Kimber v Sapphire Coast Community Aged Care Ltd

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Kimber v Sapphire Coast Community Aged Care Ltd
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Court Fair Work Commission
Full case nameJennifer Kimber v Sapphire Coast Community Aged Care Ltd
Decided27 September 2021
Citation(s) [2021] FWCFB 6015
Case history
Prior action(s) Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWC 1818
Case opinions
MajorityVice President Hatcher, Commissioner Riordan
DissentDeputy President Dean

Kimber v Sapphire Coast Community Aged Care Ltd was a 2021 decision by the full bench of the Fair Work Commission. It held that it was lawful for an employer to fire an employee on the basis of their refusal to receive vaccination for influenza. [1] [2]

Contents

Background

Jennifer Kimber was a receptionist at Sapphire Coast Community Aged Care who refused to comply with a direction to receive a vaccine for influenza. [3] Following this, Sapphire Coast Community Aged Care dismissed Kimber, which led to Kimber filing a claim for unfair dismissal.

Previous vaccinations

Kimber had received a flu vaccine in 2015 with no issue, but claimed to suffer an adverse reaction in 2016. [4] Following this incident, evidence suggested that Kimber did not see a doctor, take time off from work, or tell management about her purported 'severe allergic reaction' to the vaccine. The only knowledge management had of Kimber's condition was that of comments she had made to other members of staff about seeing a naturopath for skin problems. [5]

Following the alleged adverse reaction in 2016, Kimber did not receive a flu vaccine for three years following the incident. In 2021, due to the COVID-19 pandemic, this became a matter of contention.

Insufficient vaccination exemption evidence provided by Kimber

At the beginning of the COVID-19 pandemic, the New South Wales government introduced laws that required all aged care workers to receive a flu vaccination if it was available to them. [6] Sapphire required staff members to get vaccinated or provide proof of a valid exemption in the form of a letter from their General Practitioner (GP) or specialist. [7] Kimber did not do this; instead, she provided a letter, riddled with typos, from a traditional Chinese medicine practitioner. [8] This letter included insufficient references to Kimber's alleged adverse reaction, and was deemed to not be founded on understandings of medical science. [9] As such, Sapphire required further documentation from Kimber, who then supplied a letter of support from a GP, whom Kimber had no evidence of consulting with prior to April 2020. It was found that the letter was based on assertions made by Kimber, rather than on an assessment of Kimber's condition. [10]

Due to the letter being insufficient, Kimber took carer's leave in hopes that the flu vaccine mandate would be temporary. In this time, she sent a letter to the CEO of Sapphire, indicating that she would like a number of concerns addressed before she consulted with an immunologist. These concerns suggested that her objection to receiving the influenza vaccination extended beyond her purported adverse injury. [11]

Termination of employment

At the expiry of the March order, Kimber intended to return to work at Sapphire on a reduced basis. [12]

The NSW government, however, made a second order of a similar nature to the one made in March that prevented Kimber from returning. Sapphire then sent an email to Kimber, indicating that they may have no other choice but to terminate her contract of employment with them, as her refusal to get vaccinated prevents her from working her required hours. The correspondence also required her to attend a phone meeting with her manager so she could show cause as to why her employment with Sapphire should not be terminated. [13] The following day, Kimber returned to the Sapphire and was escorted off the premises; she claimed that she had not seen the email. [14]

Kimber returned to the GP she had seen previously and requested him to write a letter of support, as well as filling out the form now required by the June order. [15]

The CEO rejected Kimber's reasons for exemption, based on the information provided in the Australian Immunisation Handbook and the advice provided in a press release by the Chief Medical Officer. He further stated, that, even if Kimber's exemptions were valid, she would still be unable to perform her duties as required. [16] As such, Sapphire called Kimber and sent a letter to notify her that she had been dismissed. [17] Following this, Kimber filed a claim for unfair dismissal. [18]

Public misconception

The case garnered significant public attention, with many individuals wrongfully believing that COVID-19 vaccine mandates were unlawful, due to the dissenting opinion of Deputy President Dean. [19] [20]

Related Research Articles

<span class="mw-page-title-main">Vaccination</span> Administration of a vaccine to protect against disease

Vaccination is the administration of a vaccine to help the immune system develop immunity from a disease. Vaccines contain a microorganism or virus in a weakened, live or killed state, or proteins or toxins from the organism. In stimulating the body's adaptive immunity, they help prevent sickness from an infectious disease. When a sufficiently large percentage of a population has been vaccinated, herd immunity results. Herd immunity protects those who may be immunocompromised and cannot get a vaccine because even a weakened version would harm them. The effectiveness of vaccination has been widely studied and verified. Vaccination is the most effective method of preventing infectious diseases; widespread immunity due to vaccination is largely responsible for the worldwide eradication of smallpox and the elimination of diseases such as polio and tetanus from much of the world. However, some diseases, such as measles outbreaks in America, have seen rising cases due to relatively low vaccination rates in the 2010s – attributed, in part, to vaccine hesitancy. According to the World Health Organization, vaccination prevents 3.5–5 million deaths per year.

