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Donnelly v State of Queensland (Queensland Health)[2022] QIRC 149

Donnelly v State of Queensland (Queensland Health)[2022] QIRC 149

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Donnelly v State of Queensland (Queensland Health) [2022] QIRC 149

PARTIES:

Donnelly, Richard

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO.:

PSA/2022/277

PROCEEDING:

Public Service Appeal – Fair Treatment Decision

DELIVERED ON:

29 April 2022

MEMBER:

Power IC

HEARD AT:

On the papers

ORDER:

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

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – Public Service Appeal – where the Health Employment Directive No. 12/21- Employee COVID-19 vaccination requirements required employees who are employed to work in a hospital or other facility where clinical care or support is provided  must have received at least a first dose of a COVID-19 vaccine by 30 September 2021 and must have received the second dose of a COVID-19 vaccine by 31 October 2021 – appellant sought an exemption – exemption was refused – risk posed to the  health and wellbeing of patients, colleagues and other stakeholders – decision to deny exemption fair and reasonable

LEGISLATION:

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

Human Rights Act 2019 (Qld), s 17

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

Public Service Act 2008 (Qld), s 194

Work Health and Safety Act 2011 (Qld)

CASES:

Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245

Colebourne v State of Queensland (Queensland Police Service) (No. 2) [2022] QIRC 016.

Elliott v State of Queensland (Queensland Health) [2022] QIRC 139

Gilmour v Waddell & Ors [2019] QSC 170

Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018)

Graffunder v State of Queensland (Queensland Health) [2022] QIRC 76

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

Higgins v State of Queensland (Queensland Health) [2022] QIRC 030

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

Reasons for Decision

Introduction

  1. [1]
    Mr Richard Donnelly ('the Appellant') is employed by the State of Queensland (Queensland Health) ('the Respondent') as a System Integration Reporting Analyst, System Integration Services at Townsville University Hospital ('TUH') within Townsville Hospital and Health Service ('THHS') since 15 January 2001.
  1. [2]
    On 23 September 2021, the Appellant submitted an 'Employee COVID-19 vaccine exemption application form' (the 'exemption application'), seeking for an exemption from obtaining any COVID-19 vaccination based on other exceptional circumstances in accordance with the Health Employment Directive 12/21 regarding employee COVID-19 vaccination requirements ('the Directive'). The Appellant stated in the exemption application that he was requesting an exemption due to long held family beliefs against vaccinations and also suggested the direction to receive a COVID-19 vaccine to be unlawful without freely given informed consent.
  1. [3]
    By letter dated 17 December 2021, Ms Sharon Kelly, Interim Executive Director Human Resources and Engagement, THHS, advised the Appellant that his exemption application was refused. The Appellant was directed to comply with the Directive to receive the required dose and provide confirmation of compliance within seven days from receipt of the letter.
  1. [4]
    By letter dated 23 December 2021, the Appellant requested an internal review of the decision to refuse the Appellant's exemption application. On 4 January 2022, the Appellant provided the Respondent with a document titled 'The Pfizer Inoculations for COVID-19 - More Harm Than Good' in support of his request for the internal review.
  1. [5]
    By letter dated 25 February 2022 and received by the Appellant on the same date, Ms Ann Marie Mallett, Acting Chief Operating Officer, THHS, confirmed the decision to refuse the Appellant's exemption application.
  1. [6]
    On 16 February 2022, the Appellant filed an appeal notice, appealing against the decision of Ms Mallett dated 25 February 2022. Whilst the Appellant indicates in the appeal notice that he is appealing against a decision made under a directive, this Commission has recently held on several occasions, and I agree, that the Directive does not allow for employees to appeal.[1] The nature of the decision appealed against is more appropriately characterised as a fair treatment decision, a decision which the Appellant considers unfair and unreasonable. Accordingly, I will proceed to determine this appeal as a fair treatment appeal, pursuant to s 194(1)(eb) of the Public Service Act 2008 (Qld).

Appeal principles

  1. [7]
    The appeal must be decided by reviewing the decision appealed against.[2] Because the word 'review' has no settled meaning, it must take its meaning from the context in which it appears.[3] An appeal under ch 11 pt 6 div 4 of the Industrial Relations Act 2016 (Qld) ('the IR Act') is not by way of rehearing,[4] but involves a review of the decision arrived at and the decision making process associated therewith.
  1. [8]
    The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.[5] The issue for determination is whether the decision of Ms Mallett dated 25 February 2022 to confirm the decision to refuse the Appellant's exemption application was fair and reasonable. Findings which are reasonably open to the decision maker are not expected to be disturbed on appeal.

What decisions can the Industrial Commissioner make?

  1. [9]
    In deciding this appeal, s 562C of the IR Act provides that the Industrial Commissioner may:
  1. (a)
    confirm the decision appealed against; or
  1. (b)
    set the decision aside and substitute another decision; or
  1. (c)
    set the decision aside and return the issue to the decision maker with a copy of the decision on appeal and any directions considered appropriate.

