Lawrence v State of Queensland (Queensland Health)
[2022] QIRC 130
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- Lawrence v State of Queensland (Queensland Health)[2022] QIRC 130
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Lawrence v State of Queensland (Queensland Health)[2022] QIRC 130
Lawrence v State of Queensland (Queensland Health)[2022] QIRC 130
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Lawrence v State of Queensland (Queensland Health) [2022] QIRC 130 |
PARTIES: | Lawrence, Paula (Appellant) v State of Queensland (Queensland Health) (Respondent) |
CASE NO: | PSA/2022/216 |
PROCEEDING: | Public Service Appeal – appeal against a decision under a directive |
DELIVERED ON: | 6 April 2022 |
MEMBER: HEARD AT: | Pidgeon IC On the papers |
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 – appeal against a decision under a directive – where appellant was denied an exemption from complying with Health Employment Directive No 12/21 Employee COVID-19 vaccination requirements – where appellant submits that decision is unfair and unreasonable |
LEGISLATION: | Industrial Relations Act 2016, ss 562, 562B and 562C Public Service Act 2008, ss 187 and 194 Health Employment Directive No 12/21 Employee COVID-19 vaccination requirements |
Reasons for Decision
Introduction
- [1]Ms Paula Lawrence (the Appellant) is employed by the State of Queensland (Queensland Health) (the Respondent) as a Senior Radiographer at Gladstone Hospital as part of the Central Queensland Hospital and Health Service (CQHHS).
- [2]Ms Lawrence has been an employee of the Department since 8 January 2018.
- [3]On 4 January 2022, Ms Lawrence received an internal review decision confirming a decision to decline her application for an exemption from the requirement for vaccination against COVID-19 as required by Health Employment Directive No 12/21 (Directive 12/21) and HR Policy B70 Employee COVID-19 vaccination requirements (the Policy). Under the heading 'My decision', Mr John Burns (Acting Health Service Chief Executive, CQHHS) said:
…
Actions taken to review the decision made by Associate Professor Navathe,
I have carefully and fully considered the following documentation and information:
- Review request documentation;
- The mandatory vaccination outcome decision by Associate Professor Navathe provided to you dated 7 December 2021;
- Human Resources Policy E12 – Individual employee grievances;
- Public Service Commission Directive 11/20 Individual employee grievances (PSC Directive);
- Central Queensland Hospital and Health Service sub-delegations manual section 24.2.
…
My review
- On 28 September 2021, the Queensland Health Director General issued all staff with notification of the Directive and their obligations to copy with it. Dr Wakefield's communication confirmed that employees who are not compliant with the Directive by 1 October 2021 must have applied for an exemption.
- On 23 September 2021, you applied for an exemption from mandatory vaccination against COVID-19.
- On 25 October 2021, the Queensland Health Director General sent an email to all employees mandating employees who work in healthcare facilities to be fully vaccinated by 1 November 2021.
- On 1 December 2021, your application was reviewed and considered by the Queensland Health Advisory Panel.
- In a letter from Associate Professor Navathe, dated 7 December 2021, you were advised of the decision in relation to your application for an exemption, specifically, that your application was denied.
- On 20 December 2021, you applied for an internal review of the decision to decline your application for an exemption against the vaccine against COVID-19.
Your additional documentation submitted with your internal review request
As part of my review, I note you provided further supporting documentation with your request for an internal review. These documents were:
- An email dated 20 December 2021, in which you stated that you did not agree that your individual circumstances were considered and that your exemption application be reconsidered on the basis of genuine religious beliefs.
While I may not mention every document and/or information contained in these documents, I wish to advise I have fully and carefully considered everything you have provided.
My decision
In considering the requirements under PSC Directive 11/20 and the actions taken as outlined above, I am of the view that Associate Professor Navathe has undertaken appropriate steps and consideration in relation to your mandatory vaccination exemption request.
I also provide you with my decision in relation to requests in your internal review letter. I can confirm that I have reviewed your original application and subsequent supporting information, including your request for review and explanation that you feel that your individual circumstances have not been considered. I concur with the original decision in that:
- Your individual circumstances have been considered and were balanced against the purposes of the vaccination requirements
- There is no less restrictive means other than vaccination which would sufficiently ensure the safety of yourself, other staff members and patients.
Human Rights considerations
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 and your right not to receive medical treatment without consent, 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.
….
Is the Appellant entitled to appeal?
