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Steinhardt v State of Queensland (Queensland Health)[2022] QIRC 111

Steinhardt v State of Queensland (Queensland Health)[2022] QIRC 111

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Steinhardt v State of Queensland (Queensland Health) [2022] QIRC 111

PARTIES:

Steinhardt, Ashley

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

PSA/2022/177

PROCEEDING:

Public Service Appeal – appeal against a fair treatment decision

DELIVERED ON:

25 March 2022

MEMBER:

Hartigan IC

HEARD AT:

On the papers

ORDERS:

  1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed.
  1. Pursuant to s 566(1) of the Industrial Relations Act 2016 (Qld), the stay of the decision appealed against made on 8 February 2022 is revoked.

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – public service appeal – appeal against a fair treatment decision – where appellant sought exemption from compliance with Health Employment Directive No 12/21 – Employee COVID-19 vaccination requirements ('the Directive') on the basis of a genuinely held religious belief – where respondent considered application and individual circumstances against the purpose of vaccination requirements  to protect employees, patients and the community – where appellant's exemption request rejected – where decision to deny exemption application is fair and reasonable – stay of decision revoked

LEGISLATION:

Hospital and Health Boards Act 2011 (Qld), ss 51A and 51E

Industrial Relations Act 2016 (Qld), ss 562B and 562C

Public Service Act 2008 (Qld), ss 187 and 194

Health Employment Directive No 12/21 – Employee COVID-19 vaccination requirements, cls 1, 6, 7, 8 and 10

CASES:

Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245
Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018)

Reasons for Decision

Introduction

  1. [1]
    Mr Ashley Steinhardt is employed by the State of Queensland (Queensland Health) ('the Department'), as a permanent part-time Operations Services Officer in the Rural Health and Aged Care Division at the Cherbourg Hospital, within the Darling Downs Hospital and Health Service ('DDHHS') region.
  1. [2]
    Mr Steinhardt has been an employee of the Department since approximately 9 April 2018.
  1. [3]
    On 11 September 2021, the Department issued the Health Employment Directive No 12/21 – Employee COVID-19 vaccination requirements ('the Directive'), which requires certain categories of employees to have received two doses of a COVID-19 vaccine and provide their line manager with evidence of confirmation of vaccination.[1] Relevantly, Mr Steinhardt falls within one of those categories of employees.
  1. [4]
    On 30 September 2021, Mr Steinhardt applied for an exemption from the Directive on the basis of a genuinely held religious belief. Mr Steinhardt provided a letter from Mr Phil Mueller, Pastor of St Mark's Lutheran Church, Hivesville and Mr Jeffrey Steinhardt, Chairman of St Mark's Lutheran Church, Hivesville in support of his application for exemption.
  1. [5]
    On 7 December 2021, the Department determined to refuse Mr Steinhardt's application for exemption from compliance with the Directive. Mr Steinhardt sought an internal review of this decision.
  1. [6]
    By letter dated 18 January 2022, the Department advised Mr Steinhardt that it had confirmed the decision dated 7 December 2021 and that his application for exemption from the Directive on the basis of a genuinely held religious belief had been denied ('the decision'). The Department directed Mr Steinhardt to receive the required dose of a COVID-19 vaccination and provide written confirmation that he had received the required dose within seven days of receipt of the decision ('the direction'). The Department further advised Mr Steinhardt that should he fail to follow the direction, he may be liable for discplinary action pursuant to s 187(1)(d) of the Public Service Act 2008 (Qld) ('the PS Act').
  1. [7]
    By appeal notice filed in the Industrial Registry on 2 February 2022, Mr Steinhardt appealed the decision of the Department.
  1. [8]
    On 8 February 2022, this Commission ordered that the decision the subject of the appeal be stayed until determination of the appeal or further order of the Commission pursuant to s 566(1) of the Industrial Relations Act 2016 (Qld) ('the IR Act'). 
  1. [9]
    The appeal is made pursuant to s 197 of the PS Act, which provides that an appeal under Ch. 7, Pt. 1 of the PS Act is to be heard and determined under Ch. 11 of the IR Act by the Queensland Industrial Relations Commission.
  1. [10]
    Sections 562B(2) and (3) of the IR Act, which commenced operation on 14 September 2020, replicates the now repealed ss 201(1) and (2) of the PS Act.[2] Section 562B(3) of the IR Act provides that the purpose of an appeal is to decide whether the decision appealed against was fair and reasonable. Accordingly, the issue for my determination in this appeal is whether the decision is fair and reasonable.
  1. [11]
    I must decide the appeal by reviewing the decision appealed against. The word 'review' has no settled meaning and, accordingly, it must take its meaning from the context in which it appears.[3] An appeal under Ch. 7, Pt. 1 of the PS Act is not a re-hearing but, rather, involves a review of the decision arrived at and the decision-making process associated with it.[4]
  1. [12]
    For the reasons contained herein, I have found that the decision was fair and reasonable.

