You, vaccination and the law

The case of Jennifer Kimber, in which Kimber took her employer to court after being fired for refusing to get a flu shot, may have raised hopes that workers will refuse a COVID vaccination. Mrs Kimber lost her unfair dismissal case before the Fair Work Commission, but she has signaled that she intends to seek judicial review of this decision, no doubt encouraged by Vice President Lyndall Dean’s strong divergent verdict.

But let’s take a practical look at the matter. Let’s say your employer has told you that you need to be vaccinated to participate in the work in their food processing plant, nursing home, or on their plane.

Perhaps this will be one of the interesting test cases that goes all the way to the High Court.

Perhaps this will be one of the interesting test cases that goes all the way to the High Court.Credit:

They say, “We need you to do this so we can guarantee that our customers and all your colleagues are safe.” Maybe you, like Mrs. Kimber, prefer naturopathic treatments. Or maybe your religious beliefs keep you from being vaccinated. Or you claim a “human right” to refuse medical treatment.

Employers cannot force us to be vaccinated, but they have the property rights to run their own businesses. They must also comply with occupational health and safety laws. So can you insist on showing up for work to earn your salary? Mrs. Kimber could not.

Mrs Kimber’s employer told her on 24 March 2020 that she needed a flu vaccination to keep working. She then took paid nursing leave until June 29th. She was then dismissed and she filed her unreasonable dismissal claim on July 20, 2020. She lost the case on April 29, 2021 nine months later. It took another five months before a full bench confirmed the decision. How many workers can survive without work for more than a year while fighting a case?

To succeed, Mrs Kimber must state that the FWC failed in their own jurisdiction.

Vice President Dean said she would have reinstated Mrs Kimber, but in reality, very few unfair dismissal claims end in reinstatement. According to the FWC Annual report Access to the courts 2018-19, only 13 of the 229 cases arbitrated that year resulted in reinstatement.

What about Mrs Kimber’s application to the Federal Court? To succeed, she must state that FWC confused their own jurisdiction. It may take another two years before the case is heard and decided. And if she wins, the federal court sends the case back to the FWC to do the job again. If she loses but has the resources to continue her fight, this might be one of the hugely interesting test cases going all the way to the High Court of Australia, as the case of Michaela Banerji who fought and lost, a claims based on the right to freedom of expression. In that case, it will take years and she will definitely lose because the judges of the High Court have confirmed (in Workpac mod Rossato) that employers enjoy “freedom of contract”.

The workers who think they can fight vaccination by taking action are mistaken. Unless you are in the midst of company negotiations for an agreement that specifically includes vaccination requirements, you can not take protected industrial action on this issue. The employer will be able to get an immediate stop order from the FWC to order you back to work if they really want you at work. They save on their paycheck while you protest.

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