- [4]Section 194 of the Public Service Act 2008 (The PS Act) lists various categories of decisions against which an appeal may be made. Section 194(1)(eb) provides that an appeal may be made against "a decision a public service employee believes is unfair and unreasonable (a fair treatment decision)".
- [5]The appeal notice was filed with the Industrial Registry on 7 February 2022. This means that it was filed outside of the 21 day period for lodging an appeal. The Appeal notice includes a section for the Appellant to apply for an extension of time to lodge the appeal notice and to provide reasons why the appeal was not lodged within the 21 day appeal period. Ms Lawrence has not filled in this section of the form, nor has she indicated a date which she received the decision.
- [6]I note that the letter from Mr Burns is undated, but for the inclusion of 'December 2021' underneath Mr Burns' signature.
- [7]The Respondent contends that Ms Lawrence provided no explanation as to why her appeal was filed outside the statutory time limit and points out that Mr Burns' letter to Ms Lawrence specifically advised Ms Lawrence that any appeal had to be lodged with the Industrial Registry within 21 days.
- [8]Further to this, the Respondent says that Ms Lawrence is appealing a decision to confirm the refusal of her application for an exemption from COVID-19 vaccination, a process which commenced on 30 September 2021 when she submitted her application. In the context of a 21 day limitation period, the delay by Ms Lawrence in filing her appeal is significant and, in the absence of any reasons, inexcusable.
- [9]The Respondent submits that extensions to legislative timeframes should only be allowed in exceptional circumstances. In the absence of any explanation, Ms Lawrence has not demonstrated any exceptional circumstances. On that basis, the Respondent submits that the Commission should decline to grant any extension of time for the filing of the Appeal.
- [10]In replying to the Respondent's submissions regarding the application being out of time, Ms Lawrence says that she informed the Manager of HR services of her intention to appeal on 10 January 2022.[1]
- [11]Ms Lawrence says that she lodged her application to QIRC via email on 14 January 2022.[2] Ms Lawrence says that on 17 January 2022, she received a reply from the Registry informing her that page 2 of the form had not been attached to the email and that the entire form would need to be submitted.[3] Later on 17 January 2022, Ms Lawrence send an email to the QIRC Registry stating 'Thank you for your email. Please find all pages of form 89 as requested'.[4]
- [12]Unfortunately, the email Ms Lawrence sent with the complete form attached was not sent to the correct email address. Ms Lawrence had omitted the 'dot' from the Registry email address which caused the form to not be delivered.
- [13]Ms Lawrence says that on 7 February 2022 she received an email from Shareen McMillan, Executive Director, Workforce Division stating that 'to date, the Health Service has not received any information that you have lodged a public service appeal'. Ms Lawrence says that she then contacted QIRC to find out what had happened to her application 'to be told it had not been received'.
- [14]Ms Lawrence says that she went through 'sent mail' and together with the staff member she spoke to from the Registry realised that the 'dot' was missing from the email address. Ms Lawrence sent the form again to the correct email address and the application was processed that day.
- [15]Ms Lawrence says that she informed Ms Mahoney of the email address error on 9 February 2022 when she was made aware of it.
- [16]In previous decisions where I have been required to decide whether to grant an extension for the filing of an application, I have considered the following:[5]
• The length of the delay;
• the explanation for the delay;
• the prejudice to the Appellant if the extension of time is not granted;
• the prejudice to the Respondent if the extension of time is granted; and
• any relevant conduct of the Respondent.
- [17]While I agree with the Respondent that the delay is significant, Ms Lawrence has provided a plausible explanation for the delay and has provided copies of the emails she sent on the days in question. I find no reason not to accept Ms Lawrence's explanation.
- [18]While there is some prejudice to the Respondent if the extension of time is granted, I note that while the Respondent raised a jurisdictional objection to the late filing of the appeal, it also goes on to make submissions with regard to the decision being appealed. There is clearly a degree of prejudice to the Appellant if her appeal is not heard.
- [19]I note that the Directions Order I made on 9 February 2022 invited either party to make any further submissions by 16 March 2022 and then, in anticipation of such submissions being made, provided a further opportunity for a party to file an application for leave to make further oral or written submissions by 18 March 2022.
- [20]On Monday 14 March 2022, Ms Joanne Chapman, Senior Workplace Relations Advisor sent an email to the Registry to advise that CQHHS would not be providing further submissions in reply to Ms Lawrence's submissions. Ms Lawrence's submissions address the reasons for the appeal being filed out of time in some detail.
