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Grundkvist v State of Queensland (Queensland Health)[2022] QIRC 135

Grundkvist v State of Queensland (Queensland Health)[2022] QIRC 135

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Grundkvist v State of Queensland (Queensland Health) [2022] QIRC 135

PARTIES:

Grundkvist, Arianne Clare

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO.:

PSA/2022/6

PROCEEDING:

Public Service Appeal - Fair treatment decision

DELIVERED ON:

8 April 2022

HEARING DATE:

22 February 2022

MEMBER:

Merrell DP

HEARD AT:

Brisbane

DATES OF WRITTEN

SUBMISSIONS:

Appellant's written submissions filed on 21 January 2022 and on 23 February 2022 and Respondent's written submissions filed on 4 February 2022

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 – Appellant employed by the State of Queensland as a Senior Pharmacist in the Darling Downs Hospital and Health Service – cl 8 of the Health Employment Directive No. 12/21 – Employee COVID19 vaccination requirements requires existing employees who are employed to work in a hospital or other facility, where clinical care or support is provided, to have received at least a first dose of a COVID-19 vaccine by 30 September 2021 and a second dose of a COVID19 vaccine by 31 October 2021 unless exempted – Appellant applied for an exemption – exemption not granted – Appellant sought internal review of decision not to grant an exemption – internal review decision confirmed decision not to grant an exemption – appeal against internal review decision – whether internal review decision was fair and reasonable – internal review decision was fair and reasonable – decision reviewing exemption decision confirmed

LEGISLATION:

Health Employment Directive No. 12/21 - Employee COVID-19 vaccination requirements, cl 6, cl 7, cl 8 and cl 10

Hospital and Health Boards Act 2011, s 51A

Industrial Relations Act 2016, s 562B and s 562C

CASES:

Colebourne v State of Queensland [2022] QIRC 016

Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203; (2020) 305 IR 311

Tilley v State of Queensland [2022] QIRC 002

APPEARANCES:

The Appellant in person.

Mr G. O'Gorman and Ms J. O'Dea of the State of Queensland (Queensland Health).

Reasons for Decision

Introduction

  1. [1]
    Ms Arianne Clare Grundkvist is employed by the State of Queensland as a Senior Pharmacist at the Toowoomba Hospital ('the Hospital'). The Hospital is part of the Darling Downs Hospital and Health Service ('the Health Service'). Ms Grundkvist is employed through Queensland Health ('the Department').
  1. [2]
    Dr John Wakefield, the Chief Executive of the Department, pursuant to s 51A(1) of the Hospital and Health Boards Act 2011, approved, with effect from 11 September 2011, Health Employment Directive No. 12/21 - Employee COVID19 vaccination requirements ('the Directive').
  1. [3]
    Relevantly, the combined effect of cls 7 and 8 of the Directive is that employees who are employed to work in a hospital or other facility, where clinical care or support is provided, had to provide to their line manager, or upload into the designated system, evidence that they had received the first dose of a COVID19 vaccine by 30 September 2021 and that they had received the second dose of a COVID19 vaccine by 31 October 2021. By cl 10 of the Directive, an employee is not required to be so vaccinated if they are granted an exemption because the employee had a recognised medical contraindication, had a genuinely held religious belief or where '… another exceptional circumstance exists.'
  1. [4]
    It is not disputed that the Directive, by its terms, applied to Ms Grundkvist. That is to say, it is not disputed that Ms Grundkvist is employed to work in a hospital or other facility, where clinical care or support is provided.
  1. [5]
    On 29 September 2021, Ms Grundkvist applied for an exemption. By written decision dated 29 November 2021, Ms Hayley Farry, Executive Director Workforce of the Health Service, advised Ms Grundkvist that she was not granted the exemption as sought on the basis that the grounds raised by her did not amount to exceptional circumstances ('Ms Farry's decision').
  1. [6]
    By letter dated 30 November 2021 to Professor Annette Scott, Acting Chief Executive of the Health Service, Ms Grundkvist sought an internal review of Ms Farry's decision.
  1. [7]
    By written decision dated 4 January 2022, Professor Scott confirmed Ms Farry's decision ('the decision').
  1. [8]
    By appeal notice filed on 5 January 2022, Ms Grundkvist, pursuant to ch 7, pt 1 of the Public Service Act 2008 ('the PS Act'), appealed against the decision.
  1. [9]
    The purpose of an appeal pursuant to ch 7, pt 1 of the PS Act is to decide whether the decision appealed against was fair and reasonable.[1] The issue for determination in such an appeal is whether the decision appealed against was fair and reasonable.[2]
  1. [10]
    The only power I have, to make an order of the kind referred to in s 562C(1)(a) or (b) of the Industrial Relations Act 2016 (to confirm the decision appealed against, or to set aside the decision appealed against and substitute another decision or return the matter to the decision maker) is in respect of whether the decision was fair and reasonable. Other issues raised by Ms Grundkvist in her submissions about the legality of the Directive, or about disciplinary action that may be taken against her, are beyond the scope of this appeal.
  1. [11]
    For the reasons that follow, the decision was fair and reasonable.

