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  4. Sunny v State of Queensland (Queensland Health) - [2022] QIRC 119

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Sunny v State of Queensland (Queensland Health)[2022] QIRC 119

Sunny v State of Queensland (Queensland Health)[2022] QIRC 119

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Sunny v State of Queensland (Queensland Health) [2022] QIRC 119

PARTIES:

Sunny, Fredy Kalluvettamkuzhiyil

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO.:

PSA/2022/233

PROCEEDING:

Public Service Appeal

DELIVERED ON:

1 April 2022

HEARD AT:

On the papers

MEMBER:

McLennan IC

ORDER:

Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appealed against is confirmed.

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL – where appellant applied for an exemption to the Health Employment Directive No. 12/21 – where respondent refused appellant's exemption application – where appellant applied for internal review of refusal to grant exemption – where upon review the respondent upheld the original refusal – consideration of balance between genuinely held religious beliefs and purpose of the directive – whether human rights justifiably limited – where decision was fair and reasonable – decision appealed against confirmed

LEGISLATION:

Human Rights Act 2019 (Qld) s 13, s 48, s 58

Industrial Relations Act 2016 (Qld) s 451, s 562B, s 562C, s 564

Public Service Act 2008 (Qld) s 137, s 194

Workplace Health and Safety Act 2011 (Qld) s 28, s 47

Health Employment Directive No. 12/21 cl 6, cl 7, cl 8, cl 10

CASES:

Bloxham v State of Queensland (Queensland Police Service) [2022] QIRC 037

Edwards v State of Queensland (Queensland Health) [2022] QIRC 091

Gilmour v Waddell & Ors [2019] QSC 170

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Radev v State of Queensland (Queensland Police Service) [2021] QIRC 414

Slykerman v State of Queensland (Queensland Health) [2022] QIRC 039

Reasons for Decision

Introduction

  1. [1]
    Mr Fredy Sunny (the Appellant) is employed by Queensland Health, State of Queensland (the Respondent) as a Registered Nurse within West Moreton Health (WMH).[1]
  1. [2]
    Mr Sunny is employed in the health centre at Wolston Correctional Centre.[2]
  1. [3]
    The Health Employment Directive No. 12/21 (Directive 12/21) mandates, inter alia, that particular groups of health service employees must receive the COVID-19 vaccine.[3]
  1. [4]
    Directive 12/21 became effective from 11 September 2021.[4]
  1. [5]
    Relevantly, cl 8 of Directive 12/21 provides the following:

 8.1 Existing employees currently undertaking work or moving not a role undertaking work listed in a cohort of Table 1, must:

  1. have received at least the first dose of a COVID-19 vaccine by 30 September 2021; and
  2. 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.

…

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. [6]
    The Respondent categorised Mr Sunny's role as falling within "Group 2" under cl 7.1 of Directive 12/21 which covers employees who work in a hospital or other facility where clinical care or support is required.[5]
  1. [7]
    On 28 September 2021, Mr Sunny applied for an exemption on the basis of "a genuinely held religious belief" under cl 10.2 of Directive 12/21.[6]
  1. [8]
    On 8 December 2021, the Respondent advised Mr Sunny of its decision to refuse his exemption application. This original refusal was conveyed in correspondence from Ms Claire Barratt, General Counsel and Corporate Secretary, WMH.[7]
  1. [9]
    On 21 December 2021, Mr Sunny requested an internal review of the decision to refuse his exemption application.[8]
  1. [10]
    On 14 January 2022, the Respondent advised Mr Sunny that an internal review of the original exemption refusal had been conducted and the Respondent had determined to confirm the earlier decision to refuse Mr Sunny's exemption application (the Exemption Decision).[9] The Exemption Decision was conveyed in correspondence dated 13 January 2022 from Ms Wendy Richards, A/Senior Director, Recruitment and Capability Human Resources Branch, WMH.
  1. [11]
    On 4 February 2022, Mr Sunny filed an Appeal Notice with the Industrial Registry.

