7 May 2021

Aged care worker sacked for refusing flu shot loses unfair dismissal case

| Albert McKnight
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New COVID-19 rules require aged care workers to be vaccinated against influenza. Photo: File.

A NSW South Coast aged care worker who was sacked because she refused to get a flu shot has had her unfair dismissal case rejected.

In a recently published decision, the Fair Work Commission ruled in favour of her former employer, Sapphire Coast Community Aged Care, due to new government rules requiring aged care workers to be vaccinated against influenza.

Jennifer Kimber had worked at the aged care group’s Imlay House in Pambula since 2008, but began direct employment with the organisation in 2013 in a receptionist and clerical role.

She had the flu jab in both 2015 and 2016, but after the latter she said she developed a condition that lasted for 10 months.

She said the condition included a severe skin inflammation, including on her face, “an intense burning sensation”, and it also affected her internal organs.

“[I] initially worked with a cotton scarf around my neck to cover the rash,” said Ms Kimber. “As the burns continued to intensify, I wore copper-infused towels as a scarf and then ice packs strapped to my neck and arms.”

After the 2016 flu shot she was “scared” to have another and refused to be vaccinated for work in 2020. Her employment was subsequently terminated.

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As part of the measures to address the COVID-19 pandemic in 2020, the NSW Government made an order that flu shots be required for people who work in aged care facilities.

Commissioner Donna McKenna said no doctor had made a diagnosis for Ms Kimber’s condition, and expert evidence put forward by the aged care group said it was improbable the condition was caused by the 2016 flu shot.

She also noted Sapphire Coast Community Aged Care was bound by law to follow the government’s new order.

Commissioner McKenna said Ms Kimber was not the only worker at Imlay House affected by the new rules, as a number of employees who did not want to have the 2020 flu shot were also dismissed.

“Other employees either retired or resigned against the background of their own decisions not to have the 2020 flu shot,” said Commissioner McKenna.

Last year, Bega’s Anki Groening, a 10-year veteran of the health sector who worked as a nurse, a midwife and in aged care, told Region Media the risks associated with getting the flu shot outweighed the benefits.

“I had a round of vaccinations to get up-to-date when I completed my nursing degree and had an immediate reaction,” she said.

“I was in bed for six weeks and had unexplained arthritis for two years afterwards.

“When I went to the doctor, she said she’d never seen such high levels of autoimmune indicators.”

Ms Groening told her boss at a Bega aged care facility that getting the flu shot every year would jeopardise her health, but when she could not provide one of only three exemptions to not get the jab she was stood down.

“The historical battle between pro-vaccination and anti-vaccination leaves little room for grey areas like my situation,” she said.

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The three exemptions are cancer treatment, a record of Guillain-Barre syndrome following previous flu vaccination, or a history of anaphylaxis connected to immunisation.

In a letter sent to Sapphire Coast Community Aged Care CEO Matt Sierp in May 2020, Ms Kimber said she wanted to balance the desire to not pass on the flu to anyone with her concerns about the vaccine’s safety.

“In any civilised country like Australia, I strongly believe that whether to have an invasive medical procedure is a personal decision and I should not be subjected to coercion,” she said.

“My job should certainly not be at risk as appears to be the case at the present time.”

Commissioner McKenna ultimately rejected Ms Kimber’s unfair dismissal claim, saying the sacking was “flu shot specific” and was not harsh, unjust or unreasonable.

“Apart from [Ms Kimber] saying the condition was attributable to the 2016 flu shot, there was a paucity of medical evidence about a connection between the 2016 flu shot and the condition,” she said.

Aged care employees are still required to have a flu shot to work at the facilities, but in December the order was amended to allow medical practitioners to provide forms proving staff have a medical reason to not be vaccinated.

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The flu vaccine is not effective enough, and the flu is not deadly enough, to warrant risking workers health and the effectiveness of the vaccine varies from 40-60 per cent, depending on age and other factors.

I feel sorry for the workers and the people who will miss their care.

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