The receptionist will now take her case to the Federal Court to challenge the decision.
In July 2020, Jennifer Kimber, a receptionist at Imlay House aged care facility in the NSW town of Bega, was fired after she refused to comply with a NSW public health order, which banned anyone from entering an aged care facility without being vaccinated for the flu.
The order also required that employers take all reasonable steps to ensure their employees comply.
In April 2021, Commissioner Donna McKenna ruled it was fair the receptionist was fired because she was challenging a public health order, and the nursing home was left with no choice.
Fired for refusing flu vaccine
In April 2020, Kimber wrote to her employer informing them she would take the vaccine, despite the public health orders.
Kimber said she suffered a “severe allergic reaction” to the vaccine in 2016, which resulted in a “major and debilitating skin inflammation”, affecting not only her skin but her internal organs. The reaction persisted for 10 months, Kimber said.
However, Kimber gave her employer no further detail about the reaction and she didn’t take any time off work as a result of it.
Kimber first gave her employer a letter from a Chinese herbalist treating her condition, but the FWC found this advice was “plainly not based on medical science”.
Later, a GP said Kimber’s medical history supports “a medical contraindication to having the influenza vaccine”.
However, the FWC’s ruling stated the basis for the doctor’s assertion “was what she had told him”.
Kimber also wrote to her employer informing them she had conducted her own “research” on the internet about the vaccine’s safety.
“I google searched all sorts of stuff,” she wrote.
“My research has led me to many studies, which also support my conclusion that a flu vaccine is not completely safe or effective.”
Kimber was fired on 6 July 2020 for not complying with the public order to have the flu vaccine. Two weeks later she filed an unfair dismissal claim.
The majority on the bench supported McKenna’s ruling that it was fair that Sapphire fired Kimber.
However, Deputy President Lundall Dean offered a dissenting view, saying Kimber had been dealt a “serious injustice” because of her “anti-vaccination sentiments”.
In a lengthy and passionate discussion, Dean outlined the reasons she believed Kimber should be reinstated to her job.
“All Australians, including those who hold or are suspected of holding ‘anti-vaccination sentiments’, are entitled to the protection of our laws, including the protections afforded by the Fair Work Act,” she said.
Two questions….who and what organisation is actually funding this continued expensive legal action? Who is behind the scene encouraging this stupidity. It’s everyone’s choice to vaccinate or not and there are areas of employment that might be lenient but it’s most certainly not aged care!
And…Does this person not understand what MANDATED means?
I’m not allowed to visit my mother in shed care facility with flu shot.. why should someone work there and potentially infect residents and staff.
Sacking is fair and right!
I am on the same sentiment, I don’t believe that they should force anyone into having the vaccine.
If the job has new safety rules for employment, including a COVID 19 vaccination, then the employee needs enough time to obtain that new requirement. Once that time has expired if the employee does not meet the current safety rules for employment then the safety of all others on the site must get priority and that employee no longer has a job.
As much as that is difficult for the employee, and no doubt the managers who have to enforce it, I cannot see it working any other way.
I know someone who will not wear a seatbelt. He says its inconvenient and unsafe. He has to be a self employed tradie because no employer will allow him to drive their vehicles without wearing a seat belt.
The seatbelt and vaccine example seem the same to me.