Goodchild v State of Queensland (Queensland Health)
[2023] ICQ 26
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
Goodchild v State of Queensland (Queensland Health)[2023] ICQ 26
Goodchild v State of Queensland (Queensland Health)[2023] ICQ 26
INDUSTRIAL COURT OF QUEENSLAND
CITATION: | Goodchild v State of Queensland (Queensland Health) [2023] ICQ 026 |
PARTIES: | DONNA GOODCHILD (appellant) v STATE OF QUEENSLAND (QUEENSLAND HEALTH) (respondent) |
FILE NO: | C/2023/10 |
PROCEEDING: | Appeal |
DELIVERED ON: | 20 November 2023 |
HEARING DATE: | 26 September 2023 |
MEMBER: | Davis J, President |
ORDER: | Appeal dismissed |
CATCHWORDS: | PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – where the appellant was employed by the State of Queensland (Queensland Health) – where a direction was given to the appellant requiring her to be vaccinated – where the appellant applied for exemption from vaccination – where the exemption was refused – where the appellant sought internal review of that decision – where the decision was confirmed – where the appellant appealed that decision to the Queensland Industrial Relations Commission (QIRC) – where that appeal was dismissed – where the appellant appealed to the Industrial Court of Queensland – where the appellant made many complaints about the decision of the QIRC – where two grounds of appeal could be identified – where the first ground alleged that the appellant’s condition of Hepatitis B amounted to “exceptional circumstances” – where the Commissioner considered that factor – whether new evidence of the appellant suffering the condition ought to be admitted – whether the new evidence was relevant – whether the new evidence shows an error of law – where the second ground alleged a failure of the QIRC to take into account the appellant’s willingness to take alternative vaccines – whether the evidence in fact showed such a willingness – whether the evidence was capable of showing that the decision to disallow the exemption was fair and reasonable Industrial Relations Act 2016, s 557, s 565, s 567 Public Service Act 2008 |
CASES: | Goodchild v State of Queensland (Queensland Health) [2023] QIRC 053, related |
COUNSEL: | The appellant appeared on her own behalf L Grant for the respondent |
SOLICITORS: | The appellant appeared on her own behalf Crown Law for the respondent |
- [1]The appellant, Ms Donna Goodchild, appeals a decision of the Queensland Industrial Relations Commission (QIRC)[1] which confirmed a decision made within a State government department, Queensland Health (the Department) not to approve Ms Goodchild’s application for an exemption from compliance with the Health Employment Directive No 12/21 – Employee COVID-19 vaccination requirements (the Directive).
Background
- [2]Ms Goodchild was employed by the Department as a Senior Mental Health Clinician for about 22 years.
- [3]The Directive was issued on 11 September 2021 and required various employees of the Department (including Ms Goodchild) to receive a first and second dose of COVID‑19 vaccine. The Directive was mandatory, although there was a procedure where an employee could, if certain conditions were met, obtain an exemption from compliance with the Directive.
- [4]The Directive identified various categories of exemption with a catch-all for “exceptional circumstances”.
- [5]Ms Goodchild made an application for exemption due to “exceptional circumstances” (the exemption application) on 30 September 2021. In the exemption application, Ms Goodchild identified her “exceptional circumstances” as “vaccine hesitancy and conscientious objection”.
- [6]Ms Goodchild’s exemption application was denied on 1 December 2021 and she sought internal review of that decision by letter dated 21 December 2021 (the internal review letter). That application failed as on 11 February 2022 the initial decision was confirmed (the reviewed decision). Ms Goodchild then appealed the reviewed decision to the QIRC pursuant to the provisions of the Public Service Act 2008.
- [7]As already observed, the QIRC confirmed the reviewed decision on the basis that it was fair and reasonable for the Department to refuse the exemption application (the QIRC decision). Ms Goodchild appealed the QIRC decision to this Court.
Statutory Provisions
- [8]The appeal to this Court is made under s 557 of the Industrial Relations Act 2016 (IR Act). Section 557 provides:
“557 Appeal from commission
- The Minister or another person aggrieved by a decision of the commission may appeal against the decision to the court on the ground of—
- error of law; or
- excess, or want, of jurisdiction.
- Also, the Minister or another person aggrieved by a decision of the commission may appeal against the decision to the court, with the court’s leave, on a ground other than—
- error of law; or
- excess, or want, of jurisdiction.
- However, subsections (1) and (2) do not apply to the Minister or another person aggrieved by a determination of the commission under chapter 4, part 3, division 2.
- If a person may appeal a decision of the commission under both subsections (1) and (2), the person may only appeal against the decision with the court’s leave on a ground mentioned in subsection (2).
