I’ve been reading the first half of Commissioner Dean’s dissent in the Kimber decision relating to Ms Kimber’s refusal to take the flu vaccine in 2020 in purported contravention of a Public Health Order (PHO). The first thing that struck me is that previous to this PHO, taking the flu vax in aged care was entirely voluntary, at least, in NSW. Then all of a sudden, in March 2020, in the midst of a government induced crisis regarding COVID, it was decided that the flu vax was now absolutely necessary in order to undertake work in aged care. Why not previously? This is especially peculiar so given that 2017 was supposedly a particular severe flu season , especially in aged care. That seems a lot like setting the ground work for COVID vaccine mandates in aged care, to begin with, as soon as they are available, and establishing the precedent for vaccine mandates further afield as well.

The second peculiar thing about the decision is that they affirm Sapphire Coast’s second-guessing of Dr Mackay’s judgement that Ms Kimber suffered a contraindication following the her flu vaccination in 2016. Commissioner Dean writes:

[86] The Dismissal letter also makes clear that despite the second letter from Dr Mackay and the completed IVMC form, Sapphire took the view that her medical contraindication did not qualify as a contraindicator based on the Media Release, and as such the exemption provisions did not apply. In doing so, Sapphire disregarded the medical opinion of a registered medical practitioner and instead replaced it with its own opinion based on the Media Release.

[87] The Commissioner endorsed the approach adopted by Sapphire to apply the ‘advice’ in the Media Release as to absolute contraindications rather than accept other categories of contraindications, as was clearly contemplated in the IVMC Form. To rely on a Media Release as medical ‘advice’ to base a decision to dismiss an employee in these circumstances is simply wrong. The Commissioner, having acknowledged that the Media Release had “absolutely no force at law”, went on to find that “it would have been foolhardy indeed for Mr Sierp to purport to put his own gloss on, or ignore, what was said by the CMO and, for example, to substitute his own opinion/s for those of the CMO as to matters concerning contraindications to influenza vaccination – whether based on his own reading of the Australian Immunisation Handbook, or based on the reading for which the applicant contended in the hearing, or otherwise”. However this is exactly what the CEO of Sapphire did with respect to the medical advice provided by Dr Mackay. He ignored the medical advice he had been provided with and instead substituted his own opinion based on a Media Release.

[88] If this approach were to be correct, the effect is that it is open for employers to simply disregard the professional opinion of a medical practitioner and instead make their own unqualified medical diagnoses, or form their own views about circumstances in which medical conditions may or may not be contraindications to a vaccine. Sapphire did not act in accordance with the medical advice that was provided by Ms Kimber, nor did it obtain any medical advice to counter what was provided by Dr Mackay. The result of the Majority Decision in part is that it undermines the validity and reliability of medical advice received from a medical practitioner.

Further, the Majority Decision strangely indicated that Ms Kimber was obliged to prove that her medical condition was caused by the flu vaccination in 2016 which is not the case at all. Dean writes:

[91] Further, the Commissioner erred in finding that Ms Kimber was required to establish that the Condition (ie the medical condition she said she suffered after the 2016 flu shot) was caused by the 2016 flu shot. Again, all that was required of Ms Kimber to be exempt from the June PHO was a properly completed IVMC form. In any event, Dr Mackay provided a clear and unequivocal medical opinion that her allergic reaction was a reaction to the vaccine in the second letter when he said:

“The patient suffered a severe allergic reaction to the influenza vaccine 4 years ago. This resulted in severe facial and neck swelling with a wide spread erythematous over her face, chest and arms. This rash lasted 10 months and required oral prednisolone to resolve it. Jennifer has supplied photos of the rash which I have attached as supporting evidence.

In my opinion the history as stated is consistent with the above, and therefore is a medical contraindication to having the influenza vaccine.”

Finally, and tellingly, the Majority Decision refer to Ms Kimber as an ‘antivaxxer’ even though she voluntarily undertook flu vaccination in 2015 and 2016 and only stopped following a severe reaction in 2016. Apparently, people that suffer severe allergic reactions to vaccinations, that require prescription medications over a period of 10 months, and who might now be reticent to have further vaccinations, are now to be maligned and marginalized as ‘antivaxxers’ even by juridical officers. Nevertheless, whether or not Ms Kimber was or was not an ‘antivaxxer’ is irrelevant:

Again, all that was required of Ms Kimber to be exempt from the June PHO was a properly completed IVMC form. In any event, Dr Mackay provided a clear and unequivocal medical opinion that her allergic reaction was a reaction to the vaccine in the second letter

That they refer to her in such a manner indicates something about their state of mind, not hers.

In sum, this entire process, from PHO to the Majority Decision, looks as if they were testing the employment law waters, probably interested in having a termination disputed in order to get a likely favourable decision and thus precedent from the FWC. They certainly found two Commissioners ready to give them one, whether or not Ms Kimber satisfied any medical exemption as provided by the June PHO. However, they were likely not expecting one of the three Commissioners providing a detailed dissent that exposed the weaknesses and injustices of the Majority decision.

Now on to the second half on the COVID vaccines which promises to be even more interesting.