On 27 September, a Fair Work Commission (FWC) Full Bench, in a split decision, supported an aged care employer’s right to mandate influenza vaccinations (Kimber v Sapphire Coast Aged Care [2021] FWCFB 6015). This appeal decision upholds an earlier decision of Commissioner McKenna to reject an unfair dismissal claim by an employee who was dismissed for refusing to be vaccinated.

Even though the Decision relates to influenza vaccinations, the judgments of the Majority (Vice President Hatcher and Commissioner Riordan) and the Minority (Deputy President Dean) address the circumstances of the COVID-19 pandemic and associated vaccination requirements. As stated by the Majority:

…..we consider that the public interest weighs entirely against the grant of permission to appeal. We do not intend, in the circumstances of the current pandemic, to give any encouragement to a spurious objection to a lawful workplace vaccination requirement.

The Decision attracted considerable media attention, mainly due to the strongly worded comments of Deputy President Dean in her Minority decision opposing mandatory vaccinations. This is the first FWC Full Bench decision on the issue of vaccination mandates since the start of the pandemic. The Full Bench has supported an employer’s right to mandate vaccinations where reasonable in the circumstances. The Full Bench decision follows a number of earlier decisions of single members of the FWC in which a similar approach has been taken, including: Kimber v Sapphire Aged Care [2021] FWC 1818; Arnold v Goodstart Early Learning Limited [2020] FWC 6083; Maria Corazon Glover v Ozcare [2021] FWC 2989; and Barber v Goodstart Early Learning [2021] FWC 2156 (20 April 2021).

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