Jurisdiction

The decision subject of this appeal

  1. [12]
    On p 3 of the Appeal Notice, Mr Sunny identifies the type of decision being appealed:

I am appealing a fair treatment decision and I have used by employer's individual employee grievances process before lodging this appeal.

  1. [13]
    Further, under Part C of the Appeal Notice, Mr Sunny states he is "seeking external review for my application for religious exemption for COVID 19 vaccine mandate. I'm not satisfied with the internal review decision."[10]
  1. [14]
    I accept the Exemption Decision is appealable as a fair treatment decision pursuant to s 194(1)(eb) of the Public Service Act 2008 (Qld) (the PS Act). 
  1. [15]
    At this juncture, I note Mr Sunny annexed other correspondence to his Appeal Notice including a letter dated 2 February 2022 which conveys the Respondent's decision to substantiate an allegation against Mr Sunny and to suspend him without remuneration.[11] Notwithstanding, Mr Sunny made clear that the decision he is appealing is the internal review decision to confirm refusal of his exemption application. Therefore, that is the only decision subject of this appeal.

Timeframe for appeal

  1. [16]
    Section 564(3) of the Industrial Relations Act 2016 (Qld) (the IR Act) requires that an appeal be lodged within 21 days after the day the decision appealed against is given. That is the relevant inquiry with respect to timeframes. I note that despite the question posed in the Form 89 – Appeal Notice regarding when the decision was received.
  1. [17]
    The Decision was given on 14 January 2022 and the Appeal Notice was filed on 4 February 2022. Therefore, I am satisfied the Appeal Notice was filed by Mr Sunny within the required timeframe.

What decisions can the Commission make?

  1. [18]
    Section 562C of the IR Act prescribes that the Commission may determine to either:
  • confirm the decision appealed against; or
  • set the decision aside and return the matter to the decision-maker with a copy of the decision on appeal and any directions considered appropriate; or
  • set the decision aside and substitute another decision.

Consideration

Appeal principles

  1. [19]
    Section 562B(2)-(3) of the IR Act provides that the appeal is decided by reviewing the decision appealed against "to decide whether the decision appealed against was fair and reasonable".
  1. [20]
    The appeal is not conducted by way of re–hearing, but rather involves a review of the decision arrived at by the Respondent and the associated decision–making process.
  1. [21]
    Findings made by the Respondent, which are reasonably open to it, should not be disturbed on appeal.  Even so, in reviewing the decision appealed against, the Commission may allow other evidence to be taken into account.
  1. [22]
    The relevant principles in considering whether a decision is 'unreasonable' were enunciated by Ryan J in Gilmour v Waddell & Ors (emphasis added, citations removed):[12]

The focus of a review of the reasonableness, or unreasonableness, of a decision is on whether the decision is so unreasonable that it lacks intelligent justification in all of the relevant circumstances.

The legal standard of unreasonableness is to be considered by reference to the subject matter, scope and purpose of the statute conferring the power.

A court considering an argument that a decision is unreasonable is not undertaking a merits review. If a decision may be reasonably justified, then it is not an unreasonable decision, even if a reviewing court might disagree with it.

The pluarity in Li said:

… when something is to be done within the discretion of an authority, it is to be done according to the rules of reason and justice. That is what is meant by ‘according to law’. It is to be legal and regular, not vague and fanciful …

… there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court’s view as to how a discretion should be applied for that of a decision-maker …

… it is necessary to look to the scope and purpose of the statute conferring the discretionary power and its real object … The legal standard of reasonableness must be the standard indicated by the true construction of the statute. It is necessary to construe the statute because the question to which the standard of reasonableness is addressed is whether the statutory power has been abused.

… Unreasonableness is a conclusion which may be applied to a decision which lacks an evidence and intelligible justification.

