On 27 September, a Fair Work Commission (FWC) decision supported an aged-care employer’s right to mandate influenza vaccines. The appeal decision upholds an earlier decision of Commissioner McKenna to reject an unfair dismissal claim by an employee (Jennifer Kimber) who was dismissed for refusing to be vaccinated.

One member of the Full Bench, Deputy President Dean, spoke out against the Majority Decision, noting that Kimber was dismissed because of her inability to be vaccinated against influenza in 2020. In a decision dated 29 April 2021, Commissioner McKenna determined that Kimber’s dismissal was not unfair and dismissed her application for an unfair dismissal remedy against Sapphire Coast Community Aged Care (the Decision).

Deputy President Dean opposed the Majority Decision, stating, “Never have I more strenuously disagreed with an outcome in an unfair dismissal application. The Decision manifest a serious injustice to Ms Kimber that required remedy. More egregious, however, is that the Majority Decision has denied Ms Kimber the protections afforded by the Fair Work Act in part because of ‘an inference that she holds a general anti-vaccination position’,” said Deputy President Dean.

Deputy President Dean went on to state that had she been able to do so, she would have granted permission to appeal, upheld the appeal and quashed the Decision. “In re-determining the application, I would have found that Ms Kimber was unfairly dismissed and would have reinstated her to her former position,” said Deputy President Dean.

The Decision is available here, via the FWC website.

Image credit: ©stock.adobe.com/au/Fernando