The decision

  1. [13]
    In the decision, the decision maker ultimately determined that the decision dated 7 December 2021, which sought to refuse Mr Steinhardt's exemption application was appropriate, and that the original decision maker undertook the appropriate steps and consideration in relation to the exemption request.
  1. [14]
    The decision maker provided the following reasons in support of the decision:

In recognition of the risks posed by the virus, as well as workplace health and safety obligations incumbent upon both the organisation and employees, Queensland Health has adopted the sensible and reasonable mitigation strategy of requiring its employees who are identified as being in high-risk groups to be vaccinated against COVID-19. This strategy is implemented by the Health Employment Directive No. 12/21 Employee COVID-19 Vaccination Requirements (HED) and the Human Resources Policy B70 Employee COVID-19 Vaccination Requirements (Policy).

...

Steinhardt v State of Queensland (Queensland Health) [2022] QIRC 111Steinhardt v State of Queensland (Queensland Health) [2022] QIRC 111Similarly, the HED and relevant HR policy were used to review your exemption application. The purpose of HED12/21 is to outline COVID-19 vaccination requirements for existing and prospective employees employed to work in the identified high-risk groups designated in HED12/21. Further, clause 6 of HED12/21, titled "Risk Management", addresses the risk that COVID-19 poses to healthcare workers, health support staff, Queensland Health patients and the broader community and explains the risk profile of the employees to whom HED12/21 applies.

HED12/21 applies to all health service employees on the basis that they are, at the very least, "Group 3" employees, namely "employees employed in roles that require attendance at a hospital or other facility where clinical care or support is provided". As such, your role as Operational Services Officer was identified as requiring COVID-19 vaccination to protect not only yourself, but the lives of employees, patients and the community we serve. I am satisfied that there is no less restrictive means other than vaccination which would sufficiently ensure the safety of yourself, other staff members and patients.

I accept and respect your religious beliefs. The assessment decision made in relation to your exemption application was undertaken ensuring the individual human rights are balanced against the overarching policy intent.

It is Queensland Health's position that the introduction of vaccination as a condition of employment is reasonable and justifiable given that the purposes of the requirement include protecting staff and patients from infection with COVID-19 and the maintenance of a proper and efficient health service in a time of global pandemic.

I reiterate, your individual circumstances, including your religious beliefs and the connection of that religious belief to the requirements under the Directions, were balanced against the purposes of the vaccination requirements. On balance, it remains that there are no less restrictive means other than vaccination which would sufficiently ensure the safety of yourself, other staff members and patients.

  1. [15]
    The decision maker also considered the effect of the decision on Mr Steinhardt's human rights and provided as follows:

The Directive and Public health directions do make vaccination compulsory for certain workers and others in specific circumstances to be vaccinated to protect the community during the pandemic. I acknowledge that my decision engages or limits a number of your human rights, including your right to equality and non-discrimination (s15 Human Rights Act 2019), the right to freedom of thought, conscience, religion and belief (s20 Human Rights Act 2019), the right to not be subjected to medical treatment without full, free and informed consent (s17(c) Human Rights Act 2019), and the right to property (s24 Human Rights Act 2019).

I am satisfied that those limits on human rights are justified by the need to ensure the readiness of the health system in responding to the COVID-19 pandemic, and to protect the lives of employees, patients and the community they serve.

Relevant legislation and Directive

  1. [16]
    Section 194 of the PS Act provides for decisions against which appeals may be made and relevantly includes:

194 Decisions against which appeals may be made

  1. (1)
    An appeal may be made against the following decisions –

(eb) a decision a public service employee believes is unfair and unreasonable (a fair treatment decision);

  1. [17]
    Section 187 of the PS Act sets out the grounds for discipline and discplinary action generally as follows:

187 Grounds for discipline

  1. (1)
    A public service employee’s chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has—
  1. (a)
    engaged in repeated unsatisfactory performance or serious under performance of the employee’s duties, including, for example, by performing duties carelessly, incompetently or inefficiently; or
  1. (b)
    been guilty of misconduct; or
  1. (c)
    been absent from duty without approved leave and without reasonable excuse; or
  1. (d)
    contravened, without reasonable excuse, a direction given to the employee as a public service employee by a responsible person; or
  1. (e)
    used, without reasonable excuse, a substance to an extent that has adversely affected the competent performance of the employee’s duties; or

(ea) contravened, without reasonable excuse, a requirement of the chief executive under section 179A(1) in relation to the employee’s appointment, secondment or employment by, in response to the requirement—

  1. (i)
    failing to disclose a serious disciplinary action; or
  1. (ii)
    giving false or misleading information; or
  1. (a)
    contravened, without reasonable excuse, a provision of this Act; or
  2. (b)
    contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action.