Submissions

  1. [23]
    On 14 February 2022, I issued a Directions Order requiring the parties to file written submissions. The Respondent complied with that Directions Order.
  1. [24]
    On 15 February 2022, Mr Sunny emailed the Industrial Registry and asked:

I have received Directions Order but I am confused and didn’t understand what I supposed to do. I have submitted all the relevant documents including letters from my pastor regarding the issues also submitted the reply from Qheath (sic). What I suppose to do now? I have contacted my friends who already applied the same, did not received this email with orders. Can you please guide me what I suppose to do?

  1. [25]
    On 16 February 2022, the Industrial Registry replied:

Firstly, we refer you to the Public Service Appeal Guide which can be accessed here: Public service appeals | Queensland Industrial Relations (qirc.qld.gov.au). This Guide will assist you in understanding the process.

In this Appeal, Commissioner McLennan has determined to decide the matter on the papers which means you are required to file written submissions in support of your Appeal for her consideration. At page 4 of the Appeal Notice, you have indicated some reasons for your appeal, however the Directions Order invites you to provide more submissions with respect to why you submit the Decision being appealed against is not fair or reasonable.

  1. [26]
    Despite the Industrial Registry's response, Mr Sunny did not file any submissions. Then on 9 March 2022, Mr Sunny sent an email to the Industrial Registry asking, "I just want to know about my application. Do I need to submit anymore further documents? I have already submitted all documents as a hard copy."
  1. [27]
    On 15 March 2022, the Industrial Registry replied:

As explained in the attached email issued to you by the Industrial Registry on 16 February 2022, page 4 of your Appeal Notice indicates some reasons in support of your Appeal however the attached Directions Order invited you to provide further explanation as to why the Decision being appealed against is not fair or reasonable. Commissioner McLennan notes that the Public Service Appeal Guide was also provided to you at that time to assist.

Despite that explanation, you chose not to make any further written submissions in support of your appeal by 4:00pm on 21 February 2022 (that was the date they were required to be filed in accordance with Direction Order 1).

The Respondent has elected to file written submissions in the matter and again you elected not to file further submissions in reply (the due date was 7 March 2022).

The final date by which either party could have applied to make further submissions was 9 March 2022. Commissioner McLennan will therefore proceed to consider the material already filed in due course.

  1. [28]
    Pursuant to s 451(1) of the IR Act, no hearing was conducted in deciding this appeal.  The matter was decided on the papers.
  1. [29]
    I have carefully considered all submissions and annexed materials but have determined not to approach the writing of this decision by summarising the entirety of those submissions and attachments. My focus is on determining whether the Exemption Decision appealed against is fair and reasonable so I will instead refer only to the parties' key positions in my consideration of each question to be decided.

The Exemption Decision

Relevant provisions

  1. [30]
    Clause 10 of Directive 12/21 allows employees to apply for an exemption, providing:

10.1 Where an existing 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.

The exemption application

  1. [31]
    On 30 September 2021, Mr Sunny applied for an exemption based on "a genuinely held religious belief."[13]
  1. [32]
    In support of his application, Mr Sunny annexed an undated letter from Mr John Shumba, the Pastor of Christ Embassy Church Brisbane. In that correspondence, Mr Shumba conveys:
  • his support of Mr Sunny's request for an exemption on the grounds of religious beliefs;
  • Mr Sunny is a baptised Christian;
  • he has known Mr Sunny "for a few years now";
  • Mr Sunny is an active and genuine Christian believer, who attends church on a regular and frequent basis; and
  • he considers coercion to receive vaccines against one's conscience to be an attack on Christian beliefs, and upon their freedom to worship and practice their faith without let or hindrance.
  1. [33]
    Mr Shumba further refers to an:

additional statement with supporting documentation detailing the religious, moral and spiritual bases upon which Christian's object to receiving the COVID-19 vaccines currently being distributed within Australia, as well as similar medical interventions that are produced using similar morally problematic technology.[14]

  1. [34]
    I have reviewed the contents of that statement.

