Jennifer Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWCFB 6015

[2021] FWCFB 6015

Jennifer Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWCFB 6015 | Case summary | Zoe

[8]

[2] The basic facts of the matter, with some additional commentary, are as follows. Ms Kimber commenced employment with Sapphire at Imlay House in 2013. She had for the previous five years worked in the kitchen at Imlay House as an employee of a catering company. Sapphire then employed her as a clerk, and she worked at the reception counter. Part of her duties was to greet visitors and escort them to the residents' rooms.

[3] Sapphire appears at some stage to have arranged for influenza vaccinations to be administered to employees at Imlay House. Ms Kimber had such a vaccination on 22 April 2015. There was no evidence that this caused any adverse effects. She had a further vaccination on 27 April 2016, which was administered to her by a nurse in the employ of Sapphire. Her evidence was that she subsequently suffered a "major and debilitating skin inflammation" which "covered the top part of my body, my face and neck with internal organs also affected" and "which persisted for many months". Ms Kimber's stated opinion was that this was "a severe allergic reaction" to the influenza vaccination. However:

there was virtually no detail given by Ms Kimber about this condition; for example, she did not say how long after the vaccination the condition began, she did not explain why she thought it was an allergic reaction to the vaccination, and she did not explain which "internal organs" were affected or why she thought this was the case;

Ms Kimber did not give evidence that she ever sought medical treatment for this alleged condition, and there was no separate evidence of any contemporaneous examination or diagnosis by a medical practitioner (subject to one matter discussed later);

she never took any time off work because of this condition;

she never informed anyone in Sapphire's management at the time that she considered that she had suffered an adverse reaction to the influenza vaccination which they had caused to be administered; and

the evidence of Ms Anne Main, the Facility Manager at Imlay House, was that she was aware only that Ms Kimber had complained to other employees about "having issues with her skin, from time to time and that she was seeing a Naturopath and trialling alternative therapies for a skin condition".

[4] Ms Kimber declined to have influenza vaccinations in 2017, 2018 and 2019, and the management of Sapphire apparently took no issue with this.

[5] From about March 2020, Sapphire had to deal with the potential effects of the COVID-19 pandemic at Imlay House. It is not in dispute that the pandemic has been disproportionately fatal for the elderly and those in aged care. As at 30 August 2021, of the total of 999 deaths in Australia caused by COVID-19, 913 have been aged 70 and over, and 693 have been in residential aged care when infected.

[6] On 24 March 2020, the NSW Minister for Health made the Public Health (COVID-19 Aged Care Facilities) Order 2020 (March Order) pursuant to s 7 of the Public Health Act 2010 (NSW). The March Order relevantly required that an employee of the operator of a residential aged care facility not enter the premises of the facility if they did not "have an up-to-date vaccination against influenza, if the vaccination is available to the person".[2] The March Order also relevantly required that the operator of a residential aged care facility "take all reasonable steps" to ensure that a person did not enter or remain on the premises in contravention of this requirement.[3] Any exemption from the requirements of the March Order had to be made in writing by the Minister on the basis of satisfaction that the exemption was necessary to protect the health and well-being of the residents or staff of a residential aged care facility.[4] Contravention of the March Order constituted an offence. The March Order was expressed to expire on 22 June 2020.

[7] At the time of the March Order, there was of course no COVID-19 vaccine yet available. The policy purpose of the March Order (which represented a national approach emanating from advice given by the Australian Health Protection Principal Committee) was to minimise vulnerability to illness among aged residents, to keep the aged care workforce healthy, and to reduce demand on the health care system. On 3 April 2020, the Commonwealth Minister for Aged Care, Senator Colbeck, issued a media release (Media Release) which outlined this policy rationale for the influenza vaccination requirement and, relevantly, stated:

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[33] Professor Wakefield is a specialist immunologist with over 40 years' experience in the diagnosis and management of allergies, immune deficiencies and autoimmune diseases. He was previously Professor of Medicine and Head of the School of Medical Sciences at the University of New South Wales and, at the time of the hearing, was Professor of Medicine and Director of Immunology and Immunopathology at the South East Sydney Local Health District. He provided a report in relation to Ms Kimber's alleged condition, in preparation for which he was provided and examined the March Order, the June Order, the Australian Immunisation Handbook, the National Centre for Immunisation Research and Surveillance Influenza Vaccines for Australians fact sheet - March 2020, the letter of from Ms Kleine, Dr Mackay's letter of support and IVMC form, and the two photos of Ms Kimber which had accompanied the letter of support. In his report, Professor Wakefield stated, in summary, the following conclusions:

Skin rashes may represent an allergic reaction to influenza vaccines, but such reactions are usually limited in duration and may last several days to a week. It would be extraordinarily uncommon for such reactions to last for 10 months unless the reaction represented an exacerbation of a pre-existing condition such as atopic dermatitis. Given the appearance of Mrs Kimber's facial rash it is more likely that she suffers from a chronic form of dermatitis or angioedema which are rarely related to immunisation reactions.

