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Termination of unvaccinated employee upheld by the Fair Work Commission

Written by Dylan Feltham, Trainee Solicitor

In a recent ruling, the Fair Work Commission approved the dismissal of employees who fail to get vaccinated. The Fair Work Commission upheld the Sapphire Coast Community Aged Care’s decision to terminate an employee for refusing to receive the influenza vaccination after it was mandated for nursing staff in New South Wales.

The employee, namely Jennifer Kimber, provided evidence from medical practitioners that stated she had previously suffered severe allergic reactions to the vaccine in 2016. Despite this, Kimber was dismissed on the basis that a “severe allergic reaction does not qualify as a medical contraindication under the order”.

Kimber challenged her termination in front of the Fair Work Commission full bench, comprised of Fair Work Commission vice president Adam Hatcher, Fair Work Commission deputy president Lyndall Dean and commissioner Bernie Riordan. Similar to a traditional boxing match, the judges were split. Hatcher and Riordan supported the employee’s termination, whilst Dean was heavily opposed to it. This resulted in the decision of the employer being upheld by a majority of the full bench, and Kimber’s appeal being dismissed. The basis of this decision focused on the importance of not giving “any encouragement to a spurious objection to a lawful workplace vaccination requirement” in light of the current COVID-19 pandemic.

In dissent, Dean emphatically wrote that she has never “more strenuously disagreed with an outcome in an unfair dismissal application”. She further slammed the government’s decision to mandate vaccinations as morally and ethically wrong and urged Australians to vigorously oppose the introduction of “a system of medical apartheid”. It is clear mandatory vaccinations is a topic which continues to divide society, however, this ruling gives the green light for employers to dismiss employees for failing to be vaccinated in reasonable circumstances.

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