Background to the decision

  1. [12]
    In her exemption application, Ms Grundkvist relevantly stated:

The current evidence, applicable to me as an individual and the region I work in, shows that the benefit of vaccination does not outweigh the risk of the disease nor the risk of the vaccination itself.

I am not an anti-vaxxer and have received many vaccines in my lifetime, as have my children. However, evidence-based medicine requires evidence in order to make decisions on safety and efficacy, which I believe there is not enough of to make an informed decision. The threat of significant morbidity to myself from coronavirus is very low and does not warrant the potential unknown risks of vaccination at this time. Lastly, I believe it is unethical to force a vaccination upon a human as a condition of continued employment.

I hope you will consider my application for exemption, even if it is temporary until further safety data become available.

I have much more to say if given the opportunity so I've just picked a few points to support my claim for now:

*There is no long-term safety data for any of the available vaccines.

*The mRNA vaccines are a new technology for humans and therefore safety data cannot be extrapolated from other human vaccines already in use.

*The provisional registration of the Pfizer vaccine was based on one trial, funded by Pfizer, with a median follow-up of 2 months. This limits the conclusion on persistence of efficacy and late onset/rare adverse effects, as per the AusPAR clinical evaluator's recommendations.

*It is not yet clear whether infection rates or transmissibility is reduced by the vaccines, suggesting vaccinating myself may not benefit others.

*There has not been a case of Coronavirus in this hospital for over 5 months.

*While cases are now more common in under 50s in Australia, deaths are still largely limited to seniors. I am a healthy 40 year old.

*Influenza causes almost 4000 deaths per year in Australia yet there is no vaccine mandate for Influenza. Coronavirus has caused less than 1300 deaths (from 101,000 cases) since the first case in Australia and the majority of these were elderly or with at least one chronic comorbidity. I do not fit that demographic.

  1. [13]
    In her decision, Ms Farry relevantly stated that:
  • the Department is of the view that the COVID-19 virus presents a significant risk to the health and safety of healthcare workers, support staff, their families, and the patients under its care. Evidence from around the world demonstrates not only the safety of the COVID-19 vaccine, but the very high-level efficacy of this vaccine;
  • vaccination reduces the risk of hospitalisation and death from COVID-19 by over 90%, when compared to those who are unvaccinated. Vaccination also means staff are much less likely to transmit the virus to others, including, importantly, to the Health Service's sometimes-immunocompromised patients;
  • the concerns raised by Ms Grundkvist were of the nature of being 'vaccine hesitancy', namely, a delay in acceptance or a refusal of vaccines despite availability, including concerns about the safety, efficacy or reliability of the COVID-19 vaccines; and
  • the Department's position is that COVID-19 vaccinations are safe and reliable which is supported by the fact that it has been available and operating in Australia for some time during 2021.
  1. [14]
    In her internal review application of Ms Farry's decision, Ms Grundkvist submitted that:
  1. SAFETY

The mRNA vaccines use a new technology, never before used in humans, and have not been in use long enough with adequate safety monitoring systems in place to show evidence of no harm. There is a real risk of severe injury, hospitalisation and death from mRNA vaccines, and much of the safety profile is still unknown, especially longer term. This still has not been acknowledged by Queensland Health in correspondence with me. Rather, it is constantly reiterated, without provision of evidence, that the vaccines are safe. I don't believe that a blanket statement regarding safety can be made to encompass all individuals. Evaluating safety includes relativity, matched alongside risk, which is low for me as an individual. Even if that risk increased as Australia opens up, I am able to take responsibility for my own decisions. That risk is also to be matched up against how the vaccination status of an individual affects the risk to others, which is only applicable if the vaccines are effective at stopping transmission.