The original refusal

  1. [35]
    On 8 December 2021, Ms Barratt advised Mr Sunny of the decision to deny his request for an exemption and gave the following reasons:
  • Mr Sunny's individual circumstances, including his religious belief and the connection of that religious belief to the vaccination requirements, were balanced against the purposes of the requirements;
  • the intention of Directive 12/21 is to ensure the readiness of the health system in responding to the COVID-19 pandemic, to protect the lives of employees, patients and the community they serve;
  • Directive 12/21 contemplates the high degree of risk to public health associated with work performed in healthcare settings;
  • there is no less restrictive means other than vaccination which would sufficiently ensure the safety of Mr Sunny, other staff members and patients;
  • it is inevitable that every Queenslander will eventually be exposed to COVID-19;
  • safe and effective vaccines for COVID-19 that prevent severe illness and reduce transmission are now widely available and endorsed;
  • limiting transmission within a workplace through the protection of COVID-19 vaccinations will reduce the likelihood of workplace outbreaks and staff shortages;
  • any limit on human rights is 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; and
  • the purpose of protecting Mr Sunny's colleagues and patients from COVID-19 through vaccination promotes their human rights to life and health, as well as Mr Sunny's own.[15]

Mr Sunny's response

  1. [36]
    On 20 December 2021, Mr Sunny responded to the original refusal of his exemption request and outlined further submissions in support of exemption:
  • Mr Sunny has met the requirements outlined to be eligible for an exemption on religious grounds;
  • receiving the vaccination will mean apostasy to Mr Sunny's religion;
  • losing his religion will impact Mr Sunny detrimentally and will cause him to question his reason to continue living;
  • Mr Sunny is not satisfied that limits on his human rights are justified as religious discrimination is unlawful;
  • WMH has acted extremely unethically and negligent in relation to exploring any alternative less restrictive measures of protecting staff and patients from COVID-19;
  • the Respondent has not provided a proper risk assessment under s 28(a) of the Workplace Health and Safety Act 2011 (Qld); 
  • the Respondent has not carried out its duty to consult workers under s 47 of the Workplace Health and Safety Act 2011 (Qld); and
  • the Respondent has not discussed alternative working arrangements nor risk strategies with Mr Sunny.

The Exemption Decision

  1. [37]
    In correspondence dated 13 January 2022, Ms Wendy Richards, A/Senior Director, Recruitment and Capability, Human Resources Branch acknowledged receipt of Mr Sunny's request for review of the original exemption refusal given by Ms Barrett.[16]
  1. [38]
    Upon review of the original exemption refusal, Ms Richards reached the conclusion that Ms Barrett's decision was fair and reasonable in the circumstances and confirmed that decision.[17]

Further correspondence from the Respondent

  1. [39]
    On 14 January 2022, Mr Matthew Tallis, Chief Operating Officer at WMH issued Mr Sunny with correspondence advising the following:
  • it is alleged that Mr Sunny has failed to follow a lawful and reasonable direction to comply with the vaccination requirements set out in Directive 12/21;
  • should a decision be made that there are grounds for Mr Sunny to be disciplined, then a range of disciplinary action may be taken, including but not limited to, termination of Mr Sunny's employment;
  • Mr Sunny is suspended from duty on normal remuneration pursuant to s 137(1)(b) of the PS Act;
  • the Respondent is giving consideration to suspending Mr Sunny without remuneration; and
  • Mr Sunny is afforded 14 days of receipt of the letter to express his views on the allegation and suspension without pay.[18]

Mr Sunny's further response

  1. [40]
    On 31 January 2022, Mr Sunny issued further correspondence to the Respondent. As this correspondence was provided after the Exemption Decision, it clearly was not considered as part of the review process - however I have taken into consideration Mr Sunny's correspondence as submissions in support of his appeal. The key points can be summarised as follows:
  • Mr Sunny's religious grounds are seemingly overridden despite meeting the requirements of submitting a religious exemption application;
  • the Respondent has not provided an explanation as to why the exemption was not granted when others have been granted the exemption;
  • although the allegation is serious, so to is the implication on Mr Sunny's religious beliefs;
  • as a bible-believing Christian, taking the currently available COVID-19 vaccine is against Mr Sunny's religion;
  • losing his religion will violate Mr Sunny's right to freely exercise his faith;
  • Mr Sunny holds concerns of the use of foetal cell lines used either in the testing or development and production for COVID-19 vaccines and derived from elective abortions;
  • as a believer, Mr Sunny is firmly against abortion; and
  • Mr Sunny references several bible scriptures in support of his beliefs.[19]

Consideration

  1. [41]
    For the reasons that follow, I accept the Respondent fairly and reasonably balanced Mr Sunny's genuinely held religious beliefs and human rights against the purpose and requirements of Directive 12/21. On that basis, I find the Exemption Decision is fair and reasonable.

