Australian child and youth worker wins landmark tribunal case against employer's Covid-19 vaccine mandate that left him with debilitating pericarditis
A 44-year-old Australian man, Daniel Shepherd, who works as a child and youth worker for the Department for Child Protection (DCP), has been handed a victory in a tribunal ruling against the State of South Australia.
According to affidavits and oral statements in the case, Shepherd worked with Baptist Care SA, which was contracted to deliver services to the DCP. In this capacity, he worked with children and youth under the care of the DCP. In October 2021, Mr. Shepherd began working as an employee directly for the DCP.
The evidence presented in the case indicates that Mr. Shepherd received his initial Pfizer COVID-19 vaccination on August 19, 2021, while still employed by Baptist Care SA. The vaccination was encouraged but not mandatory. Mr. Shepherd experienced minor symptoms afterward, including aching joints, cold and flu symptoms, and slight chest pains, all of which resolved within a week or so.
Later, while still employed by Baptist Care SA, Shepherd received a second vaccination on September 9, 2021, which led to body aches, headaches, and cold and flu symptoms lasting for two weeks. Due to the symptoms he experienced, Mr. Shepherd took two weeks off following the second vaccination but eventually returned to work.
In late January 2022, Shepherd, now working directly for DCP, received notice about an Emergency Management Act (EM Act) directive mandating a third dose of an approved COVID-19 vaccine. Testifying, Mr. Shepherd expressed reluctance to receive another dose due to the symptoms he experienced after the initial two vaccinations. According to the evidence submitted, Shepherd "contemplated resigning from employment with DCP to avoid having a third dose of the vaccine, but did not do so because he loved his job and it was difficult to find alternative work at the time."
After engaging in various text exchanges and conversations with his management, Mr. Shepherd was ultimately presented with an ultimatum: either take the third shot or face being unable to return to work. Eventually, Shepherd complied and received the third shot, but he encountered chest pains the following day that progressively became worse. Two weeks later, he was transported by ambulance to a hospital for medical evaluation and was diagnosed by cardiologists, Dr. Waddy and Dr. Mahar, with post-vaccine pericarditis.
Mr. Shepherd's testimony indicates that he still faces challenges in performing routine everyday tasks. He mentions walking his son to school approximately 400 meters from his home and expresses fatigue when returning home. Mr. Shepherd still remains unable to work as a result of his pericarditis and was being denied worker’s compensation that included weekly payments of income support and payment of medical expenses.
During the tribunal testimony, the DCP acknowledged that Shepherd's pericarditis resulted from the booster but disclaimed responsibility for the injury. They argued that it didn't stem from Shepherd's employment but rather from a lawful State Government Public Health Order issued under the Emergency Management Act.
The Tribunal Judge that presided over the case, Deputy President Judge Calligeros, ultimately rejected the DCP’s argument, deciding that because the injury arose as a result of both the state-directed vaccination mandate and his employment, Mr. Shepherd was entitled to worker’s compensation.
As part of Judge Calligero’s January 17, 2024, decision, he says, “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.”
Calligeros concluded the ruling by awarding Mr. Shepherd weekly payments of income support and payment for his medical expenses.
You can review the ruling at the link below.
https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/sa/SAET/2024/2.html