FAIR WORK COMMISSION
[2021] FWCFB 6015
Jennifer Kimber
v
Sapphire Coast Community Aged Care Ltd
(C2021/2676)
VICE PRESIDENT HATCHER
DEPUTY PRESIDENT DEAN [go to dissent]
COMMISSIONER RIORDAN
SYDNEY, 27 SEPTEMBER 2021
Appeal against decision [2021] FWC 1818 of Commissioner McKenna at Sydney on 29 April 2021 in matter number U2020/9867.
DECISION OF VICE PRESIDENT HATCHER AND COMMISSIONER RIORDAN
Introduction
[1] Ms Jennifer Kimber has lodged an appeal pursuant to s 604 of the Fair Work Act 2009 (FW Act), for which permission to appeal is required, against a decision of Commissioner McKenna issued on 29 April 2021 1 (decision) in which she dismissed Ms Kimber’s application for an unfair dismissal remedy against Sapphire Coast Community Aged Care Ltd (Sapphire). Sapphire operates aged care facilities in New South Wales, including at Imlay House in Pambula. Ms Kimber was, until her dismissal on 6 July 2020, employed as a receptionist at Imlay House. Her dismissal arose from her refusal to comply with a requirement to be vaccinated against influenza. In the decision, the Commissioner determined that the dismissal was for a valid reason, was procedurally fair, and was not harsh, unjust or unreasonable. Ms Kimber contends in her appeal that the grant of permission to appeal would be in the public interest and that the decision was attended by appealable error.
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Consideration
[47] Section 400(1) of the FW Act applies to this appeal. Consequently, we cannot grant permission to appeal unless we are satisfied that to do so would be in the public interest.
[48] For the reasons which follow, we do not consider that the grant of permission to appeal would be in the public interest.
[49] First, while we consider that Ms Kimber has advanced an arguable case that she was exempt from the requirement for an up-to-date influenza vaccination in the June Order at the time of her dismissal, that case was ultimately not sustainable at the hearing. ...
[55] Second, Ms Kimber’s other appeal grounds are in any event lacking in merit. ...
[56] Third, although this was not the subject of any finding by the Commissioner, we have real doubt as to the credibility of the main tenet of Ms Kimber’s case, namely that she objected to taking the influenza vaccine because of an alleged previous allergic reaction to it. ...
[59] Fourth, Ms Kimber does not identify any reason beyond the particular circumstances of her case as to why her appeal would attract the public interest. ...
[60] Fifth, we consider that the public interest weighs entirely against the grant of permission to appeal. We do not intend, in the circumstances of the current pandemic, to give any encouragement to a spurious objection to a lawful workplace vaccination requirement.
Conclusion
[61] Permission to appeal is refused.
Introduction
[62] Ms Jennifer Kimber was dismissed because of her inability to be vaccinated against influenza in 2020.
[63] In a decision dated 29 April 2021, Commissioner McKenna determined that Ms Kimber’s dismissal was not unfair and dismissed her application for an unfair dismissal remedy against Sapphire Coast Community Aged Care Ltd (Sapphire) (the Decision) [http://www.fwc.gov.au/decisionssigned/html/2021fwc1818.htm].
[64] Ms Kimber has lodged an appeal, for which permission to appeal is required, against the Decision. Permission to appeal has been refused by my colleagues in the majority (the Majority Decision).
[65] Never have I more strenuously disagreed with an outcome in an unfair dismissal application. The Decision manifest a serious injustice to Ms Kimber that required remedy. More egregious, however, is that the Majority Decision has denied Ms Kimber the protections afforded by the Fair Work Act in part because of “an inference that she holds a general anti-vaccination position” [Paragraph 58 of Majority Decision].
[66] Had I been able to do so, I would have granted permission to appeal, upheld the appeal and quashed the Decision. In re-determining the application, I would have found that Ms Kimber was unfairly dismissed and would have reinstated her to her former position.
[67] This decision is in two parts. First, I will explain the reasons why Ms Kimber was unfairly dismissed. Second, I will address the Majority Decision as it relates to COVID-19 and vaccine requirements.
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PART 2 – VACCINE REQUIREMENTS IN RELATION TO COVID
101] The Majority Decision raises the issue of COVID vaccinations and their requirement in workplaces. It forms part of the reasoning for refusing to grant permission to appeal and accordingly provides the opportunity in this decision to deal with this important issue.
