Recap of recent mandatory vaccination cases

In brief 5 min read

The Fair Work Commission¹ (the FWC) and New South Wales Supreme Court² (the NSWSC) have each recently made decisions regarding mandatory influenza and COVID-19 vaccination employment policies.

Key takeaways

• The case of Kassam v Hazzard; Henry v Hazzard confirms that the NSW Minister for Health and Medical Research has the legal authority to introduce state-specific public health orders that require particular workers from declared industries to be vaccinated against COVID-19.
• The case of Jennifer Kimber v Sapphire Coast Community Aged Care lends further support to the ability of employers, who are subject to public health orders, to direct their employees to be immunised against influenza.
• The case of Giggs v St John Ambulance Western Australia is a useful demonstration of the FWC's power to refer questions of law to the Federal Court of Australia.

Kassam v Hazzard; Henry v Hazzard

The NSWSC recently dealt jointly with two separate proceedings against the NSW Minister for Health and Medical Research, which asserted that a number of the state's public health orders relating to mandatory COVID-19 vaccinations were invalid. The proceedings collectively represented opposition to the public health orders from the construction, education and aged care industries.

The NSWSC concluded in favour of the Minister, by confirming that the public health orders were made within his legal authority under the Public Health Act 2010 (NSW). The following points were raised in the decision:

• a person's consent to vaccination is not invalidated and a person's right to bodily integrity is not violated simply because a reason for their agreement to receive a COVID-19 vaccination is to avoid the general prohibitions regarding movement or entry into restricted premises; and
• orders and directions that generally interfere with freedom of movement based on arbitrary grounds, such as discriminatory reasons, would likely be considered invalid and unreasonable. However, the differential treatment of people based on their vaccination status is an evidence-based approach and is not arbitrary in nature.

Jennifer Kimber v Sapphire Coast Community Aged Care

Ms Kimber was employed by Sapphire Coast Community Aged Care as a reception clerk, which required her to work in close proximity with visitors who attended the facility. Following the introduction of the NSW public health orders in 2020, Ms Kimber's refusal to receive a mandatory influenza vaccination resulted in her being dismissed from her employment. She brought an unfair dismissal application, which was subsequently dismissed by the FWC, on the basis that Sapphire Coast Community Aged Care was correct in concluding that Ms Kimber could no longer perform the inherent requirements of her job without receiving the influenza shot required by the NSW Government.

On appeal, the majority of the FWC Full Bench reaffirmed the decision that Ms Kimber was not unfairly dismissed by Sapphire Coast Community Aged Care. Among several reasons, the majority formed the view that there were:

• significant doubts about the credibility of the alleged anaphylactic response that Ms Kimber had suffered from during her previous influenza vaccinations; and
• there was a lack of satisfactory or robust medical evidence to support her medical exemption from receiving subsequent flu shots.

In view of the current COVID-19 pandemic, the majority of the FWC Full Bench expressed its intention to avoid any 'encouragement to a spurious objection to a lawful workplace vaccination requirement'.

Krystal Giggs v St John Ambulance Western Australia

Ms Giggs was employed as a paramedic by St John Ambulance Western Australia. In response to the Western Australian Government's public health directions relating to residential aged care facilities, her employer imposed a mandatory flu vaccination policy across its workforce.

Ms Giggs did not comply with the mandatory flu vaccination direction and was subsequently dismissed from her employment. She then lodged an unfair dismissal claim in the FWC.

Within the unfair dismissal proceedings, Ms Giggs applied for the FWC to refer six purported questions of law to the Federal Court of Australia. Although the FWC has the power to refer questions of law to the Federal Court, Ms Giggs' application was ultimately dismissed on the grounds that:

• the purported questions of law were not genuine questions but, rather, a strategic masquerade to support her case that she could not be lawfully and reasonably directed to comply with the mandatory vaccination policy;
• the referral would undoubtedly result in considerable delay in the determination of the unfair dismissal application itself; and
• the referral of the purported questions would not have aided the substantive determination of the unfair dismissal proceedings.