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Unvaccinated worker who refused flu shot to take case to Federal Court

“Medical apartheid is the term used by the radical COVID anti-vaxxers who lurk in the darkest corners of the internet,” he said. “I’m shocked to hear the same language coming from a deputy president appointed by Michaelia Cash [in 2016].”

In her decision, Ms Dean said she considered the sacked receptionist was “correct in saying that the flu shot is not completely safe for everyone”.

“To label her an anti-vaxxer in these circumstances is highly inappropriate,” she said.

“There are side effects to the COVID vaccines that are now known. That side effects exist is not a conspiracy theory.

“Testing is arguably a better control measure compared to vaccines in meeting health and safety obligations.”

Ms Dean said all COVID-19 vaccines in Australia were only provisionally approved, and as such remain part of a clinical trial.

“The requirement for consent in this context is not new and should never be controversial. The [Nuremberg] Code (the Code), formulated in 1947 in response to Nazi doctors performing medical experiments on people during WWII, is one of the most important documents in the history of the ethics of medical research,” she said.

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The 1964 Declaration of Helsinki, made by the World Medical Association, was also a statement of ethical principles for medical research involving human subjects. This declaration acknowledged that participation in medical research must be voluntary.

On the question of whether employers could mandate COVID vaccinations on health and safety grounds, Deputy President Dean said the answer “in almost every case, is no”.

The majority decided there was a lack of evidence to support the worker’s claim that an allergy prevented her from getting the flu shot as required under a public health order when she was working as a receptionist at Sapphire Coast Community Aged Care in Bega.

The majority, Labor government-appointed vice-president Adam Hatcher, SC, and commissioner Bernie Riordan, a former trade unionist, said: “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”.

Industrial Relations Minister Michaelia Cash said unfair dismissal cases were a matter for the independent umpire to determine.

“The decision of the full bench notes that a refusal to receive a vaccination may, in some circumstances, be a valid reason for dismissal,” she said. “The government notes there are reports that an appeal to the Federal Court is being considered, therefore it would be inappropriate to comment further.

“The Morrison government’s position is clear when it comes to COVID-19 vaccines. Vaccination is voluntary, but we strongly recommend that everyone gets vaccinated as soon as they can.

“There are some workers in high risk settings, such as aged care and quarantine facilities, where state and territory public health orders will require workers to be vaccinated to protect vulnerable people and the broader community.”

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