Religious belief

  1. [42]
    An exemption application based on a religious belief requires a supporting letter from a religious leader or official that specifies the applicant's "deeply held religious belief such that they are unable to receive any COVID-19 vaccine" and "their affiliation or connection to the religious group".[20]
  1. [43]
    I accept the Respondent's submission that it is not obliged to accept that genuinely held religious beliefs outweigh the importance of the purpose of Directive 12/21[21] particularly when that purpose takes into consideration workplace and community safety.
  1. [44]
    As Industrial Commissioner Power concluded in Edwards v State of Queensland (Queensland Health), "It is not the case that the provision of a letter confirming affiliation to a religious group ensures that an employee will receive an exemption."[22] That was communicated to Mr Sunny in the "Employee COVID-19 vaccine exemption application form" which states (emphasis added) "It is important to be aware that exemption requests will be considered in accordance with Queensland Health's obligations and that approval will be only provided in exceptional circumstances".
  1. [45]
    Further, cl 10.2 of Directive 12/21 provides that "exemptions will be considered… where an existing employee has a genuinely held religious belief". The term "considered" suggests the Respondent will not automatically grant an exemption upon provision of proof of a genuinely held religious belief. Therefore, it is not unreasonable for the Respondent to reject exemption applications despite the applicant meeting the procedural requirements because it is not simply a box ticking exercise - there are other necessary considerations.
  1. [46]
    The Respondent does not dispute that the undated letter from a Pastor of Christ Embassy Brisbane Church advises that Mr Sunny is an active member of the Church and expresses support for Mr Sunny's exemption request. Further, the Respondent does not dispute that the undated document annexed to that letter outlines the Church's position with respect to COVID-19 vaccinations - advising the Church opposes compulsory vaccination mandates, is neither pro-vaccine nor anti-vaccine and expresses concern about the safety and efficacy of the vaccinations.[23]
  1. [47]
    In the Exemption Decision, Ms Richards acknowledged:

I note your supporting document signed by John Shumba, Christ Embassy Brisbane that states you are "an active and genuine believer who attends my church on a regular and frequent basis" and that "to receive these vaccines would be an attack on our Christian beliefs and, upon our freedom to worship and practise our faith without let or hindrance".[24]

  1. [48]
    In Slykerman v State of Queensland (Queensland Health),[25] Industrial Commissioner Dwyer considered a case with somewhat analogous circumstances and relevantly determined the following (emphasis added):

[29]  Ms Slykerman's use of the term 'merely' here is illuminating. The term is used subjectively, and it demonstrates how Ms Slykerman fails to accept the importance of competing considerations of workplace and community safety and how they could take precedence over her religious beliefs.

[30] Ms Slykerman's true complaint is not that her religious beliefs have not been recognised. It is that they have not been given the degree of recognition that she thinks they deserve. Ms Slykerman's views in this regard are undoubtedly informed by her views on the efficacy of the vaccines.

[31] As an aside, it ought to be noted for Ms Slykerman's benefit that the decision to reject her application for exemption is not in any way a criticism or diminishment of her religious beliefs. Ms Slykerman's beliefs are in no way controversial and are shared by many people around the world.

[32] It is not the case that Ms Slykerman's religious beliefs have been cast aside without consideration or recognition. It is simply that, in these unprecedented times, difficult choices must be taken that require weighing personal beliefs and freedoms against the greater good of the community.

