COVID-19 and vaccine requirements - connection with employment

With COVID-19 still being a key health concern in the community, the recent case of Shepherd v State of South Australia [2024] SAET 2 emphasises the need to clarify whether the requirement for any vaccination forms part of a worker’s contract of employment.

The relevant facts in Shepherd are that Mr Shepherd was required to have a third dose of COVID-19 vaccine if he wished to continue performing work as a child and youth support worker employed by the Department for Child Protection (DCP). Mr Shepherd had a third dose of the Pfizer mRNA COVID-19 vaccine (the vaccine) on 24 February 2022. The following day he experienced chest pain which grew steadily worse over the next few weeks. On 11 March 2022 Mr Shepherd thought he was having a heart attack and an ambulance was called. The cause of Mr Shepherd’s chest pain had been diagnosed as post-vaccine pericarditis (the injury), an inflammation of the membrane that surrounds the heart.

The worker lodged a claim for workplace compensation and sought income support and reasonable medical expenses.

The DCP contended that the injury did not arise from employment within the meaning of section 7 of the Return to Work Act 2014 (SA) (RTW Act). The DCP argued that the injury arose from a direction given under the Emergency Management Act 2004 (SA) (EM Act). The DCP submitted that if section 7 of the RTW Act is satisfied, section 32A of the EM Act excludes any liability which would otherwise arise from a direction given under the EM Act, and any act or omission of the State in relation to its management of the COVID-19 pandemic more generally.  

Deputy President Judge Calligeros of the South Australian Employment Tribunal formed the view that the first legal hurdle was satisfied, i.e. that the injury arose out of employment and employment was a significant contributing cause of the injury. Employment was found to be responsible for the injury in the purposive sense the High Court described in the matter of Comcare v Martin. Mr Shepherd was required to have a third dose of the vaccine to continue performing duties and be paid. The vaccine mandate would not have applied to him had he not been employed by DCP and working in a healthcare setting. The vaccination mandate and employment were both to be significant contributing causes of the injury.

Deputy President Judge Calligeros then examined the legal question as to whether the claim made was defeated by the EM Act. He reviewed the legislation and the Parliamentary debates in detail, but formed the view that:

“I am not satisfied that Parliament intended to deny compensation to employees of the State injured by heeding a vaccination mandate designed to protect the health and welfare of citizens. The language used in a provision like s 32A must be ‘unmistakable and unambiguous and is not sufficient to justify the result the State seeks in my view.”  

He also noted that:

“The State required Mr Shepherd to be vaccinated to continue working in a healthcare setting because it sought to protect and reduce the risk of infection to the public and general and those members of the public receiving healthcare services in particular. It would be ironic and unjust if Mr Shepherd was denied financial and medical support by complying with the State’s desire to preserve public health.

The result arrived at is also consonant with the objects of the EM Act. Providing Mr Shepherd with compensation for his work injury does not prevent the State from making prompt and effective decisions, or comprehensive and integrated planning, under s 2(1)(a) of the EM Act. However, dismissing Mr Shepherd’s claim would be contrary to the object in s 2(1)(b) of the EM Act to ‘promote community resilience and reduce community vulnerability in the event of an emergency’ as his physical and financial vulnerability would be disregarded.”

The above case of Shepherd emphasises the need to ensure that any “directions” to staff are issued as a matter of general concern only and therefore general advice, or whether they are to form part of the worker’s contract.