Judge slaps down industrial commissioner’s vaccination mandate spray

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An industrial commissioner who railed against vaccination mandates as “medical apartheid” in a recent unfair dismissal case has been criticised by a senior NSW Supreme Court judge, who says she descended into politicking and made claims without evidence.

In a judgment dismissing a challenge to NSW’s vaccine mandates on Friday, Justice Robert Beech-Jones lashed the comments last month by Fair Work Commission deputy president Lyndall Dean after one of the parties in the case he was overseeing relied on her reasoning.

Fair Work Commission deputy president Lyndall Dean has claimed vaccine mandates are “an abhorrent concept” and tantamount to “segregation”.Credit:Industrial Relations Society of NSW website

A majority of the Fair 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.

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.

Finally, Justice Beech-Jones took aim at Ms Dean’s calls for Australians to oppose vaccine mandates and the “ongoing censorship of any views that question the current policies regarding COVID”.

“Political pamphlets have their place but I doubt that the Fair Work Commission is one of them,” he said. “They are not authorities for legal propositions.”

In his decision, Justice Beech-Jones rejected a challenge to public health orders that required jabs for health and aged care workers, NSW Police, staff in public schools and preschools and the construction industry.

Lawyers for Jennifer Kimber, the woman who Ms Dean sided with in the Fair Work case, have said their client will appeal the commission’s rejection of her case to the Federal Court.

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