[33] In the circumstances I do not accept that there was no recognition of Ms Slykerman's religious beliefs as she contends.

  1. [49]
    The location of Mr Sunny's employment is particularly significant in this matter. Correctional facilities contain vulnerable cohorts and the impact of exposing those facilities to COVID-19 is particularly concerning because of the confined nature of the facilities as well as the serious impact of staff shortages.
  1. [50]
    In Radev v State of Queensland (Queensland Police Service), the appellant's workplace was the Brisbane Airport and I reached the conclusion that airports "are renowned for being particularly risky locations with respect to transmission of COVID-19".[26] The same can clearly be said for health centres within correctional facilities. It is evident that Mr Sunny undertakes an important role in an important area that has been covered by Directive 12/21 for the safety of Mr Sunny, his colleagues and the broader community.
  1. [51]
    The Respondent submits that as part of Mr Sunny's role, he is required to physically attend his workplace and is required to have direct physical contact with prisoners as well as a range of clinical and non-clinical employees to provide medical services.[27] I accept that these factors increase the risk of COVID-19 transmission.
  1. [52]
    I conclude the Respondent appropriately considered Mr Sunny's genuinely held religious belief. Ms Richards conveyed that the significant risk to the health and safety of healthcare workers, support staff, their families and patients under Mr Sunny's care was not outweighed by Mr Sunny's religious belief and I find it was fair and reasonable for the Respondent to prioritise that consideration in the circumstances.

Human rights

  1. [53]
    I have considered Mr Sunny's submissions with respect to limits on his human rights. Relevantly, s 13 of the HR Act provides:
  1. (1)
    A human right may be subject under law only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom.
  1. (2)
    In deciding whether a limit on a human right is reasonable and justifiable as mentioned in subsection (1), the following factors may be relevant—

 (a)  the nature of the human right;

 (b)  the nature of the purpose of the limitation, including whether it is consistent with a free and democratic society based on human dignity, equality and freedom;

 (c) the relationship between the limitation and its purpose, including whether the limitation helps to achieve the purpose;

 (d)  whether there are any less restrictive and reasonably available ways to achieve the purpose;

 (e)  the importance of the purpose of the limitation;

 (f)  the importance of preserving the human right, taking into account the nature and extent of the limitation on the human right;

 (g)  the balance between the matters mentioned in paragraphs (e) and (f).

  1. [54]
    Clause 6 of Directive 12/21 provides:

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. [55]
    In the original decision to refuse Mr Sunny's exemption request, that was ultimately accepted upon internal review, Ms Barratt reasoned:

While this decision engages or limits a number of your human rights, including your right to freedom of thought, conscience, religion and belief and your right to freedom of expression, 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 service. The purpose of protecting your colleagues, and people accessing health services from the risk of COVID-19 through vaccination promotes their human rights to life and health, as well as your own. These are important considerations and should be given weight at this particular time. There are no other less restrictive yet effective ways to achieve those purposes.[28]

  1. [56]
    In the Exemption Decision, Ms Richards acknowledged Mr Sunny's right to freedom to demonstrate a religion individually or as part of a group, in public or in private and acknowledged Mr Sunny's deeply held Christian and religious beliefs.[29] Ms Richards submits that her determination complied with s 58 of the HR Act in that it had been made in a way that is compatible with human rights and she had given proper consideration to Mr Sunny's human rights.
  1. [57]
    Ms Richards proceeded to conclude:

Queensland Health's decision to require staff to be vaccinated against COVID-19 was made considering the significant risk to the health and safety of healthcare workers, support staff, their families, and the patients under our care. The decision also took into consideration the potential impact of the decision on human rights.

