In a landmark decision from Australia, the South Australian Employment Tribunal has set a precedent that may resonate globally, especially in Canada. This decision involves the Department of Child Protection (DCP), which has been ordered to compensate a youth worker, Daniel Shepherd, who developed pericarditis following a COVID booster shot mandated by his employer. This ruling, made on January 15, 2024, underscores a critical issue: the liability of employers for vaccination injuries when the vaccination is a condition of employment. This Tribunal is South Australia’s forum for resolving workplace-related disputes and issues. It is a statutory independent tribunal.
The case revolves around Shepherd, who received the COVID booster in February 2022, adhering to a workplace vaccination directive. Despite the DCP’s acknowledgment that the booster caused Shepherd’s pericarditis, they denied liability, attributing the mandate to a lawful State Government Public Health Order (PHO) under the Emergency Management Act 2004 (EMA). However, the Tribunal found the employment itself as “a significant contributing cause” to Shepherd’s injury, rejecting the DCP’s argument and establishing a significant precedent for employer accountability in vaccination-related injuries.
This ruling is particularly noteworthy for several reasons. First, it challenges the notion that compliance with government mandates absolves employers of responsibility for vaccination injuries. Human rights lawyer Peter Fam emphasizes the significance of the Tribunal holding the employer accountable, regardless of the PHO, highlighting a shift towards prioritizing employee welfare over strict adherence to governmental directives.
Moreover, the decision sends a clear message to employers about their duty of care towards employees, as pointed out by Dr. Rado Faletic, co-founder of COVERSE, an Australian charity supporting COVID-19 vaccine-injured individuals. It suggests that employers cannot hide behind government orders to shirk responsibility for ensuring the safety and well-being of their workforce.
The implications of this case extend beyond Australia, raising important questions for Canadian employers. With the growing emphasis on workplace safety and employee rights, this decision could foreshadow changes in how vaccination mandates are approached in Canada. Employers may need to reconsider the implementation of such mandates, weighing the potential liability for injuries against the intended public health benefits.
This case also highlights the challenges faced by individuals suffering from less common or unacknowledged vaccine-related injuries. The success of Shepherd’s compensation claim, backed by clear medical evidence, contrasts with the difficulties others face with less straightforward cases. This discrepancy underscores the need for a more inclusive and supportive approach to addressing vaccine injuries beyond the limitations of current compensation schemes.
The ongoing COVID-19 vaccine injury class actions in Australia, including one initiated by Dr. Melissa McCann, reflect a broader discontent with handling vaccine-related injuries and the accountability of regulatory bodies. These legal actions, coupled with the Tribunal’s decision, could inspire similar moves in Canada, particularly if individuals feel that their injuries have not been adequately acknowledged or compensated.
In conclusion, the South Australian Employment Tribunal’s ruling is a watershed moment, signalling a shift towards greater employer liability for vaccination injuries. For Canadian employers and legal professionals, this case offers a compelling example to reflect upon, potentially influencing future policies and legal frameworks concerning vaccination mandates in the workplace. As the landscape of employer liability evolves, this decision may be a sign of things to come in Canada, prompting a reassessment of the balance between public health objectives and individual rights within the context of employment.
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Please note that this article is for informational purposes only and does not constitute legal advice.
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