Mandatory covid vaccinations for workplaces

The employment law issues associated with mandatory covid vaccinations and public health orders are beginning to crystalize in the Fair Work Commission.

On 29 September 2021 in Kimber v Sapphire Coast Community Aged Care [2021] FWCFB 6015, a Full Bench of the Fair Work Commission in a startlingly divergent decision of three members of the Fair Work Commission in an unfair dismissal case about whether the dismissal of an employee who refused to submit to an influenza vaccine in an aged care workplace was unfair, two members of the appeal bench said no (by refusing permission to appeal against the rejection of the claim) and the third (a senior member) said no.


On 22 October that decision appears to have been challenged in an application for judicial review by the Federal Court of Australia.

On 27 october a Vice President of the Commission was asked by an applicant for an unfair dismissal remedy who has apparently been dismissed by an operator of an aged care facility for not having met the requirements of a New South Wales public health order to be vaccinated against covid 19 to stay the hearing of the case pending the Federal Court review of the other influenza case decision, and to recuse himself from hearing the stay application because of his involvement in the first appeal.

The Vice President would have none of it saying

“Mr Buckley, who, with permission, has appeared for Ms Lee at this morning’s directions hearing, has firstly applied for the hearing of Ms Lee’s application to be stayed pending the determination of proceedings before the Federal Court of Australia in a judicial review application matter which appears to have been filed very recently, perhaps today. 1  That application relates, it appears, to a decision of a Full Bench, in which I formed part of the majority,2 to refuse permission to appeal to a Ms Kimber, who had been dismissed by a different aged care facility.

[6] In that case, the facility had been last year subject to a public health order relating to the influenza vaccination and the key issue was that Ms Kimber claimed that she had a medical contraindicator that exempted her from the application of the public health order, a proposition which the employer resisted. At first instance in that matter, a member of the Commission found as to the unfair dismissal application made by Ms Kimber that her dismissal was not unfair and dismissed the application.  Permission to appeal, as earlier stated, was refused on various grounds by majority.

[7] The Federal Court application seeks judicial review on a number of grounds. The statement of contentions filed with the application contends that the decision of the Full Bench involved jurisdictional error on the basis that the decision was unreasonable in a number of regards, that the discretion in refusing to grant permission to appeal miscarried, and that the Full Bench acted upon a wrong principle, allowed extraneous, irrelevant matters to guide it and failed to take into account the material considerations.

[8] I am not satisfied that the application for judicial review, even if ultimately upheld by the Federal Court, would be determinative of any matter that is currently before me in Ms Lee’s application against Estia.  In particular, it involves a different public health order and involves a different form of vaccination.  And, in this case, the applicant does not contend, at least at this stage, that there was no valid reason for her dismissal, and has not claimed that she has a valid medical contraindication to the taking of the vaccine.

[9] In those circumstances, it does not seem to me to serve any purpose in either party’s interests to await the decision of the Federal Court, because that decision, on the material currently available, would not assist in the determination of Ms Lee’s application for an unfair dismissal remedy.  I accordingly refuse the application for a stay.

[10] Mr Buckley has also, albeit on the run, made an application that I should recuse myself from the hearing of Ms Lee’s application on the basis of what he has described as a “conflict of interest”.  What the “interest” is was not properly articulated by Mr Buckley in accordance with established principle.  It appears to rise no higher than the fact that I formed part of the majority in the Kimber case, and that there was a statement in the Kimber case to the effect that the appellant held a general anti-vaccination position which indicated some view that might be applied to Ms Lee’s case.

[11] That proposition, at its highest, does not apply to Ms Lee’s case nor does it identify any conflict of interest. It sounds more like an apprehended bias application. But even if the application was brought on that basis, it would not satisfy the grounds for recusal for apprehended bias. The test for apprehended bias is that a reasonable person might apprehend that I might not bring an impartial mind to the determination of the proceedings. None of the matters raised by Mr Buckley goes anywhere near satisfying that test. Accordingly, I decline to recuse myself.”

Lee v Estia Investments Pty Ltd (2021) FWC 6209 delivered 26 October 2021 per Hatcher VP