  1. EFFICACY

Vaccine efficacy at reducing severe disease and death is acknowledged, however this relates only to my own safety, and it is my assessment that this benefit does not outweigh the risk of having the vaccine. Since that choice does not affect anyone else, it is reasonable to be left up to me.

Efficacy of reducing transmission is the only factor that should be assessed in deciding whether mandating the vaccine for staff is necessary to prevent harm to others. As discussed in my letter to Dr Wakefield, with references, the evidence for the mRNA vaccines preventing transmission is limited and therefore not warranted to enforce vaccination in order to protect others.

SUMMARY

When you compare these two pillars, SAFETY and EFFICACY, how do you balance the risk to ME of vaccine injury or death, against protecting another human being against COVID-19 severe disease or death? If you decide that the risk to me from the vaccine is less important than the risk to others from COVID-19 illness, how will I (or my family) be compensated for injury or death? What liability does Queensland Health accept when vaccination is mandated to maintain employment?

I will finish by acknowledging your position as Chief Executive, and assure you that my comments are made with respect for your knowledge and expertise in research and public health as well as your highly regarded expertise in the management of COVID-19 planning, preparedness and response. I do have great concern that globally, the science behind these decisions is being hindered by censorship and driven by stakeholders. Overall, it is clear to me, that my personal safety is being jeopardised for the greater good without much evidence that it will actually prevent harm to others. Regardless of whether Queensland Health believes that coercion is not in play here, I feel that the choice to vaccinate cannot be made freely when losing my livelihood is at stake.

Please provide the evidence that has been used to determine that COVID-19 vaccines are safe, effective and necessary, as well as clarify responsibilities of Queensland Health should an injury occur. Furthermore, please review my request to remain unvaccinated following the denial of my exemption. I wish to return to work.

The decision

  1. [15]
    In the decision, Professor Scott stated that:
  • the COVID-19 virus presents significant risk to the health and safety of healthcare workers and support staff, their families and the patients under the Health Service's care and evidence from around the world demonstrates not only the safety of the COVID19 vaccine, but the very high-level efficacy;
  • vaccination reduces the risk of hospitalisation and death, when compared to the unvaccinated, and it also means that staff are much less likely to transmit the virus to others;
  • in recognition of the risks posed by the virus, as well as workplace health and safety obligations incumbent upon both the organisation and employees, the Department 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, and the strategy is implemented by the Directive and the Human Resources Policy B70 Employee COVID-19 Vaccination Requirements; and
  • prospective and existing Health Service employees subject to these requirements have been identified based on the following risk profile:
  1. they are working in an area with suspected or confirmed COVID-19 patients or an area that a COVID-19 patient may enter;
  1. 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 COVID19 patient may enter;
  1. they are unable to observe public health requirements (for example, physical distancing, working in areas of high population density, rapid donning/doffing of personal protective equipment in emergent situations); and
  1. they have the potential to expose patients, clients, other staff or the broader community to the virus (for example, occupying shared spaces such as lifts, cafeterias and car parks, with people working with suspected or actual COVID-19 patients).
  1. [16]
    By way of conclusion, Professor Scott stated:

COVID-19 vaccines are not experimental. They have undergone all of the usual assessments including peer review and publication of phase one, two and three clinical trials and review by multiple licensing bodies including the Therapeutic Goods Administration. The vaccines are now in routine clinical use to prevent disease. They are not used to treat disease.

You also raise concern regarding providing informed consent to the COVID-19 vaccination.

Free and informed consent to medical treatment is an essential tenet of healthcare. However, as the Directive requires vaccination as a condition of employment, this is materially and irreconcilably different from a situation involving coercive medical treatment or circumstances otherwise giving rise to an inability to provide free and informed consent to medical treatment.

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.

While I acknowledge your concerns, I do not accept that Directive deprives you of free and informed consent to the COVID-19 vaccination or that these concerns constitute another exceptional circumstance.