Chronic urticaria with associated angioedema has been reported following influenza immunisation. Such reactions are treatable and are presently not considered a contraindication to further vaccination with the influenza vaccine.

It is more likely than not that Mrs Kimber's rash was unrelated to the influenza immunisation and represented a chronic dermatitis, the cause of which was not ascertained.

There are very few contraindications to influenza vaccination. The influenza virus is cultured in eggs and previously patients with egg allergy had been advised not to have immunisation against influenza. This contraindication has been revoked and egg allergy is no longer a contraindication to having such immunisation. The major contraindications to influenza vaccination are documented anaphylactic reactions to the vaccine or a component of the vaccine, a history of having Guillain-Barré syndrome within a 6 week period of receiving the vaccine or patients who are being treated with "check point inhibitors" as part of cancer therapy.

There is no evidence in the information provided that Mrs Kimber had one of these contraindications. The rash that she developed was not witnessed by her manager to be contemporaneously related to her vaccination and Dr Mackay does not provide evidence for such a contemporaneous relationship with a definitive diagnosis that would implicate influenza vaccination as being the cause of her rash. There is no evidence of her being tested, with skin prick tests, for allergy to the influenza vaccine.

Minor reactions are much more common after influenza vaccination and these usually do not require treatment or require simple analgesia (e.g. Panadol) as they are transient with local swelling and pain resolving within a week. Severe reactions such as urticaria, angioedema or adjuvant induced reactions require careful evaluation, investigation and treatment usually with corticosteroids to suppress the immune response. There are effective therapies for these conditions.

Influenza may have devastating effects on the residents at age care facilities with high rates of morbidity and mortality. This is a common cause of death in such patients who have lowered resistance, significant comorbidities and may develop pneumonia as a result of this illness. The recent Covid-19 pandemic has alerted everyone to the potentially devastating effects of an outbreak of a viral infection in older individuals. Similar devastating effects have occurred in older populations in previous influenza outbreaks. Influenza vaccination is one of the most successful therapies for limiting this potentially devastating illness. Employees of aged care facilities have a responsibility and duty of care to the residents of such facilities not to bring a risk of devastating infections, such as influenza, into the residential care facility. Mrs Kimber is also of an age group that would be more susceptible to the effects and complications of severe influenza infection and would be advised to have her annual influenza immunisation.

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[36] After setting out the facts of the matter in a manner which appears uncontroversial, the Commissioner in her decision gave consideration to each of the matters required to be taken into account under s 387(a). In relation to s 387(a) (whether there was a valid reason for the dismissal related to the person's capacity or conduct), the Commissioner first considered whether the proposition in Sapphire's dismissal letter that Ms Kimber "refused to be vaccinated" despite "multiple lawful and reasonable directions to be vaccinated against influenza". The Commissioner found that no direction in such terms had been given, although she accepted that "the respondent nonetheless firmly communicated to the applicant ... that having an up-to-date flu shot was necessary for attendance for work at Imlay House" and that "the practical import of the communications was effectively to indicate that the respondent expected or required the applicant ... to have a flu shot unless there was a medical contraindication as described in the CMO Advice". The Commissioner concluded that if a direction had in fact been given to have the influenza vaccination, such a direction would not only have been lawful, since it reflected the law as it applied in 2020 concerning employees within NSW aged care facilities, but would also as a corollary have been reasonable.

[37] In relation to the contention in the dismissal letter that Ms Kimber was unable to perform the inherent requirements of her job without the influenza vaccination, the Commissioner accepted that this was the case. The Commissioner found that if Ms Kimber was not permitted to enter or remain at Imlay House absent being vaccinated, she could not perform her receptionist role or the other clerical inherent requirements of her position. In doing so, the Commissioner said that she accepted Sapphire's submission concerning the IVMC form provided by Ms Kimber (such submissions being that there was no exemption from the vaccination requirement in the June Order because the IVMC form did not identify anything that was, in objective terms, a medical contraindication to the vaccine).

[38] The Commissioner also found that Sapphire acted in an objectively "prudent and reasonable way" in not permitting Ms Kimber to work at Imlay House and that Mr Sierp acted on his best understanding of the Australian Immunisation Handbook conditioned in the context of the advice of the Chief Medical Officer as set out in the Media Release. The Commissioner accepted Ms Kimber's submission that the Media Release had no force at law, but found 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". She found that Mr Sierp "took an objectively prudent and appropriate approach in his reliance on ... the Media Release" and that there was no change in the advice of the Chief Medical Officer in the time from the Media Release to the date of the dismissal, and concluded that there was "a valid capacity-related reason for the dismissal given the applicant chose not to have an up-to-date flu shot in 2020".