- [21]As both parties have made submissions addressing the decision subject of the appeal and I accept that there is a reasonable explanation for the late filing, I have determined to grant the extension of time for filing and hear the appeal on the papers.
Appeal Principles
- [22]Section 562B(3) of the Industrial Relations Act 2016 (IR Act) provides that "the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable".
- [23]Findings made in the decision which are reasonably open on the relevant material or evidence before the decision maker, should not be expected to be disturbed on appeal.
- [24]A public service appeal is not an opportunity for a fresh hearing, but a review of the decision arrived at by the decision maker. To determine the appeal, I will consider whether the decision conveyed to Ms Lawrence by Mr Burns was fair and reasonable.
- [25]In deciding this appeal, s 562C(1) of the IR Act provides that the Commission may:
- (a)confirm the decision appealed against; or
- (c)for another appeal-set the decision aside, and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.
Health Employment Directive No. 12/21
- [26]Directive 12/21 sets out the mandatory vaccination requirements for all current and prospective health service employees employed under the Hospital and Health Boards Act 2011 ('HHB Act').
- [27]Clause 1 of Directive 12/21 provides that compliance with the Directive is mandatory. Clause 2 provides that the purpose of Directive 12/21 is to outline COVID-19 vaccination requirements for existing and prospective employees employed in the identified high-risk groups designated in the Directive.
- [28]Clause 6 of Directive 12/21 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 Directive 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).
- [29]Clause 7 of Directive 12/21 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 Directive 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 Directive.
- [30]Clause 8 of Directive 12/21 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:
a. 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.
b. 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 Directive.
- [31]Clause 10 of Directive 12/21 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 Directive for the duration of that exemption.
Ms Lawrence's exemption application
- [32]In submissions filed on 22 February 2022, the Respondent sets out relevant information about Ms Lawrence's exemption application and attaches the relevant materials which were available to the decision maker.
- [33]As a Senior Radiographer, Ms Lawrence is categorised within Group 2 under cl 7.1 of Directive 12/21 and is, on that basis, subject to the mandatory vaccination requirements at cl 8.1.
- [34]On 23 September 2021, Ms Lawrence applied for an exemption to the mandatory vaccine requirements, identifying a 'genuinely held religious belief'.[6]
- [35]Attached to Ms Lawrence's application were three documents in support of her exemption application. I have read each of these documents and I concur with the summary of their content set out in the Respondent's submissions:
- a)a letter dated 21 September 2021 in support of her exemption application, in which she stated she was a member of the Nazarene Assembly of the Way, an international Hebrew Assembly. Ms Lawrence stated her Hebrew faith and heritage deemed her body as a 'temple of the Holy Spirit' and she was unable to receive 'unclean food and injections' to protect the physical integrity of her body, including COVID-19 vaccines; and
- b)a letter dated 30 September 2021 from Moreh Duane Harris (Chief Moreh and Founder, Nazarene Assembly of the Way). Mr Harris advised that Ms Lawrence was an active member of the Nazarene Assembly of the Way, which objected to receiving COVID-19 vaccines due to their belief it violated their principles in respect to protecting the physical integrity of the body.
- [36]I note that the letter referred to above a [35](a) commences with the words, 'I Paula Lawrence Norbal hereby seek religious exemption from vaccination'. The letterhead on the document includes a United States of America postal address of 1600-B SW Dash Point Rd. Federal Way WA, 98023.
- [37]I further note that the letter referred to in [35](b) commences with the words:
My name is Duane Harris, found and Chief Moreh, teacher of Nazarene, Assembly of The Way, an international Messianic Hebrew Assembly. I can confirm that Paula & Lawrence Norbal, are active members of our International Hebrew Assembly since March 2019. The whole family has been actively involved in our various online teachings, studies and fellowship.
- [38]Both letters contain similar content including: reference to the New Testament; information about the content of vaccines; and the position of the religion with regard to vaccination.
- [39]By letter dated 7 December 2021, Associate Professor Pooshan Navathe (Executive Director Medical Services, CQHHS) advised Ms Lawrence that her application for an exemption had been refused.[7]
- [40]Associate Professor Navathe's letter outlines the steps he took in assessing Ms Lawrence's application and the evidence or other materials on which the decision was based. Dr Navathe's letter then goes on to say:
Reasons for decision
Your individual circumstances, including your religious belief and the connection of that religious belief to the requirements under the Directions, were balanced against the purposes of the vaccination requirements.