Ms Grundkvist's submissions

  1. [17]
    In her principal written submissions, Ms Grundkvist submits that the vaccine poses a risk of serious adverse effects or death in that:
  • the long-term safety of messenger ribonucleic acid ('mRNA') vaccines is largely unknown;
  • the database of adverse event notifications by the Therapeutic Goods Administration ('TGA') shows a definite safety signal for COVID-19 vaccinations as a group and measured against the same reporting system for other vaccines, the safety signal is obvious in that there have been 12 times the number of deaths reported from COVID vaccines alone in the one year they have been in use in Australia as from all of the vaccines administered in Australia in the last 50 years put together;
  • the vaccine product information and consent forms acknowledge that serious adverse effects and death are possible due to COVID-19 vaccination, as well as possible vaccine failure and the ability to still transmit the infection to others;
  • the Department has not acknowledged the risk of COVID-19 vaccination and continues to claim it is safe; and
  • the Director-General of the Department and the Chief Executive of the Health Service have not, despite her request, provided clinical evidence to support the claim that COVID-19 vaccination is safe.
  1. [18]
    Ms Grundkvist also submitted that the risk to her as an individual or of hospitalisation or death from COVID-19 is minimal without vaccination. In this regard, Ms Grundkvist submits:

Protecting me as an individual, for my benefit alone, should be a choice for me as an individual and not a reason to mandate vaccination for employment purposes. Death rates are not linear (for example, 0.02% for me, 5% for an 80-year-old female) and therefore, an individual's risk of COVID-19 mortality cannot be extrapolated from population averages. The directive does not recognise this concept, and applies evidence from the population as a whole to individuals, without taking into account the difference in risk profiles. I can provide evidence that supports the fact that my personal COVID-19 risk is minimal, but feel it is less relevant to the case than evidence of transmission, considering the directive is in place to protect patients and other employees.

The Department's submissions

  1. [19]
    The Department relevantly submitted that:
  • it was evident from the decision that Ms Grundkvist's concerns about the safety and efficacy of COVID-19 vaccines were considered by Professor Scott;
  • as was held by Industrial Commissioner Hartigan in Tilley v State of Queensland (Queensland Health),[3] vaccine hesitancy does not result in requiring compliance with the Directive being unreasonable having regard to the risk posed by COVID19 as outlined in cl 6 of the Directive;
  • the matters raised by Ms Grundkvist evinced her personal preference not to receive a vaccine and it was reasonable for Professor Scott to determine those matters did not demonstrate the existence of any exceptional circumstances which would justify the approval of an exemption in that exemptions are considered in accordance with the Department's obligations and will only be approved in exceptional circumstances having regard to the public risk posed by COVID19; and
  • it was reasonably open for Professor Scott to determine that Ms Grundkvist's concerns regarding risk, safety and efficacy of COVID-19 vaccines did not warrant an exemption on the grounds of another exceptional circumstance.[4]
  1. [20]
    In her principal written submissions, Ms Grundkvist provided web addresses for various webpages that Ms Grundkvist stated provided evidence in support of her submissions. Ms Grundkvist did not annex to her submissions any screenshots of those webpages. I gave Ms Grundkvist the opportunity to file and serve those screenshots together with any further written submissions she wished to make. I also gave the Department the opportunity to make any further submissions it wished to make in relation to any such screenshots served on it.
  1. [21]
    Ms Grundkvist filed and served certain screenshots of webpages and made additional written submissions. The Department made no further written submissions.

The decision was fair and reasonable

  1. [22]
    In my view, an exceptional circumstance of the kind contemplated in the Directive is one concerning the employee as an individual. In Colebourne v State of Queensland,[5] I relevantly stated in respect of a similar exemption regime under the equivalent mandatory COVID-19 vaccination direction given in the Queensland Police Service:

[53] Therefore, it was clear from Ms Colebourne's application for exemption that she was applying for an exemption, not on medical or genuine religious grounds (as referred to in paragraphs 8 or 9a) of Direction No. 12) but '… due to other exceptional circumstances' as contemplated in paragraph 9b) of that document.

[54] It seems to me that construed in context, for an exemption of the kind referred to in paragraphs 8 or 9 of Direction No. 12 to be granted, the grounds for the exemption must relate to the employee as an individual. This can be seen in respect of the exemptions that may be granted on medical or religious grounds. Similarly, in my view, the '… other exceptional circumstances' basis for an exemption concern circumstances that affect or concern the individual employee as opposed to general circumstances which may concern all or a large group of the members of the Service.