  1. [18]
    The Directive sets out the mandatory vaccination requirements for all current and prospective health service employees employed under the Hospital and Health Boards Act 2011 (Qld) ('HHB Act').
  1. [19]
    Section 51A of the HHB Act provides for the issuing of health employment directives and is set out in the following terms:

51A Health employment directives

  1. (1)
    The chief executive may issue health employment directives about the conditions of employment for health service employees.
  2. (2)
    Without limiting subsection (1), a health employment directive may be about the following—
  1. (a)
    remuneration for health executives and senior health service employees;
  2. (b)
    the classification levels at which health executives and senior health service employees are to be employed;
  3. (c)
    the terms of contracts for health executives and senior health service employees;
  4. (d)
    the professional development and training of health service employees in accordance with the conditions of their employment.
  1. (3)
    A health employment directive may apply to any or all of the following—
  1. (a)
    the department, a Service or all Services;
  2. (b)
    health service employees, or a stated type of health service employee.
  1. [20]
    Section 51E(1) of the HHB Act provides that, inter alia, a health employment directive that applies to an employee of the department is binding on the employee and the department.
  1. [21]
    Clause 1 of the Directive provides that compliance with the Directive is mandatory. Clause 2 provides that the purpose of the Directive is to outline COVID-19 vaccination requirements for existing and prospective employees employed in the identified high-risk groups designated in the Directive.
  1. [22]
    Clause 6 of the Directive identifies the potential risk posed to relevant employees, and the risk profile of those employees as follows:

The COVID-19 virus has been shown to disproportionately affect healthcare workers and health support staff and poses a significant risk to Queensland Health patients, and the broader community.

In recognition of the risks posed by the virus, as well as workplace health and safety obligations incumbent upon both the organisation and employees, this HED requires health service employees who are identified as being in high risk groups to be vaccinated against COVID-19.

Prospective and existing health service employees subject to these requirements have been identified based on the following risk profile:

  • They are working in an area with suspected or confirmed COVID-19 patients or an area that a COVID-19 patient may enter.
  • They are coming into direct or indirect contact with people who work in an area with COVID-19 patients or an area that a suspected or actual COVID-19 patient may enter.
  • They are unable to observe public health requirements (e.g. physical distancing, working in areas of high population density, rapid donning/doffing of personal protective equipment (PPE) in emergent situations).
  • They have the potential to expose patients, clients, other staff or the broader community to the virus (e.g. occupying shared spaces such as lifts, cafeterias, car parks, with people working with suspected or actual COVID-19 patients).
  1. [23]
    Clause 7 of the Directive sets out the requirements for vaccination. Relevantly, cl 7.1 states:

In acknowledgment of the risks posed by the COVID-19 virus to the health and safety of Queensland Health employees, patients and the broader community, clauses 8 and 9 of this HED require all existing and prospective employees who are or are to be employed to work in the cohorts as categorised in accordance with Table 1 (below), to be vaccinated as a condition of employment, subject to certain limited exemptions described in clause 10 of this HED.

  1. [24]
    Clause 7.1 of the Directive also includes a table[5] which separates Queensland Health employees into a group number based on their employee cohort. Mr Steinhardt falls within Group 2, which covers an employee cohort of all health service employees who are employed to work in a hospital or other facility where clinical care or support is provided.
  1. [25]
    Clause 8 of the Directive sets out the mandatory vaccine requirements for existing employees as follows:

8.1  Existing employees currently undertaking work or moving into a role undertaking work listed in a cohort of Table 1, must:

a. have received at least the first dose of a COVID-19 vaccine by 30 September 2021; and

b.  have received the second dose of a COVID-19 vaccine by 31 October 2021.

  • An existing employee must provide to their line manager or upload into the designated system:
  1. evidence of vaccination confirming that the employee has received at least the first dose of a COVID-19 vaccine by no later than 7 days after receiving the vaccine.
  2. evidence of vaccination confirming that the employee has received the second dose of a COVID-19 vaccine by no later than 7 days after receiving the vaccine.
  • An existing employee must maintain vaccine protection. Therefore, an existing employee is required to receive the prescribed subsequent dose/s of a COVID-19 vaccination (i.e. booster), as may be approved by the Australian Technical Advisory Group on Immunisation (ATAGI), within any recommended timeframe following the second dose. Evidence of vaccination, confirming the employee has received prescribed subsequent dose/s of the vaccine, is to be provided to their line manager or other designated person within 7 days of receiving the vaccine.
  • An existing employee who is required to have received a first or second dose of a COVID-19 dose at an earlier date under a Chief Health Officer public health direction must be vaccinated by the dates specified in the public health direction.
  • The requirements of this clause 8 do not apply to existing employees who have been granted an exemption under clause 10 of this HED.
  1. [26]
    Clause 10 of the Directive provides that where an employee is unable to be vaccinated, and exemption may be granted as follows:

10.1 Where an employee is unable to be vaccinated they are required to complete an exemption application form.

10.2 Exemptions will be considered in the following circumstances:

  • Where an existing employee has a recognised medical contraindication;
  • Where an existing employee has a genuinely held religious belief;
  • Where another exceptional circumstance exists.