[39] In relation to s 387(b) and (c), the Commissioner found that Ms Kimber had been notified on the reason for her dismissal and was given an opportunity to respond. It is not necessary, in light of the appeal grounds, to refer to the Commissioner's findings as to s 387 (d)-(g).

[40] In relation to s 387(h) (any other matters that the Commission considers relevant), the Commissioner gave consideration to two matters. First, the Commissioner gave consideration as to whether Ms Kimber had in fact suffered from a medical condition as a result of her 2016 influenza vaccination. The Commissioner pointed to the following matters:

there was no medical evidence of a contemporaneous diagnosis that Ms Kimber's condition was attributable to the 2016 vaccination;

there was no identification of the doctors Ms Kimber consulted in 2016-17 or who made the diagnosis that the condition was attributable to the 2016 vaccination, nor any evidence of any specialist examination or treatment nor of any report being made about was described by Ms Kimber as a "severe reaction to a workplace-administered flu shot";

apart from Ms Kimber's assertion that the condition was attributable to the 2016 vaccination, there was a paucity of medical evidence about a connection between the vaccination and the condition;

there was no evidence that Ms Kimber reported her reaction to the vaccination to anyone employed by Sapphire, and the Commissioner accepted Ms Main's evidence that she was not informed nor aware of this until she first learned of it in 2020; and

no medical records of any consultation with a doctor or specialist in 2016-17 in connection with Ms Kimber's condition were put into evidence, notwithstanding that the condition required prescription medicine (oral prednisolone), presupposing Ms Kimber saw a medical practitioner for treatment.

[41] On the basis of these matters, the Commissioner determined that she was "not satisfied the condition resulted from the 2016 flu shot (or, approached another way, the applicant has not established a case on the evidence of cause-and-effect between the 2016 flu shot and the condition such as to demonstrate any medical contraindication to the influenza vaccination)". In relation to Dr Mackay's two letters and the IVMC form, the Commissioner found that it was reasonably clear that Dr Mackay did not personally examine Ms Kimber in 2016-17, that he proceeded on the basis of what Ms Kimber stated to him as having occurred in 2016-17 and the two undated photos she provided, and that the basis upon which he certified that Ms Kimber had a medical contraindication in the IVMC form was unclear. The Commissioner referred in some detail to Professor Wakefield's evidence, which she accepted, and said that her conclusion that "the applicant's evidentiary case did not establish that the condition was a reaction to the 2016 flu shot tends strongly to favour the correctness of the stance taken by the respondent in relation to the applicant concerning the flu shot issue and its adherence to the [Chief Medical Officer's] Advice concerning contraindications to influenza vaccination".

[42] Second, the Commissioner considered the question of whether a ministerial exemption might have been available under the June Order had it been applied for, and inclined to the view that Mr Sierp correctly assessed that an application for such an exemption should not be made because the grant of such an exemption would not be "necessary to protect the health and wellbeing of the residents or staff" of Imlay House.

[43] On the basis of these reasons, the Commissioner was not satisfied that Ms Kimber's dismissal was harsh, unjust or unreasonable, and dismissed her application.

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[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. Ms Kimber's contention before the Commissioner and before us was to the effect that the IVMC form signed by Dr Mackay was sufficient, by itself, to make the vaccination requirement inapplicable because it met the condition in clause 6(1)(d)(ii) of the June Order. In our view, the proper construction of clause 6(1)(d)(ii) is that the exemption from the vaccination requirement operates only where a medical practitioner certifies that the relevant person actually has what is, in objective terms, a medical contraindication to the vaccination. It plainly is not the case that the mere completion of the approved form on the basis of the identification of an alleged medical condition or episode that is not, in fact, a medical contraindication is sufficient to satisfy the condition in clause 6(1)(d)(ii).

[50] That position is confirmed by the approved form itself, which identifies four particular accepted medical contraindications and then provides the option for the certifying medical practitioner to identify any other type of contraindication which may be applicable. That this last option was not intended to give carte blanche to simply fill in any medical condition or episode at the discretion of the certifying doctor is made clear by the note which follows immediately thereafter. The note is to the effect that a non-anaphylactic egg allergy does not "qualify" for a medical contraindication. This demonstrates that anything that is filled out under the last option must be something which qualifies, objectively speaking, as a medical contraindication to the influenza vaccine.

