An employer’s decision to fire a worker who refused a flu vaccine after it was mandated for nursing home staff in NSW has been upheld by the Fair Work Commission.
Sapphire Coast Community Aged Care, in regional NSW, sacked receptionist Jennifer Kimber in July 2020 after she refused to be vaccinated against influenza following the state government mandating inoculation for nursing home workers.
The commission on Monday upheld an earlier ruling that firing Kimber was fair, despite her attempt to appeal.
But it was not a uniform decision, with the commission’s deputy president opposed to the majority ruling of her two colleagues, whose decision she called “medical apartheid”.
Fair Work Commission vice president Adam Hatcher and commissioner Bernie Riordan found Kimber did not provide evidence for claims she had an allergic reaction following a 2016 influenza inoculation and that she “held a broader anti-vaccination position”.
They warned against encouraging “a spurious objection to a lawful workplace vaccination requirement” given the COVID-19 pandemic.
“We consider that the public interest weighs entirely against the grant of permission to appeal,” Hatcher and Riordan said in the decision.
However, the commission’s deputy president Lyndall Dean said she had never disagreed more with an outcome in an unfair dismissal case.
She claimed governments’ decisions to mandate vaccinations were a “lazy and fundamentally flawed approach”.
“It is an abhorrent concept and is morally and ethically wrong, and the anthesis of our democratic way of life,” Dean said. “All Australians should vigorously oppose the introduction of a system of medical apartheid.”
The Australian Industry Group’s chief Innes Willox welcomed the majority ruling.
“It is pleasing that the Full Bench has supported an employer’s right to mandate vaccinations where reasonable in the circumstances,” Willox said.
“Today’s Full Bench decision follows a number of earlier decisions of single members of the FWC in which a similar approach has been taken.”