<span class="mw-page-title-main">Influenza vaccine</span> Vaccine against influenza

Influenza vaccines, also known as flu shots, are vaccines that protect against infection by influenza viruses. New versions of the vaccines are developed twice a year, as the influenza virus rapidly changes. While their effectiveness varies from year to year, most provide modest to high protection against influenza. The United States Centers for Disease Control and Prevention (CDC) estimates that vaccination against influenza reduces sickness, medical visits, hospitalizations, and deaths. Immunized workers who do catch the flu return to work half a day sooner on average. Vaccine effectiveness in those over 65 years old remains uncertain due to a lack of high-quality research. Vaccinating children may protect those around them.

<span class="mw-page-title-main">Swine influenza</span> Infection caused by influenza viruses endemic to pigs

Swine influenza is an infection caused by any of several types of swine influenza viruses. Swine influenza virus (SIV) or swine-origin influenza virus (S-OIV) refers to any strain of the influenza family of viruses that is endemic in pigs. As of 2009, identified SIV strains include influenza C and the sub-types of influenza A known as H1N1, H1N2, H2N1, H3N1, H3N2, and H2N3.

<span class="mw-page-title-main">Vaccine hesitancy</span> Reluctance or refusal to be vaccinated or have ones children vaccinated

Vaccine hesitancy is a delay in acceptance, or refusal, of vaccines despite the availability of vaccine services and supporting evidence. The term covers refusals to vaccinate, delaying vaccines, accepting vaccines but remaining uncertain about their use, or using certain vaccines but not others. The scientific consensus that vaccines are generally safe and effective is overwhelming. Vaccine hesitancy often results in disease outbreaks and deaths from vaccine-preventable diseases. Therefore, the World Health Organization characterizes vaccine hesitancy as one of the top ten global health threats.

The National Vaccine Information Center (NVIC), founded under the name Dissatisfied Parents Together (DPT) in 1982, is an American 501(c)(3) organization that has been widely criticized as a leading source of fearmongering and misinformation about vaccines. While NVIC describes itself as the "oldest and largest consumer-led organization advocating for the institution of vaccine safety and informed consent protections", it promotes false and misleading information including the discredited claim that vaccines cause autism, and its campaigns portray vaccination as risky, encouraging people to consider "alternatives." In April 2020, the organization was identified as one of the greatest disseminators of COVID-19 misinformation on Facebook.

The Joint Committee on Vaccination and Immunisation (JCVI) is an independent expert advisory committee that advises United Kingdom health departments on immunisation, making recommendations concerning vaccination schedules and vaccine safety. It has a statutory role in England and Wales, and health departments in Scotland and Northern Ireland may choose to accept its advice.

A vaccination policy is a health policy adopted in order to prevent the spread of infectious disease. These policies are generally put into place by State or local governments, but may also be set by private facilities, such as workplaces or schools. Many policies have been developed and implemented since vaccines were first made widely available.

<span class="mw-page-title-main">Pandemrix</span> Flu vaccine

Pandemrix is an influenza vaccine for influenza pandemics, such as the 2009 flu pandemic. The vaccine was developed by GlaxoSmithKline (GSK) and patented in September 2006.

<span class="mw-page-title-main">2009 swine flu pandemic vaccine</span> Protection against the H1N1/09 virus

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The Australian Vaccination-risks Network Inc., formerly known as the Australian Vaccination-Skeptics Network (AVsN), and before that known as the Australian Vaccination Network (AVN), is an Australian anti-vaccination pressure group registered in New South Wales. As Australia's most controversial anti-vaccination organisation, it has lobbied against a variety of vaccination-related programs, downplayed the danger of childhood diseases such as measles and pertussis, championed the cause of alleged vaccination victims, and promoted the use of ineffective alternatives such as homeopathy.

<span class="mw-page-title-main">Vaccine Choice Canada</span> Canadian anti-vaccination group

Vaccine Choice Canada (VCC) is Canada's main anti-vaccination group. It was founded in the 1980s under the name Vaccination Risk Awareness Network (VRAN) and adopted its current name in 2014. The group has been contributing to vaccine hesitancy in Canada, encouraging citizens to forgo immunization and legislators to support anti-vaccine regulations and legislation.

<span class="mw-page-title-main">Vaccination policy of the United States</span> Overview of the vaccination policy in the United States of America

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<span class="mw-page-title-main">Sarah Gilbert</span> British vaccinologist

Dame Sarah Catherine Gilbert is an English vaccinologist who is a Professor of Vaccinology at the University of Oxford and co-founder of Vaccitech. She specialises in the development of vaccines against influenza and emerging viral pathogens. She led the development and testing of the universal flu vaccine, which underwent clinical trials in 2011.