[51] The evidence before the Commissioner conclusively demonstrated that the condition described in the IVMC form prepared by Dr Mackay, namely "Severe Facial Swelling and rash lasting 10 months from vaccine" is not a medical contraindication for the influenza vaccine which could satisfy the condition for exemption in clause 6(1)(d)(ii) of the June Order. It is apparent that, in deciding to dismiss Ms Kimber, Mr Sierp relied to a significant degree upon advice of the Chief Medical Officer as set out in the Media Release, and the Commissioner found that Mr Sierp's reliance in this respect was "objectively prudent and appropriate". We do not necessarily agree with the Commissioner that the Media Release, by itself, constituted a sound and sufficient basis for Mr Sierp to conclude that the condition identified in the IVMC form by Dr Mackay was not a medical contraindication for the influenza vaccine. However, it is apparent that Mr Sierp also had regard to the Australian Immunisation Handbook, which as earlier set out provides no support for the proposition that Ms Kimber's alleged skin condition constitutes an accepted medical contraindication.

[52] More importantly, and consistent with the principles stated in Jetstar Airways Pty Limited v Neeteson-Lemkes[9] and CSL Limited v Papaioannou,[10] Sapphire adduced an expert medical report from Professor Wakefield at the hearing to support its case that Ms Kimber did not have a medical contraindication for the influenza vaccine at the time of the dismissal and that, consequently, she was incapable of performing the inherent duties of her position. We have earlier set out the main conclusions stated by Professor Wakefield. Most significantly, he concluded that Ms Kimber's described condition was most probably chronic dermatitis unrelated to the influenza vaccine, but even if it was a rare case of urticaria/angioedema caused by the vaccine, this was a treatable condition which did not constitute a reason not to administer the influenza vaccine. That is, taking Ms Kimber's assertions about her skin condition at their highest, it did not constitute a medical contraindication.

[53] Professor Wakefield was subject to cross-examination, but the highest the challenge to his evidence rose was that he did not conduct a medical examination of Ms Kimber. That challenge went nowhere because, of course, Ms Kimber's condition had resolved years ago leaving nothing to examine. Professor Wakefield's analysis proceeded on the basis of the same information which Dr Mackay had, as far as can be ascertained, namely Ms Kimber's very limited description of her condition and the two undated photos. Ms Kimber called no evidence in response to Professor Wakefield's evidence; in particular, it is notable that she did not call Dr Mackay to give evidence. Ms Kimber adduced no other probative evidence that she had a medical contraindication to the influenza vaccine. Her opinion that her skin condition was caused by the vaccination was not only unqualified and (in strict evidentiary terms) inadmissible, she did not even give the barest of information about how she came to this opinion.

[54] The Commissioner was therefore entitled to accept Professor Wakefield's evidence, and indeed we consider it would have been legally unreasonable not to accept it. The consequence of the acceptance of his evidence was necessarily that Dr Mackay did not, objectively speaking, certify that Ms Kimber had a medical contraindication in the IVMC form, and that Ms Kimber was at the time of her dismissal legally prohibited from working at Imlay House. That plainly made the continuation of her employment untenable. In circumstances where Ms Kimber was given ample opportunity by her employer to get vaccinated or demonstrate that she had a medical contraindication, no other consideration could operate to render her dismissal unfair. In that context, the grant of permission to appeal would be entirely lacking in utility, since even if any of the appeal grounds were upheld, Ms Kimber's application could never ultimately succeed.

[55] Second, Ms Kimber's other appeal grounds are in any event lacking in merit. We do not propose to consider these grounds in detail to except to say that:

We reject the proposition that the Commissioner's finding that there was a valid reason for the dismissal was not founded on the prohibition in the June Order or that the Commissioner found a valid reason on a basis not advanced by Sapphire or disclosed by the Commissioner. The Commissioner's finding concerning Mr Sierp's conduct in effecting the dismissal related directly to the question of whether Ms Kimber had a medical contraindication such that the vaccination requirement in the June Order did not apply to her. Accordingly, Ms Kimber's contention that she was denied procedural fairness in respect of the Commissioner's consideration under s 387(a) is entirely misconceived.

The Commissioner made no adverse finding as to Ms Kimber's credibility (as to which, see below), so no question of the rule in Browne v Dunn arises. It was Ms Kimber's contention that she had previously suffered an adverse reaction to the influenza vaccine which constituted a medical contraindication to taking the vaccine in the future, and she bore the onus of satisfying the Commission as to this matter. Ms Kimber was served with Professor Wakefield's report prior to the hearing, and she was therefore on notice that her contention in this respect was placed in issue. She did not adduce any evidence in response to this report. It was not necessary in those circumstances for counsel for Sapphire to mechanically put the matters in Professor Wakefield's report to Ms Kimber in cross-examination to obtain her (unqualified) response. It was plainly open for the Commissioner to reject Ms Kimber's contention as to the existence of a medical contraindication.