- In this section—
commission means the commission, other than the full bench constituted by the president and 2 or more other members.” (emphasis added)
- [9]Ms Goodchild’s appeal from the QIRC is limited to matters based on an error of law, or an excess, or want, of jurisdiction[2] unless she obtained leave to argue other grounds.[3] No application for leave was made, so the question is whether or not an error of law, or excess or want of jurisdiction is identified.
- [10]To support one of her grounds, Ms Goodchild sought to lead evidence that was not before the QIRC. Section 567 of the IR Act provides:
“567 Nature of appeal
- An appeal to an industrial tribunal, other than a public service appeal to the commission, is by way of re-hearing on the record.
- However, the industrial tribunal may hear evidence afresh or additional evidence if the industrial tribunal considers it appropriate to effectively dispose of the appeal.” (emphasis added)
Grounds of Appeal
- [11]Ms Goodchild made submissions which were wide-ranging and were clearly beyond the scope of the grounds permitted by s 557(1)[4] of the IR Act. However, the following grounds were identified:
- The Commissioner erred by failing to consider the evidence of Ms Goodchild’s medical condition (ground 1); and
- The Commissioner erred by failing to consider the evidence with respect to Ms Goodchild’s alleged willingness to take alternative vaccinations and failed to determine that it showed “exceptional circumstances” (ground 2).
Ground 1 – Ms Goodchild’s medical condition
- [12]Ms Goodchild submits that the Commissioner failed to consider the evidence which proved Ms Goodchild’s medical condition of Hepatitis B.
- [13]The evidence relating to Ms Goodchild’s Hepatitis B was not before the Department in Ms Goodchild’s exemption application, however, references were made to the illness by Ms Goodchild in the internal review letter. This included the following:
“There are medical reasons that are concerning regarding the covid 19 vaccine and Hepatitis which I have, and once again I am forced to reveal my personal medical condition under duress. My Hepatitis, contracted from birth has never been an issue due to my extremely healthy and active lifestyle…” (emphasis added)
And later
“Ultimately, I as an individual will bear the consequences of having a potential flare of my stable Hepatitis condition & likely medical issues caused due to the current COVID vaccine options.” (emphasis added)
- [14]Both the exemption application and internal review letter were before the QIRC.
- [15]Ms Goodchild made additional references to her Hepatitis B condition in her notice of appeal to the QIRC:
“The decision made is harsh because I have reasonable grounds to fear that the inoculations may compromise my Hepatitis B condition, supported by a medical journal article...”[5] (emphasis added)
- [16]No additional evidence on this topic was provided by Ms Goodchild to the QIRC.
- [17]In this appeal, Ms Goodchild sought to adduce fresh evidence, namely:
- a medical certificate, dated 13 April 2023 from General Practitioner Dr Boerne, from the Family Practice at the Gap; and
- a letter dated 27 April 2023 from Professor Leggett AM, Head of Hepatology at the Royal Brisbane and Women’s Hospital.
- [18]These two documents state, in effect, that Ms Goodchild suffers from chronic Hepatitis B and requires ongoing management. Importantly, these documents do not say how the vaccine would or could compromise Ms Goodchild’s Hepatitis B condition.
- [19]The fact that Ms Goodchild suffers from Hepatitis B could logically only be relevant to the QIRC’s consideration of whether the refusal of the exemption was “reasonable”. Logically, the condition will be irrelevant unless a person with Hepatitis B who takes the vaccine is somehow affected, or likely to be affected, differently (and adversely) to a person without Hepatitis B who takes the vaccine. The Commissioner understood this and, in her reasons, this appears:
“[47] As best I can tell, within the materials before me, the comment made by Ms Goodchild in respect of her medical condition did not feature in her original application for exemption. Moreover, she does not appear to have provided the Department with evidence of her condition, such that it could have been characterised as exceptional or exposing her to any higher risk of harm from the vaccine than her colleagues.
[48] Moreover, although Ms Goodchild refers to her medical condition in her reply submissions, I was unable to locate any medical evidence within any of the materials before me, setting out how the vaccine might compromise Ms Goodchild’s medical condition such that it would directly weigh against other considerations the Department had regard to when considering the exemption application.
[49] For these reasons, I am not persuaded the circumstances relied on by Ms Goodchild, in so far as they relate to the approval, efficacy or safety of the vaccine, could be characterised as exceptional. Nor could they lead to a conclusion that Ms Hebson’s internal review decision was unreasonable.”
- [20]No error can be discerned from the Commissioner’s reasons and ground 1 must fail unless the new evidence is admitted and is decisive. However, in Turay v Workers’ Compensation Regulator:[6]
“…when the Court is hearing grounds of appeal limited to errors of law or jurisdiction, the Court receives the record below and any further evidence by leave. Receipt of the evidence is for the purpose of discerning error of law or jurisdiction, not for determining whether factual findings were soundly made, and not for determining whether inferences which were drawn were open.”[7] (emphasis added)
- [21]As already observed,[8] the new evidence confirms that Ms Goodchild suffers from Hepatitis B but provides no evidence from which a conclusion could be drawn that a person such as her, suffering as she does from Hepatitis B, would react differently to the vaccines to someone who is not suffering from Hepatitis B, or that she could hold any reasonable fear of such a reaction.