I have had regard to the intention of the Directive, specifically the requirement 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.
The Directive contemplates the high degree of risk to public health associated with work performed in healthcare settings and will ensure Queensland Health can provide a safe environment for both employees and patients.
On balance, I consider that there is no less restrictive means other than vaccination which would sufficiently ensure the safety of yourself, other staff members and patients.
….
- [41]Associate Professor Navathe's letter also addresses Ms Lawrence's human rights:
Human Rights consideration
I am also satisfied that my decision to refuse your exemption application is compatible with human rights. 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 serve.
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.
- [42]On 20 December 2021, Ms Lawrence requested an internal review of the decision to refuse her exemption application.[8] Ms Lawrence's emailed request for an internal review states:
Good afternoon
I am not satisfied with the decision made by Associate Professor Pooshan Navathe in relation to my application for exemption based on a genuinely held religious belief.
…
I sought an exemption and have followed the stated directive and provided the information requested to be exempt.
The decision that has been given is not based on my exemption application and clearly states:
Your individual circumstances, including your religious belief and the connection of that religious belief to the requirements under the Directive, were balanced against the purposes of the vaccination requirements.
Yet my exemption has been denied?
Instead you state the reasons why the Directive wants me to be vaccinated, therefore no consideration has been taken for my individual circumstances and the reason for my application.
It continues with risk to public health, employees, patients etc
…
I therefore appeal the decision to deny my application for exemption from COVID-19 vaccinations and request a re-examination of my exemption application statement on the basis of my genuine religious beliefs.
- [43]On 4 January 2022, Ms Lawrence received a letter from Mr Burns advising that the internal review had been completed and the decision to refuse Ms Lawrence's exemption application had been confirmed.[9] (the decision subject of this appeal).
The Appeal
- [44]On 7 February 2022, Ms Lawrence's Appeal notice was filed in the Industrial Registry. Part C of the appeal notice asks the appellant to briefly state the reasons for the appeal. Ms Lawrence says:
I appeal on the basis of breach of my human rights
Breach of my bodily integrity
Work place bullying and threatening of losing my job if I did not comply.
Acting Health Service Chief Executive John Burns admits the decision made 'limits a number of my human rights including my right to equality and non-discrimination, and my right to not receive medical treatment without consent.
- [45]In her submissions filed on 7 March 2022, Ms Lawrence provides some further detail regarding her appeal reasons.
Religious beliefs
- [46]Ms Lawrence says that the decision of Associate Professor Navathe said that he had considered her religious beliefs but that there is no indication that her 'religious beliefs have been disproven in order to deny' her application.
- [47]Ms Lawrence says that the decision to refuse her exemption application on the grounds of her religious belief are still unclear and there is no mention in the decision of why her religious beliefs have been denied.
- [48]Ms Lawrence asks whether there have been any investigations into her genuinely held religious beliefs as set out in the information provided by herself and her support Chief Moreh Duane Harris. Ms Lawrence also asks how Queensland Health decides what is a genuinely held belief.
Human rights
- [49]Ms Lawrence says that it is her human right to decide what goes in her body and to defend or deny any sort of abuse on herself.
Workplace bullying
- [50]Ms Lawrence says that she has received correspondence from Ms McMillan on 7 February 2022 stating that she may be liable for discipline and that she is required to show cause as to why disciplinary findings should not be made against her. Ms Lawrence says that to threaten her with discipline is workplace bullying.
COVID-19
- [51]Ms Lawrence says that from the beginning of COVID-19, she was deemed an 'essential worker' and continued to work right through at Chermside Breastscreen, taking no time off for health reasons or otherwise. She says that she has not ever had a symptom nor needed to be tested for COVID-19.
Outcome sought
- [52]Ms Lawrence says that there has been no justification for the denial of her exemption application based on her religious beliefs.
- [53]Ms Lawrence says that she seeks 'reasons without discrimination or prejudice why genuine religious exemption application has been denied'.
Respondent submissions
- [54]The Respondent says that the decision to confirm the refusal of the exemption application was fair and reasonable.