There was no inadequacy in the Commissioner's reasons. She was not required to specifically address every submission advanced by Ms Kimber. The basis for her acceptance of Professor Wakefield's evidence was clearly explained.

The Commissioner did not make any findings in her decision that Mr Sierp made misleading or untruthful statements.

[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. Our doubt in this respect arises from the following matters:

the silence in her evidence as to her seeking any medical treatment in relation to her skin condition in 2016;

the lack of any reference to a previous adverse reaction to the vaccine in Ms Kleine's letter of 9 April 2020;

the fact that Ms Kimber did not report or disclose to anyone in the management of Sapphire that she had suffered an adverse reaction to a vaccination administered by one of Sapphire's employees as part of Sapphire's vaccination program in 2016 until she provided Dr Mackay's first letter of support on 4 May 2020, after she was stood down for refusing to take the vaccine;

Ms Kimber's general anti-vaccination position, as revealed in her letter to Mr Sierp of 12 May 2020; and

the inconsistencies in her accounts of her alleged allergic reaction to the vaccine, including as to its effect on her "internal organs".

[57] There is also an additional matter which arose in the appeal. The Commonwealth Government, shortly prior to the hearing of the appeal, announced that residential aged care workers would be required from 17 September 2021 to have received as a minimum a first dose of a COVID-19 vaccine as a condition of employment.[11] Given that Ms Kimber sought the remedy of reinstatement upon rehearing of her matter, an inquiry was made at the appeal hearing as to whether she was prepared to comply with this requirement. The response which Ms Kimber gave subsequent to the hearing, in correspondence from her solicitor, was as follows:

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[83] This is exactly what Ms Kimber did, prior to her dismissal. There is no dispute that the approved form was used, that being the IVMC form. It was issued by a medical practitioner, that being Dr Mackay. He certified that Ms Kimber had "a medical contraindication" as was required by the exemption provision. Dr Mackay specified what the medical contraindication was.

[84] The IVMC form, set out earlier in this decision, does not limit the possible contraindications to those mentioned in the Media Release. In this regard I note the following:

The Media Release references only the 'absolute' contraindications to the flu shot. Given the employment background of the CEO, he ought to have been aware that contraindications can be absolute or relative.

The Media Release, issued by the Commonwealth Minister for Aged Care, acknowledges that it is the responsibility for States and Territories to give effect to the requirements of the Australian Health Protection Principal Committee (AHPPC).

In NSW, the NSW Government relevantly made the June PHO which provided the exemption provisions and provided the template IVMC form.

The IVMC form clearly and unambiguously gives power to a registered medical practitioner, of which Dr Mackay is one, to certify that a person has a medical contraindication.

In addition to the specific (and absolute) contraindications listed, the IVMC form recognises and allows for the medical practitioner to certify a different contraindication (ie. 'other') and specify what that contraindication is.

The IVMC form then provides for the medical practitioner to certify that the person is not required to have an up-to-date vaccination against influenza prior to entry into a residential aged care facility, which is exactly what Dr Mackay did.

There is no basis for reading into the exemption provisions of the June PHO requirements (such as a requirement to consult a specialist immunologist for example) that are not there.

[85] The Dismissal letter clearly relies on the June PHO and the Media Release to decide that Ms Kimber was unable to fulfil the inherent requirements of her role. The reference to 'advice' from the CMO is only a reference to the Media Release, not actual medical advice.

[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.

[89] It is also relevant to highlight that Professor Wakefield confirmed that patients should follow the advice of their medical practitioner, which is exactly what Ms Kimber did. She was advised by Dr Mackay that she had a medical contraindication to the flu shot and should not have the flu shot. She prudently and appropriately followed his advice.

[90] The Commissioner was critical of the lack of evidence as to the basis for Dr Mackay's professional opinion that Ms Kimber had a medical contraindication. With respect, it is not for the Commission to decide whether a medical practitioner has a reasonable basis for forming a medical opinion, particularly where was no suggestion that the letters from Dr Mackay or the IVMC form were either a sham or fraudulent. There was no evidence to suggest that Dr Mackay was not fit or qualified to arrive at the opinion he reached. The Commissioner erred in deciding to reject the IVMC form.