10.3 If an existing employee is granted an exemption, they do not have to comply with clause 8 or 9 of this HED for the duration of that exemption

Whether the decision was fair and reasonable

  1. [27]
    As noted above, the role of the Commission in an appeal such as this, is to conduct a review of the decision to determine whether it is fair and reasonable.
  1. [28]
    Mr Steinhardt did not identify any grounds of appeal in his appeal notice. However, it can be inferred from the attachment to the appeal notice and to his written submissions that he sought to expand on his reasons as to why he sought an exemption to the Directive in the first place. Mr Steinhardt does not identify with any particularity, any part of the decision that he considers not to be fair and reasonable. Accordingly, I have taken his position to be that he considers the whole of the decision to be not fair and reasonable.
  1. [29]
    In summary, Mr Steinhardt contends as follows:
  1. (a)
    having conducted his own research on the mRNA vaccines, Mr Steinhardt formed a view that the vaccines were created using aborted foetal cell lines and that he believes that all human life is sacred;
  1. (b)
    that his research also led to him forming a view that there were safety risks associated with taking the vaccines;
  1. (c)
    that whilst God has continually asked Mr Steinhardt to 'trust in Him', Mr Steinhardt could not see the 'finger of God in this treatment considering its use of foetal cells and the danger it represented to those who received it'; and
  1. (d)
    that Mr Steinhardt believes he was stood down without pay because his God did not agree with the God of Queensland Health, which he argues is 'born out by the internal review which repeatedly played off [his] God against Queensland Health policy'.
  1. [30]
    Mr Steinhardt also attached to his submissions a copy of correspondence from his pastor and chairman of his congregation in support of his appeal.
  1. [31]
    Mr Steinhardt's submissions rely on his religious beliefs and also refer to other matters which indicated a general hesitancy to take the vaccine.
  1. [32]
    Ultimately, Mr Steinhardt's position appears to be more critical of the Directive rather than the decision itself.
  1. [33]
    The decision maker did have regard to the matters relied on by Mr Steinhardt. Relevantly, the decision maker stated that Mr Steinhardt's religious beliefs were accepted and respected. The decision maker undertook a process whereby there was a balancing of Mr Steinhardt's religious beliefs, the connection between Mr Steinhardt's religious beliefs and the requirements under the Directive, together with a consideration of the purpose of the vaccine requirements.
  1. [34]
    I consider that this decision-making process was fair and reasonable.
  1. [35]
    Further, I consider that the decision maker acknowledged that the decision may engage or limit some of Mr Steinhardt's human rights, but again balanced the purpose for such a limitation and determined they were necessary.
  1. [36]
    Ultimately, it was concluded that there are no less restrictive means other than vaccinations which would sufficiently ensure the safety of Mr Steinhardt, other staff members and patients and accordingly, the application for exemption was declined.
  1. [37]
    I consider that the decision had proper regard to Mr Steinhardt's genuinely held religious beliefs and other matters he raised with respect to his hesitancy to take the vaccine.
  1. [38]
    However, the decision maker concluded that on balance, the competing considerations of workplace and community safety took precedence over Mr Steinhardt's personal religious beliefs.
  1. [39]
    I am not satisfied that Mr Steinhardt has established that the decision was not fair and reasonable.
  1. [40]
    Accordingly, I will dismiss the appeal.

Orders

  1. [41]
    I make the following orders:
  1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed.
  1. Pursuant to s 566(1) of the Industrial Relations Act 2016 (Qld), the stay of the decision appealed against made on 8 February 2022 is revoked.

Footnotes

[1] Health Employment Directive No 12/21 – Employee COVID-19 vaccination requirements, cls 1, 7.1 and 8.1. 

[2] See the Public Service and Other Legislation Amendment Act 2020 (Qld).

[3] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261 (Mason CJ, Brennan and Toohey JJ).

[4] Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018).

[5] Table 1.

Close

Editorial Notes

  • Published Case Name:

    Steinhardt v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Steinhardt v State of Queensland (Queensland Health)

  • MNC:

    [2022] QIRC 111

  • Court:

    QIRC

  • Judge(s):

    Hartigan IC

  • Date:

    25 Mar 2022

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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