Kimber v Sapphire Coast – Part 1

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.

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October 4, 2021 4:14 pm

Oh my! Apprehended bias here we come!

Old School Conservative
Old School Conservative
October 4, 2021 4:39 pm

Bias yes; doing what they are told, certainly.

October 4, 2021 5:47 pm

Just shut up and be administered our useless, unnecessary and dangerous chemical cocktails, prole, or else you will be denounced and humiliated, before being shipped off at 2:30am in the morning to a “labore macht well” kamp.

The “New (COVID Normal) World Order” isn’t going to implement itself.

This is now where we are at.

Miss Anthropist
Miss Anthropist
October 4, 2021 6:53 pm

The fix is in. It is so obvious looking at it.
Quisling sellouts and fascist myrmadons in all levels of Government..
Still that matter was in Queensland . There’s something in the water there.

October 5, 2021 4:24 am

Still that matter was in Queensland . There’s something in the water there.

It’s New South Wales, the Sapphire Coast is Bermagui, Tathra, Merimbula, Pambula and Eden.

Mark M
Mark M
October 5, 2021 6:43 am

Good luck enforcing “fully vaccinated/double jabbed” in a court …

Israel today: 88% “fully vaccinated/double jabbed”
Israel tomorrow: 52% …

From tomorrow the new definition of “fully vaccinated = 3 jabs” become effective.
All “fully vaccinated = 2 jabs” become “unvaccinated” and their COVID passport revoked.

Mark M
Mark M
October 5, 2021 6:56 am

So Astrazeneca and Pfizer were paying lobbyists to direct Australia’s ‘leaders’ to push the “vaccine”?

Clive Palmer leaves nothing unsaid …

Old bloke
Old bloke
October 5, 2021 10:43 am

Is this decision going to be appealed in a higher court?

October 5, 2021 10:47 am

Ignoring a severe medical reaction in order to push the same medical treatment on the lady again?

Thats just medical malpractice.
The doc who administers her next jab better be very, very, very well insured.

From the yank CDC.
Who shouldnt get a flu shot.
People who have had a severe allergic reaction to a dose of influenza vaccine should not get that flu vaccine again and might not be able to receive other influenza vaccines. If you have had a severe allergic reaction to an influenza vaccine in the past, it is important to talk with your health care provider to help determine whether vaccination is appropriate for you.

Which is significantly different to the Australian immunization handbook which says it has to be life threatening Anaphylaxis to qualify for an exemption.

The only absolute contraindications to influenza vaccines are:

anaphylaxis after a previous dose of any influenza vaccine
anaphylaxis after any component of an influenza vaccine

This is pretty fucked up.
It negates one of the first of the Hippocratic principles, ‘first do no harm”.

To take it to extremes, its ok if it paralyzes you, as long as it doesnt compromise your ability to breathe…

This has come about because the government thinks it “owns’ us and we cant be trusted to do the right thing.
As much as i hate the Yank litigation industry surrounding their medical system, it is a better protection than having a government determined to reduce its ‘overall” costs of people getting sick by possibly inflicting harm on individuals as a trade off its willing to make.

Elizabeth Hart
October 5, 2021 11:21 am

For another perspective on what’s happening at the moment, see for example my recent email to Michael Miller, Executive Chairman of News Corp Australia: Mandated COVID-19 vaccination and News Corp Australia.

News Corp Australia, aka Murdoch media, is wielding enormous influence over COVID-19 vaccination policy in Australia via biased articles in its publications…but it is not disclosing News Corp Australia’s serious conflict of interest…

See more in my email linked to above, including discussion about ‘informed consent’, including reference to a letter I’ve received recently from AHPRA, the regulator of medical practitioners.

Elizabeth Hart
October 5, 2021 12:14 pm

I’ve challenged AHPRA about the conflict between the Morrison and State Governments’ aggressive covid ‘vaccine’ rollout and the right to informed consent before a medical intervention, i.e. vaccination. My emails to AHPRA are linked to in my email to Michael Miller linked to above.

Here’s the link to the letter I finally received from Amanda Watson, AHPRA’s National Complaints Manager:

Note in particular:

“Practitioners have an obligation to obtain informed consent for treatment, including
vaccination. Informed consent is a person’s voluntary decision about health care that is made
with knowledge and understanding of the benefits and risks involved. There is more
information about informed consent in each National Board’s Code of Conduct or equivalent.

I confirm that practitioners’ obligations to provide accurate information and advice about
COVID-19 vaccination based on up to date and reputable sources of information about
COVID-19 vaccines also apply when obtaining informed consent for COVID-19 vaccination.”

“Informed consent is a person’s voluntary decision…”

How can you make a ‘voluntary decision’ about fast-tracked experimental injections you’re being coerced into having by politicians, employers and the media…?

Miss Anthropist
Miss Anthropist
October 5, 2021 1:36 pm

Thanks been locked up too long to remember my toponomology.
In which case the dissenting opinion is even braver. The judiciary et al,have been got at for years here.

Tom Atkinson
October 5, 2021 3:48 pm

Very well done, Elizabeth Hart.

I read your letter to News Corp. Like many other Cats, I got so fed up with their censorship of my comments that I cancelled my subscription.

Elizabeth Hart
October 6, 2021 5:56 pm

Thanks Tom.
The Murdoch angle is very serious, and one I’ve been trying to expose for years…
In this regard, please see my email to Scott Morrison: No Jab, No Pay/No Play – coercive coronavirus vaccination in Australia – PM Scott Morrison and the Murdoch Media 18 February 2021.

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