[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:

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[92] The Majority Decision is critical of Ms Kimber because of what she did not do, in that she did not take time off work in 2016 when the Condition commenced, did not inform Sapphire at that time that she had had an adverse reaction to the flu shot, and did not provide evidence that she sought medical treatment at that time. With respect, this criticism misses the point. There was no requirement for her to do any of these things because the flu shot was not mandatory at the time, and whether she had the flu shot was not relevant to her ongoing employment. All Ms Kimber had to do was to decline to have the flu shot, which is what she did, and there was no issue taken by Sapphire in this regard.

[93] Further, Ms Kimber's opinion of whether she had a medical contraindication is, on one view, completely irrelevant. It was for a medical practitioner to form an opinion as to whether she had a medical contraindication, which is what Dr Mackay had done.

[94] The Majority Decision also expressed criticism of Dr Mackay. At paragraph 14 the inference is drawn that "the entire basis for Dr Mackay's assertion that Ms Kimber had previously suffered an adverse reaction to the influenza vaccination was what Ms Kimber had told him". With respect, this inference is properly able to be drawn. There was photographic evidence of the Condition which Dr Mackay had before him. There is no basis to conclude that he did not have access to her medical records, given medical records are normally able to be accessed by all doctors who practise in a particular medical centre. If any inference can be drawn, it is that she did attend a medical practitioner at the time because she was treated with a prescription-only medication, being prednisolone. Dr Mackay was not required to justify his medical opinion in either the IVMC form or the first and second letters, and so this criticism of him is unfounded and inappropriate.

[95] Finally, in my view it is extremely unlikely that any medical practitioner would certify that a patient had a medical contraindication by completing an IVMC form and providing the letters if they did not genuinely believe that the patient actually had a medical contraindication, as doing so would be fraudulent and would jeopardise the practitioner's ability to practise medicine.

[96] The Majority Decision is critical of the contents of Ms Kimber's letter dated 12 May 2020, which is extracted in part at paragraph 16 of the Majority Decision. I consider that Ms Kimber is correct in saying that the flu shot is not completely safe for everyone. So much is abundantly clear by the undeniable fact that there are medical contraindications to the flu shot, as there is with most medications. I disagree with the Majority Decision that the letter demonstrates that Ms Kimber "held a broader anti-vaccination position". It is not in dispute that Ms Kimber did have the flu shot prior to the Condition. It is also not in dispute that an appropriately qualified medical practitioner advised her that she did in fact have a medical contraindication and that she should not have the flu shot. To label her an anti-vaxxer in these circumstances is highly inappropriate.

[97] Both the Decision and the Majority Decision relied heavily on the evidence of Professor Wakefield, however his evidence was by no means definitive. He considered that the Condition would have been an uncommon reaction and 'more likely than not' unrelated to the flu shot, but he did not rule it out as an option. He also gave evidence in cross examination that it is appropriate that a patient follow the advice of their medical practitioner, which is what Ms Kimber did.

[98] In summary, it was not reasonably open on the facts for the Commissioner to find that Ms Kimber was unable to perform the inherent requirements of her role, because she was able to enter her workplace as a result of her valid exemption from the June PHO. In doing so, the Commissioner made a significant error of fact by finding that Sapphire "acted in an objectively prudent and reasonable way in not permitting the applicant to work within Imlay House absent an up-to-date flu shot, in reliance on the Media Release."[19]

[99] The Majority Decision also raises the question of Ms Kimber's willingness or otherwise to have the COVID vaccine, and this is relied on as a reason for refusing to grant permission to appeal. During the appeal hearing, the Vice President asked Ms Kimber whether she would comply with a requirement to have the COVID vaccine. Ms Kimber's response was that she would consider the terms of any PHO that might be made (given at the time no such PHO had been made) and obtain the advice of her medical practitioner. It is hard to see what criticism could reasonably be levelled at Ms Kimber for this response, but the Majority Decision states that this response "supports the inference that she holds a general anti-vaccination position".

[100] Finally, the last paragraph of the Majority Decision cannot pass without comment. To suggest that Ms Kimber had a "spurious objection to a lawful workplace vaccination requirement" in circumstances where she had been advised by her medical practitioner that she did indeed have a medical contraindication to the flu shot, advised she should not have a flu shot, and had provided a properly completed IVMC form, is a terrible mischaracterisation of her and the circumstances in this case.

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[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, 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[22].

[125] The introductory note to the Siracusa Principles commences in the following terms:

[251]

[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[25] 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.

[135] In order for an employer to meet its duties under health and safety laws, it will need to minimise the risk of exposure to COVID in the workplace, which will require employers to apply all reasonably practicable COVID control measures.

[136] As noted earlier, Safe Work Australia, in relation to whether employers need to include mandatory vaccination as a control measure to comply with WHS duties, has advised that "it is unlikely that a requirement for workers to be vaccinated will be 'reasonably practicable'".