  1. [58]
    The Respondent contends that Ms Richards took into account Mr Sunny's human rights and determined any limitation was "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."[30]
  1. [59]
    In light of the purpose of Directive 12/21, I accept Ms Richard's conclusion that the impact on Mr Sunny's human rights is reasonably justified in the circumstances. As I have concluded above, I find it was fair and reasonable for the Respondent to determine that Mr Sunny's religious beliefs did not outweigh the purpose of Directive 12/21. The requirements imposed under Directive 12/21 are clearly linked to achieving the purpose of keeping the community safe and ensuring the readiness of the health system.
  1. [60]
    Ms Richards determined there was no other less restrictive yet effective way to ensure the readiness of the health system in responding to the COVID-19 pandemic to protect the lives of all who are associated with WMH.[31] Mr Sunny's role requires direct contact with patients and a range of clinical and non-clinical employees. I am not convinced that there are any less restrictive and reasonably available ways to achieve the purpose of Directive 12/21.
  1. [61]
    For the reasons outlined above and as I similarly concluded in Bloxham v State of Queensland (Queensland Police Service),[32] the Respondent thoroughly considered and appropriately concluded that any limitation of a human right by virtue of the Exemption Decision is reasonable and justified in light of competing interests and the seriousness of those interests. On that basis, I reject Mr Sunny's inferences that the Exemption Decision was not fair and reasonable by virtue of the consideration of his human rights.

Other arguments

  1. [62]
    I have considered Mr Sunny's concerns with respect to consultation and risk assessments.
  1. [63]
    The Respondent submits that prior to the introduction of Directive 12/21, the Respondent complied with its obligations under the Work Health and Safety Act 2011 (Qld) to consult with employees and with the registered unions representing employees. That consultation included dedicated meetings with registered unions representing employees employed within the Department. Mr Sunny did not respond to these submissions despite being given the opportunity to do so.
  1. [64]
    Further, the Respondent submits it conducted appropriate risk assessments prior to the implementation of Directive 12/21.[33] The Respondent submits it is impracticable for the Department to conduct a personalised risk assessment for each affected worker but they undertook risk assessments for the whole workforce in satisfaction of their obligations under the Work Health and Safety Regulation 2011 (Qld).[34] The Respondent contends the Director-General of Queensland Health received regular briefings from the Chief Health Officer regarding the risks of COVID-19 including a specific briefing on employees identified as working in high-risk roles. From these briefings, the Director-General satisfied himself that there was a demonstrable level of risk.[35] Mr Sunny did not respond to these submissions despite being given the opportunity to do so.
  1. [65]
    I conclude that these remaining matters raised by Mr Sunny evince his personal preference not to receive the COVID-19 vaccination. I do not consider those matters to render the Exemption Decision unfair or unreasonable.

Conclusion

  1. [66]
    The Exemption Decision set out evidence in support of the ultimate conclusions to refuse Mr Sunny's exemption request.
  1. [67]
    I am satisfied the Exemption Decision included intelligible justification following consideration of relevant matters. The allegations against Mr Sunny are serious and the evidence supporting the Exemption Decision is compelling in my view.
  1. [68]
    I order accordingly.

Order

  1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appealed against is confirmed.

Footnotes

[1] Appeal Notice, 4 February 2022, 1.

[2] Respondent's Submissions, 25 February 2022, 1 [2].

[3] Health Employment Directive No. 12/21 cls 1, 7-8.

[4] Ibid 1.

[5] Letter from Mr M. Tallis to Mr F. Sunny, 14 January 2022, 2.

[6] Employee COVID-19 vaccine exemption application form, 28 September 2021, 4.

[7] Letter from Ms C. Barratt to Mr F. Sunny, 8 December 2021.

[8] Letter from Mr F. Sunny to Ms C. Barratt, undated; Respondent's Submissions, 25 February 2022, 2 [13].

[9] Respondent's Submissions, 25 February 2022, Attachment 5.

[10] Appeal Notice, 4 February 2022, 4.

[11] Letter from Mr M. Tallis to Mr F. Sunny, 2 February 2022.

[12] [2019] QSC 170, [207]-[210], citing Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, [63]-[76].

[13] Employee COVID-19 vaccine exemption application form, 28 September 2021.

[14] Letter from Mr J. Shumba, undated.

[15] Letter from Ms C. Barratt to Mr F. Sunny, 8 December 2021.