- [55]The Respondent submits that Directive 12/21 is based on the Chief Health Officer's directions regarding workers in healthcare settings and hospital entries. Noting the Chief Health Officer is the most senior medical officer in the State, Directive 12/21 is both lawful (being issued under section 51A of the Hospital and Health Boards Act 2011) and reasonable.[10]
- [56]The Respondent says that both Associate Professor Navathe (in the original decision) and Mr Burns (in the decision under appeal) considered Ms Lawrence's exemption request made on the basis of religious belief and weighed these against objects and requirements of the HED 12/21, noting the high level of risk to the health and wellbeing of patients, colleagues and other key stakeholders who access services from Gladstone Hospital and CQHHS, including from vulnerable communities. The Respondent draws attention to the following:
a) Ms Lawrence's workplace is Gladstone Hospital. Any health service facility is a high-risk location with respect to COVID-19 transmission;
b) As part of her role, Ms Lawrence is required to physically attend Gladstone Hospital to undertake her professional duties and to have direct physical contact with patients; and
c) Ms Lawrence's duties required her to interact and communicate closely with a range of clinical and non-clinical employees and patients throughout the course of each day, including vulnerable members of the community. This increases the risk of transmission of COVID-19 between patients and Ms Lawrence.
- [57]The Respondent says that it was on this basis that Mr Burns confirmed the decision. Importantly, the Respondent says that Mr Burns determined that there were no other less restrictive means, other than vaccination, which would sufficiently ensure the safety of Ms Lawrence, other staff and patients.
- [58]The Respondent says that exemptions, including exemptions on the basis of a genuinely held religious belief, or any other circumstance, are considered in accordance with the Department's obligations and have only been approved in exceptional circumstances.
- [59]The Respondent notes that Ms Lawrence has complained that the decision has breached her human rights and says that it is clear that Ms Lawrence's complaint is that her religious beliefs have not been given the degree of recognition they deserve.
- [60]The Respondent says that Ms Lawrence's human rights were taken into account and Mr Burns determined that any limitation to her human rights 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'.
- [61]With regard to Ms Lawrence's submissions of workplace bullying and the threat of losing her job if she does not comply with the Direction, the Respondent says that Ms Lawrence has provided no evidence that she has been bullied because of her failure to comply with Directive 12/21. With regard to the threat of loss of her employment, the Respondent says that the requirement that she obtain a COVID-19 vaccination is a lawful and reasonable condition of her employment.
- [62]The Respondent says that Ms Lawrence fails to accept the importance of competing considerations of workplace and community safety and how they could take precedence over her religious beliefs.[11]
- [63]With reference to the now superseded Hospital Entry Direction (No. 7) and the current Hospital Entry Direction (No. 11), the Respondent says that since 13 December 2021, except in specific circumstances, a person who is unvaccinated (other than a patient of the hospital) must not enter, or remain at, a hospital. With reference to the Workers in a healthcare setting (COVID-19 Vaccination Requirements) Direction (superseded) and the current Workers in a healthcare setting (COVID-19 Vaccination Requirements) Direction (No. 3), the Respondent says that since 10 November 2021, a worker in healthcare must not enter, work in, or provide services in a healthcare setting unless the worker in healthcare complies with the COVID-19 vaccination requirements.
- [64]Finally, the Respondent says that Mr Burns did not dispute that Ms Lawrence genuinely held the beliefs she expressed. However, it was not incumbent on the Department or CQHHS to accept that her personal religious beliefs outweighed the other factors to be considered by the Department and CQHHS, including the public health risk of COVID-19 and the human rights of Ms Lawrence, her family, patients, colleagues and the broader community.
Consideration
- [65]I have considered all of the material available to me and have read all submissions of the parties.
- [66]My role in this appeal is not to put myself in the place of Associate Professor Navathe who determined not to grant the exemption to Ms Lawrence. I am required to consider whether it was fair and reasonable for Mr Burns to uphold that original decision of Associate Professor Navathe.
The process followed was fair and reasonable
- [67]Firstly, I note that Ms Lawrence was properly informed that she was able to seek a review of the decision of Associate Professor Navathe. Associate Professor Navathe's letter specifically informed Ms Lawrence that she had 14 days to make an application to review the decision. Further, the letter goes on to say 'your application should clearly state the reasons you are not satisfied with the decision and what action you believe would resolve these matters…'.
- [68]Ms Lawrence clearly availed herself of this right to request a review and Mr Burns has undertaken that review. I have read Ms Lawrence's request for a review and included it above at [42].
Ms Lawrence's religious beliefs were taken into consideration
- [69]One of Ms Lawrence's grounds for review is that no consideration has been given to her religious beliefs as set out in her application and that the decision of Associate Professor Navathe provides only reasons why the Directive requires vaccination.
