A majority of theFair Work Commission’s full bench in September upheld the dismissal of a receptionist at a NSW aged care facility who refused to get a flu vaccination shot. But in a minority decision,Ms Dean said the worker had been unfairly fired and claimed vaccine mandates were “an abhorrent concept” and tantamount to “segregation”.
While the Fair Work case was not about COVID-19,it was widely seen as a litmus test for whether employers would be able to sack workers who failed to comply with vaccination mandates. Despite being outvoted by her colleagues,Ms Dean’s dissenting opinion has been used by some lawyers and political activists to suggest their views have high-level endorsement.
But Justice Beech-Jones,the chief judge of the common law division of the NSW Supreme Court,found Ms Dean’s minority decision wanting in four ways.
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First,he said,parts of it did not address the law concerning consent to medical treatment.
Second,Ms Dean,who was appointed to the commission by then-employment minister Michaelia Cash in 2016,made assertions about the effectiveness and safety of COVID-19 vaccines and public health responses to the virus. These assertions “were not reflected in the evidence that I found persuasive in this case and as far as I can ascertain were not the subject of evidence in that case,” Justice Beech-Jones said.
Third,Ms Dean gave her opinions on whether public health orders on the flu mandate should have been made,which Justice Beech-Jones said was not her job. Courts,rather than the industrial commission,determined whether such orders were valid and either health officials or ministers decided whether to make them.