[137] The Safe Work Australia website also includes the following advice to employers:

[255]

[138] It is very clear that a range of control measures will need to be implemented by employers to meet their health and safety obligations. In addition to the measures noted above, controls (based on a proper assessment of the risk in a particular workplace) might include appropriate air ventilation and filters, personal protective equipment including masks, staggered meal breaks, increased use of outdoor areas etc. The simple act of requiring people to stay at home if unwell and symptomatic will no doubt have a significant impact on the spread of all coronaviruses (whether a cold, flu or COVID).

[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.

[140] Testing is now widely used around the world as a risk control for the spread of COVID. There is absolutely no reason why it cannot be widely used in Australia.

[141] Testing is arguably a better control measure compared to vaccines in meeting health and safety obligations.

[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[27].

[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.

[257]

[147] I will focus on the law as it applies in NSW given that is the jurisdiction applicable to Ms Kimber.

[148] The Public Health Act 2010 (NSW) (PH Act) provides broad powers with respect to protecting the health and safety of the public.

[149] Section 7 of the PH Act, used to make PHO's in NSW, is in the following terms:

This section applies if the Minister considers on reasonable grounds that a situation has arisen that is, or is likely to be, a risk to public health.

_In those circumstances, the Minister - _

a. may take such action, and

b. may by order give such directions,

as the Minister considers necessary to deal with the risk and its possible consequences.

_Without limiting subsection (2), an order may declare any part of the State to be a public health risk area and, in that event, may contain such directions as the Minister considers necessary - _

a. to reduce or remove any risk to public health in the area, and

b. to segregate or isolate inhabitants of the area, and

c. to prevent, or conditionally permit, access to the area.

[150] PHOs have been made in NSW mandating COVID vaccinations for anyone who lives in a local government area of concern and wishes to work, and those who are airport workers, aged care workers or health care workers among others.

[151] In making blanket rules in PHOs which deny people their fundamental right to work or operate to "lock them out of society", and which denies them freedoms which are a fundamental and essential part of any democracy, concepts of reasonableness, necessity and proportionality arise. In other words, decisions taken to restrict or remove basic liberties must be proportionate and necessary to manage the risk and must be the minimum necessary to achieve the public health aims.

[152] The Australian Health Protection Principal Committee (AHPPC) is Australia's key decision making body for heath emergencies and public health emergency management. It has issued a number of public statements on minimising the potential risk of COVID[28], the purpose of which is to provide advice on the appropriate management of COVID in certain industries or occupation groups.

[153] A statement on COVID vaccination requirements for aged care workers it issued on 4 June 2021[29] commences with the following:

[259]

[154] Notwithstanding this advice, a PHO has been made mandating COVID vaccinations for aged care workers.

[155] The AHPPC statement on minimising the potential risk of COVID transmission in schools, made on 26 July 2021, does not recommend compulsory COVID vaccines for school staff either.

[156] Notwithstanding there is no advice from the AHPPC to mandate vaccinations for school staff, the NSW Government has also made a PHO requiring that all workers in NSW schools be vaccinated, which extends to volunteers. Those without a COVID vaccine will not be able perform any work at a school after 8 November 2021 (unless a medical exemption applies). On the face of it, this will prevent a parent from attending their child's school to assist with reading, or prevent a volunteer from occasionally helping out with maintenance or gardening at a school. What risk does a person pose that needs to be controlled by vaccination who mows the lawns of a school on a weekend? Of course, there is no risk that requires a vaccination.

[157] The vaccine mandate for NSW schools is strongly opposed by many, with over 65,000 people recently signing a petition organised by teachers and school staff to record their opposition for such a mandate.

[158] There have now been many studies around the world that have looked at the rate of transmission of COVID in schools. One of the largest studies on COVID transmission in schools in the United States, undertaken by Duke Clinical Research Institute, looked at more than 90,000 students and teachers in North Carolina over a 9 week period[30]. Given the rate of transmission in the community at that time, it was expected that there would be around 900 cases in the schools, however when researchers conducted contact tracing to identify school-related transmissions, they identified only 32 cases. This is one of many publicly available studies that have found similar results, that being that transmission in schools is lower than community transmission in the community in which the school is located.

[159] Teachers and school staff more generally continue to work in the EU without a COVID vaccination and can instead participate in regular testing. What, then, is the basis for mandating the vaccine for all school staff? There is no justification for doing so when other measures are available and are widely in use across the world. Such a mandate will not be the 'minimum necessary' to achieve public health aims.

[160] Further, the necessity and reasonableness of the denial or restriction on basic liberties must be weighed against a variety of other serious flow on consequences such as the significant increase in mental health issues and domestic violence, and against the serious economic damage that has been caused and will continue to be caused by the existing measures found in the PHO's.