[16] Letter from Ms W. Richards to Mr F. Sunny, 13 January 2022, 1.

[17] Ibid 3.

[18] Letter from Mr M. Tallis to Mr F. Sunny, 14 January 2022.

[19] Letter from Mr F. Sunny to Mr M. Tallis, 31 January 2022.

[20] Employee COVID-19 Vaccine Exemption Application Form, 4.

[21] Respondent's Submissions, 25 February 2022, 1-2 [4].

[22] [2022] QIRC 091, 9 [36].

[23] Respondent's Submissions, 25 February 2022, 2 [9].

[24] Letter from Ms W. Richards to Mr F. Sunny, 13 January 2022, 2.

[25] [2022] QIRC 039.

[26] [2021] QIRC 414, [54].

[27] Respondent's Submissions, 25 February 2022, 5 [29]b).

[28] Letter from Ms C. Barratt to Mr F. Sunny, 8 December 2021, 3.

[29] Letter from Ms W. Richards to Mr F. Sunny, 13 January 2022, 2.

[30] Respondent's Submissions, 25 February 2022, 4 [25].

[31] Ibid 3 [21].

[32] [2022] QIRC 037, 11 [47].

[33] Respondent's Submissions, 25 February 2022, 1-2 [7].

[34] Ibid 4 [26].

[35] Ibid.

Close

Editorial Notes

  • Published Case Name:

    Sunny v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Sunny v State of Queensland (Queensland Health)

  • MNC:

    [2022] QIRC 119

  • Court:

    QIRC

  • Judge(s):

    McLennan IC

  • Date:

    01 Apr 2022

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Bloxham v State of Queensland (Queensland Police Service) [2022] QIRC 37
2 citations
Jump To
Cite 1 - [2022] QIRC 37
Cite 2 - [2022] QIRC 37
Edwards v State of Queensland (Queensland Health) [2022] QIRC 91
2 citations
Jump To
Cite 1 - [2022] QIRC 91
Cite 2 - [2022] QIRC 91
Gilmour v Waddell [2019] QSC 170
2 citations
Jump To
Cite 1 - [2019] QSC 170
Cite 2 - [2019] QSC 170
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
2 citations
Jump To
Cite 1 - (2013) 249 CLR 332
Cite 2 - (2013) 249 CLR 332
Radev v State of Queensland (Queensland Police Service) [2021] QIRC 414
2 citations
Jump To
Cite 1 - [2021] QIRC 414
Cite 2 - [2021] QIRC 414
Slykerman v State of Queensland (Queensland Health) [2022] QIRC 39
2 citations
Jump To
Cite 1 - [2022] QIRC 39
Cite 2 - [2022] QIRC 39

Cases Citing

Case NameFull CitationFrequency
Amos v State of Queensland (Queensland Health) [2022] QIRC 1972 citations
Bakhash v State of Queensland (Department of Education) [2022] QIRC 3621 citation
Daley v State of Queensland (Department of Education) [2023] QIRC 2771 citation
Davies v State of Queensland (Queensland Health) [2022] QIRC 1513 citations
De Martin v State of Queensland (Queensland Health) [2023] QIRC 2651 citation
Elliott v State of Queensland (Queensland Health) [2022] QIRC 3322 citations
Fitzgerald v State of Queensland (Queensland Health) [2023] QIRC 872 citations
Hanson v State of Queensland (Queensland Health) [2022] QIRC 2722 citations
Harris v State of Queensland (Queensland Health) [2022] QIRC 1533 citations
Hensen v State of Queensland (Queensland Corrective Services) [2022] QIRC 3222 citations
Janulewicz v State of Queensland (Queensland Health) [2023] QIRC 261 citation
Major v State of Queensland (Queensland Ambulance Service) [2023] QIRC 1131 citation
McKinney v State of Queensland (Queensland Health) [2023] QIRC 1321 citation
Mulhall v State of Queensland (Department of Education) [2022] QIRC 3252 citations
Smith v State of Queensland (Department of Environment and Science) [2022] QIRC 4001 citation
1

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