public health orders in those circumstances amounted to battery.  The NSW Supreme Court categorically rejected this in saying that “while none of the plaintiffs have been so overborne”[14], so far as “the consent necessary to negative the offence of battery [this] is satisfied by the patient being advised in broad terms of the nature of the procedure to be performed”.[15] While Chief Justice Beech-Jones would not ordinarily address reasoning of the Fair Work Commission, he did so on the basis that the Henry plaintiffs had sought to rely on DP Dean’s dissent.  His Honour found DP Dissent’s to be of “no assistance”[16] for the following reasons:

• It did not address the case law concerning consent to medical treatment;
• It contained assertions about the efficacy and safety of COVID-19 vaccines and other aspects of the public health response to COVID-19 that were not reflected in the evidence that His Honour found persuasive in this case and were not the subject of evidence in that case;
• DP Dean opined on matters outside of the function of the Fair Work Commission, namely the validity and appropriateness of making the relevant public health order;
• DP Dean “makes a number of “clarion calls” imploring “all Australians” to do things such as “vigorously oppose the introduction of a system or medical apartheid and segregation” and “vigorously oppose the ongoing censorship of any views that question the current policies regarding COVID”. Political pamphlets have their place but I doubt that the Fair Work Commission is one of them. They are not authorities for legal propositions.”[17]

The NSW Supreme Court also confirmed that the public health orders do not interfere with the common law right to work, do not fall foul of federal anti-discrimination legislation, the Privacy Act 1998 (Cth), the relevant state health records legislation or the Australian Immunisation Register Act 2015 (Cth).

What this means for employers with vaccine-hesitant employees

While vaccine-uptake is generally high amongst most employees, many employers are nonetheless experiencing difficulty with a small number intransigent employees.  The various grounds for objecting to the vaccine span the medical to conspiratorial and every novel objection in between, including that it is ‘battery’ and that medical practitioners (and even employers) are liable for assault or any adverse event arising from someone taking the COVID-19 vaccine at the behest of a public health order.

Indeed, people who do not want to be vaccinated, may do so, in response to what Chief Justice Beech-Jones describes as “various forms of societal pressure including a law or a rule, an employment condition or to avoid familial or social resentment, even scorn.”[18]

Kassam and Henry confirms that the consent of people who receive the vaccine in such situations, is not “vitiated” and “a person’s right to bodily integrity is not violated just because a person agrees to be vaccinated to avoid a general prohibition on movement or to obtain entry onto” a particular worksite any more than a “a provision requiring a person undergo a medical examination before commencing employment does”.[19]

Importantly, the decision provides a more authoritative declaration which employers can rely on when navigating circumstances where an employee raises a conscientious objection to receiving the COVID-19 vaccine in circumstances where there is a public health order in place. Of course, such objections should be handled on a case-by-case basis.

[1] [2021] FWCFB 6015 (Kimber).

[2] Ibid at [60].

[3] Ibid.

[4] [2021] NSWSC 1320 (Kassam and Henry).

[5] Ibid at [182]

[6] Kimber at [10].

[7] Ibid at [50].

[8] Ibid at [17].

[9]. Ibid at [65].

[10] Ibid.

[11] Ibid at [115].

[12] Ibid at [181].

[13] Kassam and Henry at [9].

[14] Ibid at [59].

[15] Ibid at [62].

[16] Ibid at [65].

[17] Ibid at [69].

[18] Ibid at [63].

[19] Ibid.