• In 2020 Sapphire Coast Community Aged Care (SCCAC) had implemented a mandatory vaccine policy due to the COVID-19 pandemic.
• At the time, the NSW Public Health Orders mandated everyone entering an aged care home had to have “an up-to-date vaccination against influenza if the vaccination is available to the person.”
• Further aged care operators had to “take all reasonable steps” to ensure unvaccinated persons did not enter the centres.
• Before 2020 SCCAC offered free annual flu shot programs, but these became compulsory for employees in 2020.
• All employees were informed they were required to be vaccinated unless there was a medical exemption and the only permitted contraindications from the flu vaccine were anaphylaxis in line with the Australian Immunisation Handbook. They were required to provide written evidence of the medical exemption.
• Ms Kimber refused to have the flu shot because, following a vaccine in 2016, she had developed a severe skin inflammation over parts of her body, an intense burning sensation, and she alleged her internal organs were affected for roughly 10 months.
• She provided letters of support from two doctors who agreed she should not get the vaccine, however, they were unable to provide direct evidence that she had suffered those reactions (as they had not examined her in 2016), other than through hearsay.
• As she continued to refuse the vaccine, she was stood down and then terminated through a show cause process for failing to comply with a lawful and reasonable direction and being unable to perform the inherent requirements of her role.
• Unsurprisingly, the Fair Work Commission held the directions were lawful and reasonable (though noted SCCAC had failed to issue a direction) as it complied with obligations under the NSW public health orders, and it was what was required to allow her to attend work and perform her role.
• Ms Kimber’s lack of medical evidence supporting her adverse reaction to the flu shot meant her termination was not harsh or unjust. At the time of the alleged reaction, she had not presented to any medical practitioners for inspection or even notified her employer. Finally, an immunologist conclusively determined the adverse reaction could not have originated from the vaccine.

Read the full court decision here.