  1. [23]
    Ms Grundkvist's submissions must, in my view, be considered by having regard to whether the issues to which she refers give rise to an exceptional circumstance of this kind. The basis for such an exemption must concern circumstances that affect or concern her as an individual employee as opposed to a circumstance or circumstances which affect or concern all or a large group of the employees of the Department.
  1. [24]
    In her additional written submissions, Ms Grundkvist submits that:
  • the evidence she has provided, and her submissions about that evidence, demonstrate that the COVID-19 vaccines carry a risk to her of harm or death, without significant risk of severe illness from COVID-19 to herself specifically and that the vaccines do not prevent transmission to others which constitutes an exceptional circumstance, that can be avoided by not accepting vaccination; and
  • it is not necessary to have a medical contraindication to be at risk of harm from the vaccine, therefore an exceptional circumstance cannot be disallowed due to lack thereof, and the decision to deny her exemption application was unreasonable.
  1. [25]
    In her additional written submissions, the particular issues raised by Ms Grundkvist are:
  • the approved COVID-19 vaccines risk harm to her or death to her;
  • her own age and current state of health means her vaccination is not required;
  • the approved COVID-19 vaccines do not prevent transmission of COVID-19; and
  • the Health Service will not accept responsibility for any injury she suffers from such vaccination.
  1. [26]
    I will consider these issues.

The approved COVID-19 vaccines risk harm or death to Ms Grundkvist

  1. [27]
    In support of this issue, Ms Grundkvist attached a screenshot from a webpage of the website of the TGA which she claimed is a webpage displaying the Australian Public Assessment Report for prescription medicines ('AusPAR') submission to the TGA in respect of a product named 'Comirnaty.' That product is a COVID-19 vaccine sponsored by Pfzier Australia Pty Ltd which contains the active ingredient BNT162b2 (mRNA) ('the first screenshot').
  1. [28]
    Ms Grundkvist submits that the first screenshot shows that vaccine:

[I]s subject to the Black Triangle Scheme whereby safety reporting is encouraged in order to "build up the full picture of a medicine's safety profile" indicating the full safety profile is not completely known. The provisional approval "has been made on the basis of short term efficacy and safety data". The TGA notes multiple limitations, including that vaccine efficacy against viral transmission has not been addressed in the application and missing information includes longterm safety data. The TGA notes that Vaccine Associated Enhanced Disease is also an important potential risk. An unknown long-term safety profile on a background of limited evidence for efficacy of transmission, presents an extenuating circumstance precluding me from complying with the directive.[6]

  1. [29]
    The first screenshot relevantly states:
  • in the second footnote, that:
  1. a Black Triangle Scheme is a simple means for practitioners and patients to identify certain types of new prescription medicines, including those being used in new ways and to encourage the reporting of adverse events associated with their use; and
  1. the Black Triangle does not denote that there are known safety problems, just that the TGA is encouraging adverse event reporting to help it build up the full picture of a medicine's safety profile; and
  • under the heading of 'Data limitations' that:

In addition to the unknown longer term safety and unknown duration of vaccine protection, there are other limitations with the submitted data. The following questions have not yet been addressed:

  • Vaccine efficiency against symptomatic infection and viral transmission.

