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June 2021

Some vaccinations may be mandatory

Some vaccinations may be mandatory

The Case

Jennifer Kimber v Sapphire Coast Community Aged Care Ltd (2021)

Ms Kimber was employed as a receptionist by Sapphire Coast Community Aged Care Ltd (Sapphire Coast), which ran a high-care nursing home.

In March and June 2020, a Public Health Order was issued by NSW Health, directing that anyone without an up-to-date vaccination for influenza could not enter a residential aged-care facility. Following the Public Health Order, Sapphire Coast advised Ms Kimber that she would not be able to attend work unless she had the vaccination or fitted within one of the exemptions.

Ms Kimber advised that she did not want to have the vaccination and provided a letter from her doctor saying she had previously had a severe allergic reaction to the influenza vaccine. Sapphire Coast stood Ms Kimber down. After Ms Kimber continued to attend work while unvaccinated, it terminated her employment, advising she could not safely perform the inherent requirements of the role.

Ms Kimber filed an unfair dismissal claim in the Fair Work Commission (FWC).

The Verdict

The FWC held:

  • Ms Kimber was unable to perform the inherent requirements of her job if she did not comply with the Public Health Order;
  • Ms Kimber had not demonstrated any medical exemption for not having the influenza vaccine; and
  • Ms Kimber’s dismissal was not harsh, unjust or unreasonable.

The Lessons

Vaccination policies implemented by employers can constitute lawful and reasonable directions, depending on the work performed by the employee, the inherent health and safety risks, the existence of any public health orders, the industry in which the employee works and reasonableness of the exemptions. Employees must be provided with an opportunity to explain the reason for any refusal, and to provide medical or any other evidence to support that refusal.

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