The Stop Mandatory Vaccination website and associated Facebook group are some of the major hubs of the American anti-vaccination movement. It was established by anti-vaccination activist Larry Cook in 2015.

Nicola Mary Turner is a New Zealand public health advocate who is an honorary Professor at the University of Auckland and Director of the Immunisation Advisory Centre, an organisation that advises the New Zealand medical profession and the New Zealand Government. She has contributed to advisory committees for the New Zealand Ministry of Health, is a spokesperson for the Child Poverty Action Group and works in general practice. Much of her research and outreach has focused on improving immunisation coverage and closing equity gaps for the national schedule vaccine delivery in New Zealand and she has commented publicly on these issues during COVID-19 in New Zealand.

<span class="mw-page-title-main">COVID-19 vaccination in the United Kingdom</span> Immunisation against COVID-19

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<span class="mw-page-title-main">COVID-19 vaccination in Australia</span> Ongoing COVID-19 vaccine program in Australia

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<span class="mw-page-title-main">COVID-19 vaccination in New Zealand</span> Ongoing COVID-19 vaccine programme in New Zealand

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<span class="mw-page-title-main">COVID-19 vaccine hesitancy in the United States</span> Reluctance by those living in the USA to be vaccinated with a COVID-19 vaccine

COVID-19 vaccine hesitancy in the United States is the sociocultural phenomenon of individuals refusing or displaying hesitance towards receiving the COVID-19 vaccine. COVID-19 vaccine hesitancy in the United States can be considered as part of the broader history of vaccine hesitancy.

References

  1. ↑ Kimber v Sapphire Coast Community Aged Care Ltd, 6015 (FWCFB27 September 2021).
  2. ↑ "Sacking of NSW aged care worker who refused flu vaccine upheld". the Guardian. 30 April 2021. Retrieved 4 October 2022.
  3. ↑ Munton, Joellen Riley (29 September 2021). "You, vaccination and the law". The Sydney Morning Herald. Retrieved 4 October 2022.
  4. ↑ Doran, Matthew (27 September 2021). "Fair Work ruling on woman fired for refusing flu jab reveals the divide on COVID-19 vaccine mandate". ABC News. Retrieved 4 October 2022.
  5. ↑ Kimber v Sapphire Coast Community Aged Care Ltd, 6015 , 3(FWCFB27 September 2021).
  6. ↑ "Public Health (COVID-19 Aged Care Facilities) Order (No 3) 2020". section 5(d), order of 24 March 2020 (PDF).
  7. ↑ Kimber v Sapphire Coast Community Aged Care Ltd, 6015 , 8(FWCFB27 September 2021).
  8. ↑ Kimber v Sapphire Coast Community Aged Care Ltd, 6015 , 9(FWCFB27 September 2021).
  9. ↑ Kimber v Sapphire Coast Community Aged Care Ltd, 6015 , 10(FWCFB27 September 2021).
  10. ↑ Kimber v Sapphire Coast Community Aged Care Ltd, 6015 , 8(FWCFB27 September 2021).
  11. ↑ Kimber v Sapphire Coast Community Aged Care Ltd, 6015 , 16-17(FWCFB27 September 2021).
  12. ↑ Kimber v Sapphire Coast Community Aged Care Ltd, 6015 , 18(FWCFB27 September 2021).
  13. ↑ Kimber v Sapphire Coast Community Aged Care Ltd, 6015 , 22(FWCFB27 September 2021).
  14. ↑ Kimber v Sapphire Coast Community Aged Care Ltd, 6015 , 23(FWCFB27 September 2021).
  15. ↑ Kimber v Sapphire Coast Community Aged Care Ltd, 6015 , 24(FWCFB27 September 2021).
  16. ↑ Kimber v Sapphire Coast Community Aged Care Ltd, 6015 , 29(FWCFB27 September 2021).
  17. ↑ Kimber v Sapphire Coast Community Aged Care Ltd, 6015 , 30(FWCFB27 September 2021).
  18. ↑ Kimber v Sapphire Coast Community Aged Care Ltd, 6015 , 31(FWCFB27 September 2021).
  19. ↑ Sharp, Amber; McMahon, Nicola (29 September 2021). "Don't believe the hype: dismissal of employee who refused to be vaxxed was not unfair". McCullough Robinson Lawyers. Retrieved 21 October 2021.
  20. ↑ Sutton, Rachael; Cantrill, Louise; Cooper, David (27 September 2021). "Mandatory Vaccinations in Aged Care - Kimber v Sapphire Coast Community Aged Care Ltd – Dismissal Upheld on Appeal by Majority of Full Bench of Fair Work Commission". Mills Oakley. Retrieved 21 October 2021.
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