[102] There can be absolutely no doubt that vaccines are a highly effective tool for protection against a variety of diseases. The focus of this decision, however, is not the pros and cons of vaccination. It is about the extent to which mandatory COVID vaccinations can be justified, as to do so impinges on other laws, liberties and rights that exist in Australia.
Vaccinations should be voluntary
[103] It has been widely accepted that for the overwhelming majority of Australians, vaccination should be voluntary.
[104] The commonly accepted definition of voluntary includes acting of one’s own free will, optional or non-compulsory. This is the opposite of the definition of mandatory, which is something that is compulsory, obligatory or required. Something that is mandatory must be done.
[105] The stated position of the Australian Government is that the vaccine is voluntary. On 21 July 2021, the Prime Minister in a media conference stated that “people make their own decisions about their own health and their own bodies. That’s why we don’t have mandatory vaccination in relation to the general population”.
[106] On 13 August 2021, the Australian Council of Trade Unions (ACTU) and the Business Council of Australia (BCA) issued a joint statement on mandatory COVID vaccinations in which it acknowledged the Australian Government’s COVID vaccination policy that the vaccine is voluntary, and confirmed the views of the BCA and ACTU that “for the overwhelming majority of Australians, your work or workplace should not fundamentally alter the voluntary nature of vaccination”. (emphasis added)
[107] The Fair Work Ombudsman has publicly stated that employers will need to have a “compelling reason” before requiring vaccinations, and that “the overwhelming majority of employers should assume that they can’t require their employees to be vaccinated against coronavirus”. (emphasis added)
[108] Safe Work Australia has publicly stated that “most employers will not need to make vaccinations mandatory to meet their [health and safety] obligations”. (emphasis added)
[109] Despite this, many employers are declaring they will mandate COVID vaccines for their workers, and PHOs [Public Health Orders] are being made by State Governments, in circumstances where there is no justification for doing so.
Mandatory vaccination cannot be justified
[110] COVID vaccinations, in accordance with the Australian Government’s policy, must be freely available and voluntary for all Australians.
[111] Mandatory COVID vaccinations, however, cannot be justified in almost every workplace in Australia. While there are numerous reasons for this, this decision will focus on:
a) the requirement for freely given and informed consent for medical procedures;
b) denying an unvaccinated person the ability work on health and safety grounds, whether at the initiation of an employer or as part of a PHO; and
c) the requirements to comply with disability discrimination laws.
[112] There is of course a degree of overlap with the reasoning applicable to the inability to justify mandatory vaccination whether at the initiative of employers or as part of a PHO, however I have not repeated the reasons under each separate heading.
[113] Before turning to a consideration of these reasons, it is important to set the context with some information that is publicly available and should be uncontroversial:
a. Unlike many other vaccinations such as those used to stop the spread of tetanus, yellow fever and smallpox, COVID vaccinations are not designed to stop COVID. They are designed to reduce the symptoms of the virus, however a fully vaccinated person can contract and transmit COVID.
b. The science is clear in that COVID is less serious for those who are young and otherwise healthy compared to those who are elderly and/or who have co-morbidities. In other words, the risk of COVID is far greater for those who are elderly or have co-morbidities. Around 87% of those who have died with COVID in Australia are over 80 years old and had other pre-existing illnesses listed on their death certificates.
c. The World Health Organisation has stated that most people diagnosed with COVID will recover without the need for any medical treatment.
d. The vaccines are only provisionally approved for use in Australia and are accordingly still part of a clinical trial [https://www.tga.gov.au/covid-19-vaccines-undergoing-evaluation].
e. There are side effects to the COVID vaccines that are now known. That side effects exist is not a conspiracy theory.
f. The long-term effects of the COVID vaccines are unknown, and this is recognised by the Therapeutic Goods Administration (TGA) in Australia.
Consent is required for participation in clinical trials
[114] Consent is required for all participation in a clinical trial. Consent is necessary because people have a fundamental right to bodily integrity, that being autonomy and self-determination over their own body without unconsented physical intrusion. Voluntary consent for any medical treatment has been a fundamental part of the laws of Australia and internationally for decades. It is legally, ethically and morally wrong to coerce a person to participate in a clinical trial.