  1. [30]
    Having regard to the above, the fact that the first screenshot notes that this vaccine is in the Black Triangle Scheme, having regard to the purpose of the Black Triangle Scheme, does not indicate that there are known safety problems with the vaccine.
  1. [31]
    Further, despite the submission referring to data limitations in respect of matters that have not been addressed by the sponsor, the first screenshot indicates that the vaccine has been given approval for therapeutic use to prevent coronavirus disease in individuals 16 years of age and older. There is no dispute that the vaccine the subject of the submission referred to in the first webpage has been approved by the TGA for use in Australia.
  1. [32]
    It is reasonable to infer that there will always be risks faced by persons who take new prescription medicines or where such medicines are used in new ways. In respect of the vaccine the subject of the first screenshot, such an inference is clear from its contents, including the risk management plan to which reference is made. It is self-evident that the relevant role of the TGA is to assess such risks in respect of the use of prescribed medicines in Australia. Despite such identified risks, the TGA has approved the vaccine, the subject of the first screenshot, for use in Australia.
  1. [33]
    In that respect, the risk faced by Ms Grundkvist of harm or death - given there is no evidence of any specific medical condition suffered by Ms Grundkvist which significantly increases such risk to her - means that any risk of harm or death she faces from receiving the vaccine the subject of the first screenshot is no greater than any other employee within the Department.
  1. [34]
    The facts raised in this issue do not give rise to an exceptional circumstance concerning Ms Grundkvist.
  1. [35]
    Ms Grundkvist also referred to two other screenshots taken from the TGA website, in respect of which she submits:
  1. [3]
    Using the Database for Adverse Events Notifications (DAEN), the TGA has received over 100,000 reports of adverse events and 760 deaths. Post marketing surveillance has uncovered more safety issues than originally outlined in the AusPAR application, indicating that not all harms were known at the time of provisional approval. Some of these are now recognised by the product information and consent forms for vaccination, including serious conditions such as myocarditis. These documents also recognise that breakthrough infections are possible. Furthermore, QH has published a document titled "Guidance on myocarditis and pericarditis after mRNA vaccines", further acknowledging the potential risk. Harm to me, or death, would prevent me from providing for my three young children and cause financial difficulty, resulting in the extenuating circumstance that prevents me from complying with the directive. This should be accepted as an exceptional circumstance.[7]
  1. [36]
    The screenshot referred to by Ms Grundkvist concerns the TGA's Database of Adverse Event Notifications - medicines ('the second screenshot'). The face of the second screenshot suggests it is the result of a function allowing research to be undertaken of that database. It seems that the user of the database can enter the parameters of the search, in terms of the medicines searched and the dates over which the search is undertaken. The second screenshot displayed information in respect of '… 4 medicines selected' over the period of 1 January 1971 to 8 February 2022. The second screenshot provides that in respect of that search, the number of cases where death was a reported outcome was 760. On the face of the second screenshot, there is no clarity as to the identity of the 4 medicines selected, although in her principal written submissions, Ms Grundkvist seems to say that the 4 medicines are the COVID-19 vaccinations. Further, the second screenshot relevantly provides:

Important information! The TGA uses adverse event reports to identify when a safety issue may be present.

  • An adverse event report does not mean that the medicine is the cause of the adverse event.
  1. [37]
    It is not clear to me, on the face of the second screenshot, that there have been 760 deaths associated with persons being administered a COVID-19 vaccine. Further, as is made clear on the second screenshot, an adverse event report does not mean that a medicine (the subject of the database search) is the cause of the adverse event.
  1. [38]
    In any event, assuming the second screenshot proves what Ms Grundkvist says it does (which seems to be that there have been a greater number of deaths from persons receiving a COVID-19 vaccination compared to other vaccines), the second screenshot is not evidence that demonstrates that if Ms Grundkvist receives the required doses of a COVID-19 vaccine, she is at risk of harm or death beyond that of any other employee within the Department.
  1. [39]
    Because Ms Grundkvist faces the same risks as any other employee in the Department who receives a COVID-19 vaccine and who does not have a recognised medical contraindication, then that does not mean that there is an exceptional circumstance concerning Ms Grundkvist such that she should be exempt from the application of the Directive.
  1. [40]
    The third screenshot referred to by Ms Grundkvist comes from the TGA website regarding the COVID-19 vaccine the subject of the first screenshot ('the third screenshot'). It sets out adverse effects from that vaccine including myocarditis. However, once again, in the absence of any evidence of any specific medical condition suffered by Ms Grundkvist which significantly increases the risk of harm or death to her by receiving the vaccine the subject of the third screenshot, she is in no different position, in respect of risk, to any other employee in the Department in the same circumstances.

Ms Grundkvist's age and current state of health means her vaccination is not required

  1. [41]
    In her additional written submissions, Ms Grundkvist submits:
  1. [4]
    My personal demographic and resulting risk assessment also presents an extenuating circumstance, supporting my case that I qualify for an exemption based on other exceptional circumstances. I am a healthy, 40-year old female without any comorbidities, and cannot be lumped into a population analysis of risk (considered the usual circumstances), as the risk is not linear for all age groups, genders and co-morbidities. The global death rate of 1.38% is reduced to approximately 0.02% for me personally because age and comorbidities are the biggest determinants of risk stratification for COVID-19.[8]
  1. [42]
    The Directive relevantly applies to all Health Service employees who are employed to work in a hospital or other facility where clinical care or support is provided.
  1. [43]
    No doubt, there are, at least, many hundreds of employees who fall within the same 'personal demographic' as Ms Grundkvist. Ms Grundkvist is in no different position, in respect of risk, to such other employees within the Department. That does not give rise to an exceptional circumstance affecting Ms Grundkvist as an individual.

