Are adverse reactions to jabs considered an 'impairment'?
The Queensland Industrial Relations Commission recently dealt with a claim from a worker who said he was unfairly dismissed after failing to comply with the employer’s required COVID-19 vaccination.
He said that he had a valid “impairment” for turning down the mandate since he experiences “severe adverse side effects” to jabs. Thus, he argued that his termination based on a health condition amounted to a violation of the state’s discrimination laws.
Background of the case
The worker, Andrew Triplow, filed a complaint with the Queensland Human Rights Commission (QHRC) against Cobham Aviation Services Australia Pty Ltd (Cobham). He alleged that he suffered discrimination based on impairment, a violation of the Anti-Discrimination Act 1991 (Qld).
Triplow then amended his complaint, substituting Cobham with Leidos SAR Services Pty Ltd, his employer during the relevant period.
The worker's employment as a drop master at Cairns Airport was suddenly terminated on December 23, 2021, due to his refusal to comply with a directive mandating COVID-19 vaccination.
The directive, issued under the COVID-19 Vaccination Requirements for Workers in a High-Risk Setting, mandated workers to receive the COVID-19 vaccine in a specified timeline.
Despite presenting a medical certificate from his general physician, Dr. Prabhakara Palla, stating a significant adverse reaction to vaccination, Triplow's employer deemed it insufficient.
The GP certified that Triplow had suffered from a "severe adverse reaction" to a vaccine in the past and receiving a COVID-19 vaccine "could cause [Triplow] significant actual bodily harm.”
The GP further "attested to the fact that doctors are reluctant to document an injury as being caused by a vaccine because the Australian Health Practitioner Regulation Agency ('AHPRA') threatens suspension, deregistration, and other penalties for doing so." Due to this reality, Triplow said that he "could not give fully informed consent to receiving a COVID-19 vaccine."
A chain of emails ensued, highlighting Triplow's concerns about coercion, constitutional rights, and the violation of privacy laws. Subsequently, Triplow's employment faced jeopardy, leading to his termination.
In its decision, the Commission said that Triplow’s submission had "no clear identification of the 'impairment' he purports to have, and which (he says) formed the basis for less favourable treatment."
"At best, it appears Triplow asserts that a historic event (which he describes as a seizure) following a flu vaccination in or about 2010 was a medical contraindication to him having a COVID-19 vaccine in 2021."
"Triplow’s complaint is that the termination of his employment is the alleged 'less favourable treatment', and it was 'on the basis of' his non-compliance with the direction (which was due to his 'impairment'). Triplow must prove each of these elements to the requisite standard."
Meaning of ‘impairment’ in discrimination
The worker claimed that he suffered from a seizure from a past vaccine, adding that this is the reason why he couldn’t take the COVID-19 shot. Thus, he argued that he was “impaired” for possible severe adverse reactions.
The Commission defined the term under the law:
“Impairment, in relation to a person, means:
(a) the total or partial loss of the person’s bodily functions, including the loss of a part of the person’s body; or
(b) the malfunction, malformation or disfigurement of a part of the person’s body; or
(c) a condition or malfunction that results in the person learning more slowly than a person without the condition or malfunction; or
(d) a condition, illness or disease that impairs a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour; or
(e) the presence in the body of organisms capable of causing illness or disease; or
(f) reliance on a guide, hearing or assistance dog, wheelchair or other remedial device;
whether or not arising from an illness, disease or injury or from a condition subsisting at birth, and includes an impairment that:
(g) presently exists; or
(h) previously existed but no longer exists.”
In this case, the Commission noted that there was a “complete absence of reliable medical evidence of an 'impairment'. There are no contemporaneous independent medical records of the alleged seizure because Triplow did not seek any medical attention at the relevant time or at all.”
COVID-19 vaccine requirement at work
The Commission then explained that “the most obvious purpose of vaccine mandates in workplaces is to manage the health and safety risk arising from the circulation of a highly contagious and potentially deadly virus in the workplace and the community.”
It said the employer “is a duty holder under the Work Health and Safety Act 2011 (Qld) and is required to take all reasonably practicable steps to eliminate, reduce, and manage the risk of injury or death to persons in their business or undertaking. It is a broad and non-delegable duty.”
“The highly contagious nature of COVID-19 and the potential for very serious health consequences for those infected heightens the impetus to manage the risk. While various other risk management methods such as masks are effective, the WHS Act requires a duty holder to manage the risk 'so far as is reasonably practicable'.”
“This plainly would include the mandating of readily available vaccines that are endorsed by health authorities and pharmaceutical regulators as being safe and effective at reducing risk of transmission,” it said.
Vaccine requirement and human rights
The Commission then had to balance certain allowed limitations of human rights when inconsistent with public security and safety.
“It is difficult to imagine a more important purpose justifying the limitation of a human right than the management of risk of transmission of a highly contagious and potentially deadly virus,” the Commission said.
“When balancing this against the nature of the alleged limitation of Triplow’s alleged human rights, it is important to be clear that the vaccine mandate does not compel him to be vaccinated i.e., he is not forced to be vaccinated. He was (and is) at all times free to decline to be vaccinated,” it added.
“While there can be no doubt that Triplow genuinely feels a deep sense of injustice about the circumstances under which his employment ended, the depth and sincerity of his personal beliefs is not enough to warrant further hearing of his complaint,” the Commission said.
Thus, the Commission ruled in favour of the employer and said that he was not discriminated against based on an “unfounded” impairment.
