State and territory governments are starting to issue public health orders requiring persons not to attend workplaces in certain sectors unless they are fully vaccinated for COVID-19. These orders generally provide for exemptions for persons who can show a recognised medical contraindication to the vaccines.

A recent decision of a Full Bench of the Fair Work Commission (FWC) has implications for employers that dismiss employees because they cannot comply with these orders.

In Kimber v Sapphire Coast Community Aged Care Ltd (2021), the FWC dealt with the implications of an NSW Public Health Order that required employees to be vaccinated against influenza before they could be present at a residential aged-care facility. The order exempted a person who supplied a certificate in the approved form, issued by a medical practitioner, certifying that the person has a medical contraindication to the vaccination against influenza.

A person employed as a receptionist at a facility subject to the Order sought to claim an exemption by producing a certificate in the approved form, issued by a medical practitioner, certifying that the person has a medical contraindication to the vaccination against influenza. The employee provided a medical certificate from a medical practitioner stating that she had a medical contraindication that led to severe facial swelling and rash lasting 10 months from vaccination. The employer rejected this claim and, in the face of the employee’s continuing refusal to receive the vaccination, dismissed her on grounds she could not meet the inherent requirements of her position as a receptionist.

In determining whether a dismissal is unfair, the FWC recognises that generally an employer will have a valid reason to dismiss an employee based on their capacity if the facts at the time of dismissal show the employee cannot meet the inherent requirements of their position, will not be able to in the future, and there are no reasonable adjustments that can be made to the role to accommodate any current or future incapacity.

In the Kimber case, a majority of the FWC considered the employee could not perform the inherent requirements of her job as receptionist at the aged-care facility because the fact of her not being vaccinated for influenza and not having a valid medical exemption meant that it would have been unlawful for her to attend her workplace to perform the principal function of her employment. While she could have performed some of the clerical and administrative duties that made up part of her role at home, she did not apply to do so and there was no evidence that this was feasible.

The majority of the Full Bench ruled the Public Health Order required that an employee could only be exempt where the certified medical contraindication could be objectively established. The mere completion of the approved form was not enough. The medical contraindication cited by the employee could not be accepted and the employee was legally prohibited from working at the aged-care facility. This made the continuation of her employment untenable. The employee was given ample opportunity by her employer to get vaccinated or demonstrate that she had a medical contraindication.

The Full Bench majority doubted the credibility of the main tenet of the employee’s case, namely that she objected to taking the influenza vaccine because of an alleged previous allergic reaction to it. That is because it emerged during the hearing that she has since refused to receive the COVID-19 vaccine, despite that also being a requirement to work in residential aged care. This, according to the Full Bench majority, supported the inference that she held a general anti-vaccination position.