The South Australian Employment Tribunal (Tribunal) has recently ruled that the state government of South Australia should pay a former employee, Daniel Shepherd, weekly income support as well as medical expenses after the employee suffered pericarditis (a swelling and irritation of tissue surrounding the heart) after receiving a COVID-19 booster shot.
Mr Shepherd was at the relevant time of the injection an employee of a company subcontracting for the Department for Child Protection. He received two injections in August and September 2021. Mr Shepherd then developed what has been described as “adverse symptoms” that occurred after the shots in the subsequent weeks, such as cold and flu symptoms, chest pain, and body aches.
Mr Shepherd then became a direct employee of the Department for Child Protection in October 2021, whereupon he was required under the Emergency Management Act 2004 to take a booster shot of a COVID-19 vaccine, which he did in February of 2022.
Mr Shepherd shortly thereafter suffered “unbearable” chest pains and was hospitalised and was diagnosed with post-vaccine pericarditis, leaving him inactive from work since March 2022 till September 2022, whereupon he took on a part-time administrative role for several months.
The state government rejected a claim for weekly income and reimbursement of medical expenses and further denied that the vaccine caused the medical condition, furthermore citing the Return to Work Act 2014 and stated that the injury he was claiming for did not arise from the employment itself, but rather the Emergency Management Act 2004, which, according to the state government, should exclude liability as it was the Act, which the state government was complying with, that held any responsibility, which was denied.
The Tribunal, however, found that the condition, the injury, was a direct consequence of the Emergency Management Act 2004 as Mr Shepherd would have been unable to continue working had he not taken the third shot. There was, as the Tribunal found, a strong connection between employment and the injury.
The Tribunal received evidence that a supervising employee, employed by the government had received correspondence from Mr Shepherd that he had complications with the second dose of the COVID-19 vaccine, but there was an insistence that “Department direction that we need to have the booster within 4 months of the second jab”. Mr Shepherd replied that he would get the further injection as he did not “want to miss out on work over the weekend” if it wiped him out and that it would also leave “the team in a predicament”. Further formal correspondence addressed to Mr Shepherd indicated that there were “Potential implications for your employment” if he did not comply with the department’s COVID-19 policies.
The state government has since acknowledged that the third COVID-19 vaccination caused the injury per the Tribunal’s findings. While the decision may have broader applications, currently it is only known and acknowledged that state government employees are covered by compensation schemes for such injuries caused by required-to-work doses of the COVID-19 vaccines. It is, per a spokesperson for the state government, “consistent with ordinary principles of workers compensations”.
It is left for the Tribunal and the state courts to consider whether or not this decision affects private companies’ policies surrounding vaccination. While complications such as pericarditis from the COVID-19 vaccine are reported as rare, it nevertheless remains a matter that employers should take into account when issuing policies on mandatory vaccinations.
For more information and expert advice to ensure that your business or your employer is fully complying with relevant legislation, ask to speak to a commercial lawyer at Ezra Legal on (08) 8231 6100 or email reception@ezralegal.com.au.
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Ash Ibrahim
Solicitor
Ezra Legal