[115] Coercion is not consent. Coercion is the practice of persuading someone to do something using force or threats. Some have suggested that there is no coercion in threatening a person with dismissal and withdrawing their ability to participate in society if that person does not have the COVID vaccine. However, nothing could be further from the truth.
[116] All COVID vaccines in Australia are only provisionally approved, and as such remain part of a clinical trial 21. This is not part of a conspiracy theory. It is a fact easily verifiable from the website of the TGA [https://www.tga.gov.au/covid-19-vaccines-undergoing-evaluation], Australia’s regulatory authority responsible for assessing and registering/approving all COVID vaccines before they can be used in Australia.
[117] The requirement for consent in this context is not new and should never be controversial. The Nuremburg Code (the Code), formulated in 1947 in response to Nazi doctors performing medical experiments on people during WWII, is one of the most important documents in the history of the ethics of medical research.
[118] The first principle of the Code is that “The voluntary consent of the human subject is absolutely essential”. The Code goes on to say that “This means that the person involved should have legal capacity to give consent; should be so situated as to be able to exercise free power of choice, without the intervention of any element of force, fraud, deceit, duress, overreaching, or other ulterior form of constraint or coercion; and should have sufficient knowledge and comprehension of the elements of the subject matter involved as to enable him to make an understanding and enlightened decision….”
[119] Informed and freely given consent is at the heart of the Code and is rightly viewed as a protection of a person’s human rights.
[120] The United Nations, including through the Universal Declaration of Human Rights, first proclaimed in 1948, has long recognised the right to bodily integrity.
[121] The Declaration of Helsinki (the Declaration), made in 1964 by the World Medical Association, is also a statement of ethical principles for medical research involving human subjects. Under the heading of “Informed Consent”, the Declaration starts with the acknowledgement that “Participation by individuals capable of giving informed consent as subjects in medical research must be voluntary”.
[122] Australia is a party to the seven core international human rights treaties, including the International Covenant on Civil and Political Rights.
[123] The Australian Human Right Commission Act 1986 (Cth) gives effect to Australia’s obligations under the International Covenant on Civil and Political Rights, which provides in Article 7 that “no one shall be subjected without his free consent to medical or scientific experimentation”.
[124] In 1984, the American Association for the International Commission of Jurists (AAICJ) held an international colloquium in Siracusa, Italy, which was co-sponsored by the International Commission of Jurists. The focus of the colloquium was the limitation and derogation provisions of the International Covenant on Civil and Political Rights, and the outcome is a document that is referred to as the Siracusa Principles [https://www.icj.org/wp-content/uploads/1984/07/Siracusa-principles-ICCPR-legal-submission-1985-eng.pdf].
[125] The introductory note to the Siracusa Principles commences in the following terms:
“It has long been observed by the American Association for the International Commission of Jurists (AAICJ) that one of the main instruments employed by governments to repress and deny the fundamental rights and freedoms of peoples has been the illegal and unwarranted Declaration of Martial Law or a State of Emergency. Very often these measures are taken under the pretext of the existence of a “public emergency which threatens the life of a nation” or “threats to national security”.
The abuse of applicable provisions allowing governments to limit or derogate from certain rights contained in the International Covenant on Civil and Political Rights has resulted in the need for a closer examination of the conditions and grounds for permissible limitations and derogations in order to achieve an effective implementation of the rule of law. The United Nations General Assembly has frequently emphasised the importance of a uniform interpretation of limitations on rights enunciated in the Covenant.”
[126] Paragraph 58 of the Siracusa Principles under the heading of Non-Derogable Rights provides:
No state party shall, even in time of emergency threatening the life of the nation, derogate from the Covenant’s guarantees of the right to life; freedom from torture, cruel, inhuman or degrading treatment or punishment, and from medical or scientific experimentation without free consent; freedom from slavery or involuntary servitude; the right not be be imprisoned for contractual debt; the right not to be convicted or sentenced to a heavier penalty by virtue of retroactive criminal legislation; the right to recognition as a person before the law; and freedom of thought, conscience and religion. These rights are not derogable under any conditions even for the asserted purpose of preserving the life of the nation. (emphasis added)
[127] This is consistent with Article 4 of the International Covenant on Civil and Political Rights.