The approved COVID-19 vaccines do not prevent transmission of COVID-19

  1. [44]
    In her additional written submissions, Ms Grundkvist submits:
  1. [5]
    Not being able to take the risk of vaccine harm further presents as an exceptional circumstance, because the benefit to others is not certain and therefore bears little weight on the need for accepting the risk. Vaccines have not been shown to reduce the transmission of the virus to others, clearly evident in the real-world by viral transmission between vaccinated persons, especially clear from over a thousand outbreaks in fully vaccinated residential aged care facilities, and also in studies such as the Lancet Study in community transmission.
  1. [6]
    This risk of vaccine harm need not be necessitated, by putting in place strategies in the workplace to ensure workers do not present a risk to others when infected. The QH policy on managing health care workers exposed to or with COVID-19, can be implemented for unvaccinated workers too. Simply staying home when infectious and not returning to work until a negative test is obtained removes the need for discrimination of unvaccinated people in the workforce, since all persons can transmit the virus when infectious, regardless of vaccination status. This is a practical solution that would stop the need for workers to be subjected to unnecessary risks of harm from the vaccine, and ensure the reduction of the public health risk of COVID-19, like directive 12/21 has set out to achieve. [9]
  1. [45]
    The submissions made in these paragraphs are not relevant to Ms Grundkvist's claim that she should be exempt from the operation of the Directive.
  1. [46]
    The submissions are an attack on the merits of the implementation of the Directive by the Chief Executive as opposed to its application to Ms Grundkvist or whether she should be exempt from its operation due to another exceptional circumstance. In essence, the submissions go to a claim that the Directive is not warranted.
  1. [47]
    The submissions do not go to a circumstance affecting Ms Grundkvist as an individual such that there is an exceptional circumstance affecting her that may reasonably exempt her from the operation of the Directive.

The Health Service will not accept responsibility for any injury Ms Grundkvist suffers from such vaccination

  1. [48]
    In her additional written submissions, Ms Grundkvist submits:

Not being able to accept the risk of harm or death from the vaccine due to the extenuating circumstances described above must therefore be considered an exceptional circumstance that has led to my non-compliance with the directive. QH has not done their duty to ensure that the risk/benefit analysis is in favour of vaccination for me as an individual, and shows that the decision to deny my exemption is unreasonable.[10]

  1. [49]
    These matters do not give rise to any circumstances affecting Ms Grundkvist as an individual such that there is an exceptional circumstance affecting her. Viewed objectively, it is another argument against the necessity of the Directive.

Other matters

  1. [50]
    Ms Grundkvist submitted that the Director-General of the Department and the Chief Executive of the Health Service have not, despite her request, provided clinical evidence to support the claim that COVID-19 vaccination is safe. This is, in my view, another argument against the necessity or validity of the Directive as opposed to being a matter giving rise to an exceptional circumstance concerning Ms Grundkvist that may reasonably mean she should be exempt from the operation of the Directive.
  1. [51]
    In Professor Scott's decision, as set out above, she (Professor Scott) considered each of the matters to which Ms Grundkvist referred in her (Ms Grundkvist's) letter dated 30 November 2021. The matters to which Ms Grundkvist referred in that letter are, in essence, the same matters Ms Grundkvist has raised in her submissions to the Commission.

Conclusion

  1. [52]
    For the reasons I have given, the review of Ms Farry's decision was fair and reasonable.
  1. [53]
    The decision reviewing Ms Farry's decision is confirmed.

Order

  1. [54]
    I make the following order:

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

Footnotes

[1] Industrial Relations Act 2016 s 562B(3).

[2] Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203; (2020) 305 IR 311, [4]-[7].

[3] [2022] QIRC 002, [39]-[42].

[4] The Department's submissions filed on 4 February 2022, para. 23.

[5] [2022] QIRC 016.

[6] Footnotes omitted.

[7] Footnotes omitted.

[8] Footnotes omitted.

[9] Footnotes omitted.

[10] Footnotes omitted.

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Editorial Notes

  • Published Case Name:

    Grundkvist v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Grundkvist v State of Queensland (Queensland Health)

  • MNC:

    [2022] QIRC 135

  • Court:

    QIRC

  • Judge(s):

    Merrell DP

  • Date:

    08 Apr 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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