- [22]Therefore, the new evidence is irrelevant and the application to adduce it should be dismissed.
- [23]Ms Goodchild has failed to make out ground of appeal 1.
Ground 2 – alleged willingness to take alternative vaccinations
- [24]As already observed,[9] Ms Goodchild submits that the Commissioner failed to consider Ms Goodchild’s alleged willingness to take alternative vaccinations and she submits the Commissioner should have found that willingness amounts to “exceptional circumstances”.
- [25]Ms Goodchild is correct that in her reasons, the Commissioner does not make reference to Ms Goodchild’s alleged willingness to take an alternative vaccination.
- [26]Ms Goodchild relies on the following materials to support her alleged willingness:
- The exemption application;
- The internal review letter; and
- A letter of registration of participation in the COVAX trial dated 8 December 2021.
- [27]All these materials were before the QIRC.
- [28]In her exemption application, Ms Goodchild states:
“I am aware that there are more ‘traditional’ vaccines being developed that is likely safer than an mRNA injection, which I would be willing to investigate its safety and efficacy as a possible option when it becomes available…” (emphasis added)
And later
“As noted in my original exemption letter, I would consider a more traditional vaccine…”[10] (emphasis added)
And later
“Again, I stress that I have never been opposed to vaccination, however I believe that since this is currently a condition of my employment, I should be able to make a proper and informed choice of what vaccine I receive. Ultimately, I as an individual will bear the consequences of having a potential flare of my stable Hepatitis condition & likely medical issues caused due to the current COVID vaccine options. Given the extreme anxiety and stress I am currently experiencing, due to this employment condition being imposed upon me quite forcefully, I cannot currently make a clear, informed decision with the current vaccine options. I would, however, like to propose that the organisation give me time to receive an alternative vaccine option, Novavax or Covax. Unlike current vaccine options, Novavax and Covax is more of a traditional type of vaccine that utilises protein-based technology to induce the necessary immune protection against SARS-COV-2. In comparison to current options mRNA), both Covax and Novavax has a higher efficacy with lower side effects. ‘Novavax Is Now the Best COVID-19 Vaccine.’” (emphasis added)
And later:
“I implore you to afford me the opportunity to respectfully consider my concerns. I am hopeful that we can come to an agreed solution, where I am able to meet the organisations current requirements, in time when Novavax or Covax is available with proven efficacy provided, so I can continue my employment into the future with QH[11]. (emphasis added)
- [29]The letter of registration of participation in the COVAX trial states the following:
“This vaccine[12] has been trialled overseas… but has not yet received marketing approved in Australia. Notably, we are currently unable to predict if and when our vaccine may be approved by the TGA to allow its sale in Australia. …”
- [30]The only rational conclusion to draw from this evidence is:
- Ms Goodchild is not expressing a willingness to take Novavax or Covax;
- She is prepared to “investigate” Novavax and Covax; and
- She would then “consider” whether to take Novavax and/or Covax.
- [31]The evidence shows no more than Ms Goodchild’s reluctance to take the vaccines that were available and, at best, a very qualified approach towards new vaccines. It has been consistently held that such reluctance does not amount to exceptional circumstances justifying a refusal to be vaccinated.[13]
- [32]The evidence of Ms Goodchild’s heavily qualified willingness to be vaccinated is all but irrelevant. However, if it was an error of law of the Commissioner not to refer to that evidence, then the appeal should still be dismissed as on the evidence before the QIRC, the decision to reject Ms Goodchild’s exemption application was fair and reasonable and ground 2 fails.
Conclusions
- [33]The only possible errors of law raised by Ms Goodchild are those that I have identified as grounds 1 and 2 of her appeal. Both grounds have failed and so the appeal should be dismissed.
Order
- [34]Appeal dismissed.
Footnotes
[1] Goodchild v State of Queensland (Queensland Health) [2023] QIRC 053.
[2] Industrial Relations Act 2016, s 557(1).
[3] Grounds for leave are limited by s 565.
[4] There being no application by Ms Goodchild under s 557(2).
[5] Goodchild v State of Queensland [2023] QIRC 053 at [47].
[6] [2023] ICQ 013.
[7] Turay v Workers Compensation Regulator [2023] ICQ 013 at [52].
[8] Paragraph [18] of these reasons.
[9] See paragraph [11] of these reasons.
[10] This appears in the internal review letter.
[11] A reference to Queensland Health.
[12] A reference to the COVAX vaccine.
[13] Mackenzie v State of Queensland (Queensland Health) [2023] QIRC 121 at [52] and [53] and the cases there mentioned.