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Can COVID vaccinations be mandated by employers on health and safety grounds?
[130] The short answer to this question, in almost every case, is no.
[131] The fundamental starting point here is the answer to the question – what is the risk? All risk controls are (or should be) designed to address an identified risk. The risk needs to be a real risk and not a perceived risk. The real risk for employers is that a person who has COVID will spread COVID to others within the workplace.
[132] The risk of spreading COVID only arises with a person who has COVID. This should be apparent and obvious. There is no risk associated with a person who is unvaccinated and does not have COVID, notwithstanding the misleading statements by politicians that the unvaccinated are a significant threat to the vaccinated, supposedly justifying “locking out the unvaccinated from society” and denying them the ability to work.
[133] The primary duty of care for employers under health and safety law requires the employer to ensure health and safety so far as is reasonably practicable by eliminating risks to health and safety, and if this is not reasonably practicable, risks must be minimised so far as is reasonably practicable.
[134] There is nothing controversial in stating that vaccines do not eliminate the risk of COVID, given that those who are vaccinated can catch and transmit COVID. By way of one example, a report issued by the Centres for Disease Control and Prevention (CDC) in the United States on 6 August 2021 [https://www.cdc.gov/mmwr/volumes/70/wr/mm7031e2.htm] looked at an outbreak of COVID in Massachusetts during July 2021. Of the 469 COVID cases identified, 74% were fully vaccinated. Of this group, 79% were symptomatic. In total, 5 people required hospitalisation and of these, 4 were fully vaccinated. This is not an anomaly – the data from many countries and other parts of the United States provides a similar picture, although obtaining similar data from the United States will now be problematic given the decision by the CDC on 1 May 2021 to cease monitoring and recording breakthrough case information unless the person is hospitalised or dies. What is clear, however, is that the vaccine is not an effective control measure to deal with transmission of COVID by itself.
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[139] Critically, there is another alternative to vaccines to assist employers in meeting their WHS obligations, that being testing. Given there is no doubt that those who are fully vaccinated can catch and transmit the virus, testing (whether rapid antigen or otherwise) will provide employers with a level of comfort that a worker does not have COVID and therefore will not transmit COVID to others (that being the risk that is to be managed) in the workplace.
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[142] Vaccines have not been broadly mandated on health and safety grounds in most countries. For example, despite what has been reported in Australia, most of the European Union (EU) and the Scandinavian countries have not actually mandated vaccinations for travel purposes. EU citizens can travel freely now if any one of three options are satisfied, that being a vaccine, a negative COVID test, or evidence of having recently recovered from COVID (in recognition of the natural immunity that comes with having recovered from having COVID). The EU have provided these options so that people who are not vaccinated will not be discriminated against when travelling across the EU. In other words, all those who are not vaccinated can get tested for COVID and travel freely [https://ec.europa.eu/info/live-work-travel-eu/coronavirus-response/safe-covid-19-vaccines-europeans/eu-digital-covid-certificate_en#are-citizens-who-are-not-yet-vaccinated-able-to-travel-to-another-eu-country].
[143] In a scientific brief prepared by the World Health Organisation (WHO) dated 10 May 2021 on COVID natural immunity, the WHO found that “within four weeks following infection, 90-99% of individuals infected with [COVID] virus develop detectable neutralising antibodies”. Further, “available scientific data suggests that in most people immune responses remain robust and protective against reinfection for at least 6-8 months after infection (the longest follow up with strong scientific evidence is currently approximately 8 months)”.
[144] The science is clear that those who have recovered from COVID have at least the same level of protection from COVID as a person who has been vaccinated. There can be absolutely no legitimate basis, then, for mandating vaccination for this group of people.
[145] In short, there is no justifiable basis for employers to mandate COVID vaccinations to meet their health and safety obligations when other options are available to appropriately manage the risk.
[146] Finally, it should be clearly understood that employers who mandate vaccinations will be liable for any adverse reactions their workers may experience, given this is a foreseeable outcome for some people.
Use of Public Health Orders to mandate vaccinations
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[172] The initial predictions of a 60% infection rate from COVID with a 1% death rate thankfully did not materialise. It is now time to ask whether the ‘cure’ is proportionate to the risk, and the answer should be a resounding no. When deciding now what is actually reasonable, necessary and proportionate in terms of any response to COVID, governments and employers should actively avoid the hysteria and fear-mongering that is now so prevalent in the public discourse, and which will cloud rational, fact based decision making.