- [70]With regard to Ms Lawrence's appeal ground that there is no indication that her 'religious beliefs have been disproven in order to deny' her application, I note that at no stage has it been suggested by Mr Burns (or Associate Professor Navathe) that Ms Lawrence's religious beliefs are not genuine.
- [71]Mr Burns found that Associate Professor Navathe had 'undertaken appropriate steps and consideration in relation to your mandatory vaccination exemption request'. The written decision of Mr Burns establishes his finding that Associate Professor Navathe made his decision by balancing Ms Lawrence's religious beliefs against the purposes of the vaccine requirements.
- [72]I am unable to find that Ms Lawrence's religious beliefs were not considered by Mr Burns. I further find that it was open to Mr Burns to find that Associate Professor Navathe had considered Ms Lawrence's religious beliefs.
Human rights
- [73]Mr Burns' decision clearly acknowledges that Ms Lawrence's human rights are impacted by the Directive. He goes on to say that these limits on human rights are justified by the need to ensure the readiness of the health system in a pandemic and the need to protect the lives of employees, patients and the community.
- [74]I understand that Ms Lawrence maintains that the decision does not recognise her human rights. However, disagreement with the outcome of the review does not render it unfair or unreasonable.
- [75]I am satisfied that Ms Lawrence's human rights were considered by Mr Burns. I also note that Ms Lawrence's human rights were also addressed in the decision of Associate Professor Navathe.
No evidence of 'workplace bullying'
- [76]Ms Lawrence has not provided any evidence that the vaccine exemption process can be characterised as workplace bullying.
- [77]It seems to me that the letter of Mr Burns clearly sets out the process he followed and the material he reviewed. The letter issues Ms Lawrence with a lawful direction to comply with the requirement to be vaccinated and informs her that failure to follow the lawful direction may mean that she is liable for disciplinary action pursuant to s 187(1)(d) of the Public Service Act 2008. This is not workplace bullying. It is simply the provision of information to Ms Lawrence to provide her with procedural fairness. Understanding the consequences of non-compliance with a direction enables Ms Lawrence to understand the situation she is in and what she can expect to happen next.
- [78]Ms Lawrence makes reference to other correspondence stating that she might be liable for discipline on the basis of non-compliance with the direction that she be vaccinated. Correspondence Ms Lawrence has received regarding disciplinary proceedings is not within the scope of this appeal.
Ms Lawrence's history of being an essential worker and not yet contracting COVID-19
- [79]Ms Lawrence's submissions bring to my attention that she was deemed an essential worker from the beginning of the pandemic and that she has not needed to take time off due to illness and that she has never needed to be tested for COVID-19.
- [80]Ms Lawrence's exemption request was made on the grounds of religious belief. Therefore, information about her recent medical history and work attendance are not matters I need to consider in determining if Mr Burns' decision was fair and reasonable.
The decision was fair and reasonable
- [81]Ms Lawrence says that there has been no justification for the denial of her exemption and that she seeks reasons why her genuine religious beliefs exemption request was denied.
- [82]Mr Burns provided Ms Lawrence with a justification for the denial of her exemption request and told her why the request was denied.
- [83]I am satisfied that Mr Burns reviewed: Ms Lawrence's exemption request and attached correspondence regarding her religious beliefs; the decision of Associate Professor Navathe which balanced Ms Lawrence's religious beliefs against the purposes of the Direction; gave consideration to Ms Lawrence's human rights; and properly informed Ms Lawrence of her right to seek an External Review of the decision.
- [84]There is no information before me which serves to demonstrate that the internal review decision of Mr Burns upholding the decision of Associate Professor Navathe was not fair and reasonable.
- [85]The decision appealed against is confirmed.
Footnotes
[1] Email from [email protected] to [email protected].
[2] Email from [email protected] to [email protected].
[3] Email from [email protected] to [email protected].
[4] Email from [email protected] to [email protected].
[5]Lisle v The Public Trustee of Queensland [2021] QIRC 353, [16].
[6] Ms Lawrence's exemption application form is Appendix 1 to the Respondent's submissions filed 22 February 2022.
[7] Respondent's submissions filed 22 February 2022, Attachment 2.
[8] Respondent submissions filed 22 February 2022, Attachment 3.
[9] Respondent submissions filed 22 February 2022, Attachment 4.
[10]Slykerman v State of Queensland (Queensland Health) [2022] QIRC 039, [41].
[11]Slykerman v State of Queensland (Queensland Health) [2022] QIRC 039 [29].