[161] The Great Barrington Declaration (GB Declaration)[31], a statement by infectious disease epidemiologists and public health scientists, recommended an approach called Focused Protection. The GB Declaration includes the following:

[266]

[162] The authors and first signatories to the GB Declaration were Dr. Martin Kulldorff, professor of medicine at Harvard University, a biostatistician, and epidemiologist with expertise in detecting and monitoring infectious disease outbreaks and vaccine safety evaluations, Dr. Sunetra Gupta, professor at Oxford University, an epidemiologist with expertise in immunology, vaccine development, and mathematical modelling of infectious diseases, and Dr. Jay Bhattacharya, professor at Stanford University Medical School, a physician, epidemiologist, health economist, and public health policy expert focusing on infectious diseases and vulnerable populations.

[163] The qualifications held by the list of 44 co-signatories to the GB Declaration is impressive[32], and since the GB Declaration was first made, over 860,000 scientists and health professionals have signed the GB Declaration.

[164] It should be abundantly clear that there are other, far less restrictive and less intrusive ways in which we can ensure public health and appropriately address the risk of COVID without resorting to the extreme measures currently in place.

[165] In an article published by Monash University's Castan Centre for Human Rights Law, the author, Professor the Hon Kevin Bell AM QC[33], considered the COVID guidance issued by the United Nations Office of the High Commissioner for Human Rights for introducing COVID response measures consistent with human rights. He provided the following summary:

"Governments have to take difficult decisions in response to COVID-19. International law allows emergency measures in response to significant threats - but measures that restrict human rights should be proportionate to the evaluated risk, necessary and applied in a non-discriminatory way. This means having a specific focus and duration, and taking the least intrusive approach possible to protect public health.

With regard to COVID-19, emergency powers must only be used for legitimate public health goals, not used as a basis to quash dissent, silence the work of human rights defenders or journalists, deny other human rights or take any other steps that are not strictly necessary to address the health situation.

Governments should inform the affected population of what the emergency measures are, where they apply and for how long they are intended to remain in effect, and should update this information regularly and make it widely available.

As soon as feasible, it will be important for Governments to ensure a return to life as normal and not use emergency powers to indefinitely regulate day-to-day life, recognising that the response must match the needs of different phases of the crisis".

[166] In an article recently published by two Senior Lecturers from the Faculty of Law at Monash University entitled "Wars, Pandemics and Emergencies What can history tell us about executive power and surveillance in times of Crisis?"[34], the authors concluded that "in an emergency, we must be particularly vigilant to protect civil liberties and human rights against incursions that are more than the absolute minimum necessary to combat the crisis....."

[167] The Australian Financial Review, in an article published on 8 September 2021 entitled "The 17,000 flu linked deaths no one is talking about"[35], notes that modelling by the Doherty Institute says about 600 people die each year of influenza and there are about 200,000 cases annually, but in 2019, influenza and pneumonia were the underlying cause of 4124 deaths in Australia. While the vast majority of these deaths are people over the age of 80, there is an annual average of 5 infants under the age of one, 13 children aged 1-14, and 48 people aged 25-44 that died of flu or pneumonia in 2019.

[168] The article goes on to note that about 17,385 people died with flu and pneumonia in 2019, where flu and pneumonia was either the underlying cause or an associate cause of death, according to the Australian Bureau of Statistics. In Sweden, doctors in one county analysed all their COVID deaths and found that COVID was the chief underlying cause of death in only 15% of cases. In 70% of cases COVID was an associated cause of death, and in the remaining 15% of cases it was irrelevant.

[169] To put all of this further in perspective, Australia is ranked 118th in the world for COVID deaths. Broadly speaking, Australia has had around 56,000 cases of COVID with around 1,000 deaths. Of the deaths in Australia, only 1% were under the age of 50. In the same time period as the 1,000 COVID deaths, around 200,000 Australians have died for other reasons, including around 70,000 from cancer, 19,000 from heart disease, 17,000 from respiratory illnesses (not COVID), 13,000 from strokes and 4,500 from suicide.

[170] Each and every single day, around 8,000 children die around the world from starvation, which of course is completely preventable.

[171] As at 2019, there were 4,344 paedophiles in NSW on the Child Protection Register. There are no blanket rules which prevent these people from working or participating in society, nor do they have to declare that they are paedophiles before entering a business or a school.

[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.

[270]

[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.[37] 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.

At a glance

Court

Decision date

Source

Judgment (299 paragraphs)

Jennifer Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWCFB 6015 (27 September 2021)

Parties

Legislation Cited (4)