[173] In summary, the powers to make PHOs cannot lawfully be used in a way that is punitive, and human rights are not suspended during states of emergency or disaster. The current PHOs have moved well past the minimum necessary to achieve public health aims, and into the realm of depravation. It is not proportionate, reasonable or necessary to “lock out” those who are unvaccinated and remove their ability to work or otherwise contribute to society. PHOs, by their nature, are designed and intended for short term use in the event of an emergency or crisis. They are not intended to be an ongoing vehicle to enforce significant depravations of our civil liberties. The COVID pandemic started over 20 months ago. The time is fast approaching where the reliance on PHO’s will no longer be justified on public health grounds, particularly where there is such a significant intrusion on individual liberties.
Disability discrimination
[174] It is highly likely that the dismissal of an employee who fails to have the COVID vaccine will breach the Disability Discrimination Act 1992 (DD Act). The DD Act makes it unlawful to discriminate against a person, including in employment and in accessing services, because of a disability.
[175] The definition of disability in s.4 of the DD Act includes “the presence in the body of organisms capable of causing disease or illness”. It includes a disability that presently exists, or previously existed but no longer exists, or may exist in the future, or is imputed to a person.
[176] The Explanatory Memorandum to the DD Act discusses the definition of disability as being:
“intended to include physical, sensory, intellectual and psychiatric impairment, mental illness or disorder, and provisions relating to the presence in the body of organisms capable of causing disease. These provisions have broad application, for example, they are intended to ensure that persons with HIV/AIDS come within the definition of disability for the purposes of this Bill.”
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[178] Section 48 of the DD Act provides an exemption for discrimination that is necessary to protect public health where a person’s disability is an infectious disease, however being unvaccinated is not an infectious disease. What logically follows is that an employer who dismisses a person because they do not have a COVID vaccine will breach the DD Act.
Final comments
[179] Research in the context of COVID-19 has shown that many who are ‘vaccine-hesitant’ are well educated, work in the health care industry and have questions about how effective the vaccines are in stopping transmission, whether they are safe to take during pregnancy, or if they affect fertility. [Maya Goldenberg, Vaccine Hesitancy: Public Trust, Expertise, and the War on Science, 2021] A far safer and more democratic approach to addressing vaccine hesitancy, and therefore increasing voluntary vaccination uptake, lies in better education, addressing specific and often legitimate concerns that people may hold, and promoting genuine informed consent. It does not lie in censoring differing opinions or removing rights and civil liberties that are fundamental in a democratic nation. It certainly does not lie in the use of highly coercive, undemocratic and unethical mandates.
[180] The statements by politicians that those who are not vaccinated are a threat to public health and should be “locked out of society” and denied the ability to work are not measures to protect public health. They are not about public health and not justified because they do not address the actual risk of COVID. These measures can only be about punishing those who choose not to be vaccinated. If the purpose of the PHOs is genuinely to reduce the spread of COVID, there is no basis for locking out people who do not have COVID, which is easily established by a rapid antigen test. Conversely, a vaccinated person who contracts COVID should be required to isolate until such time as they have recovered.
[181] Blanket rules, such as mandating vaccinations for everyone across a whole profession or industry regardless of the actual risk, fail the tests of proportionality, necessity and reasonableness. It is more than the absolute minimum necessary to combat the crisis and cannot be justified on health grounds. It is a lazy and fundamentally flawed approach to risk management and should be soundly rejected by courts when challenged.
[182] All Australians should vigorously oppose the introduction of a system of medical apartheid and segregation in Australia. It is an abhorrent concept and is morally and ethically wrong, and the anthesis of our democratic way of life and everything we value.
[183] Australians should also vigorously oppose the ongoing censorship of any views that question the current policies regarding COVID. Science is no longer science if it a person is not allowed to question it.
[184] Finally, all Australians, including those who hold or are suspected of holding “anti-vaccination sentiments”, are entitled to the protection of our laws, including the protections afforded by the Fair Work Act. In this regard, one can only hope that the Majority Decision is recognised as an anomaly and not followed by others.