The Directive

  1. [10]
    On 11 September 2021, pursuant to s 51A of the Hospital and Health Boards Act 2011 (Qld) ('HHB Act'), the Chief Executive of the Respondent issued the Directive.
  1. [11]
    Clause 1 of the Directive provides that compliance with the Directive is mandatory. Clause 4 of the Directive provides that the Directive applies to all health service employees and prospective employees employed under the HHB Act.
  1. [12]
    Clause 8.1 of the Directive provides:

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 HED.

  1. [13]
    Clause 10.2 of the Directive provides an exemption application will be considered where the employee has a recognised medical contraindication, the employee has a genuinely held religious belief or where another exceptional circumstance exists.

Grounds of Appeal

  1. [14]
    The Appellant provided extensive submissions in the appeal notice regarding his concerns previously raised with the Respondent with respect to the Directive and receiving a COVID-19 vaccination. As I understand it, the Appellant appeals the decision to confirm the refusal of his exemption application for the following reasons:
  1. (a)
    the exemption application was refused with no explanation;
  1. (b)
    the responses from the Respondent were vague, short and dismissive;
  1. (c)
    THHS have not provided any risk assessment to support the Directive;
  1. (d)
    THHS have not provided any legislation to support the violation of human rights and other legislation including the Australian Constitution, the Nuremberg Code, and the International Covenant on Civil and Political Rights;
  1. (e)
    THHS have not responded to the Appellant's explanation of current court proceedings regarding the legality of vaccination mandates and subsequent request for temporary delay in applying the Directive;
  1. (f)
    THHS have failed to respond to the Appellant's request for care and compensation if the Appellant was to be injured or killed by the COVID-19 vaccine;
  1. (g)
    THHS have failed to respond to the Appellant's statement advising that threatening the Appellant with disciplinary action by not receiving a COVID-19 vaccination is coercion;
  1. (h)
    THHS have stated that they are 'satisfied' that the vaccine mandate does not breach human rights, however, provides no justification or legal grounds on which to draw such a conclusion;
  1. (i)
    THHS have failed to respond to the Appellant's concerns that they are changing his employee conditions without consultation, negotiation, and agreement; and
  1. (j)
    THHS have failed to provide justification for demanding such a huge violation of bodily integrity and at no point has the Appellant been provided with any references as to how or why the Directive is being created and applied.

Submissions

  1. [15]
    The Commission issued a Directions Order calling for submissions from both parties following receipt of the appeal notice. The submissions are summarised below.

Respondent's submissions

  1. [16]
    The Respondent submits that the decision to confirm the refusal of the Appellant's exemption application was fair and reasonable. The Respondent submits, in summary, that:
  1. (a)
    Ms Mallett properly considered the Appellant's exemption application and submissions and weighed these against the objects and requirements of the Directive in confirming the decision to refuse the Appellant's exemption request;
  1. (b)
    the Appellant's human rights were properly considered and taken into account and Ms Mallett determined any limitation to the Appellant's 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';
  1. (c)
    the Respondent is not required to accept the Appellant's view that his human rights should outweigh the other factors to be considered by Ms Mallett, THHS and the Respondent;
  1. (d)
    the Appellant's concerns regarding informed consent were taken into account. Ms Mallett advised that the Directive requires vaccination as a condition of employment and is materially different from a situation involving coercive medical treatment or circumstances giving rise to an inability to provide free and informed consent to medical treatment;
  1. (e)
    the Appellant is not obliged to work for the Respondent. However, while he is an employee, he is obliged to comply with reasonable and lawful directions issued to him;
  1. (f)
    exemption applications are considered on an individual basis and weighed against the Respondent's health and safety obligations and will only be approved in exceptional circumstances having regard to the public health risk posed by COVID-19. The Appellant did not seek an exemption on the basis of or provide any evidence of a medical contraindication to him being able to be safely receive a COVID-19 vaccine;
  1. (g)
    the exemption application makes clear that vaccine hesitancy and conscientious objection are not, on their own, exceptional circumstances. Vaccine hesitancy or personal preference not to receive a COVID-19 vaccine is not an exceptional circumstance and it does not result in requiring compliance with the Directive being unreasonable, having regard to the risk posed by COVID-19 as outlined at cl 6 of the Directive;
  1. (h)
    the Appellant did not provide any evidence that his circumstances as an individual were exceptional;
  1. (i)
    while the Appellant may genuinely have reservations about receiving the COVID-19 vaccination, vaccine hesitancy and conscientious objection, by themselves, are not considered exceptional circumstances warranting an exemption. It is not incumbent on the Respondent to accept the Appellant's views; and
  1. (j)
    whilst it is acknowledged the Appellant had been performing his duties from home on working from home agreements, these arrangements were agreed on a temporary basis and were not intended to become a long-term arrangement nor is it a solution to the Appellant's ongoing refusal to comply with the Directive.
  1. [17]
    With respect to risk assessments, the Respondent submits the following:

Having regard to the number of positions, various locations, and various working arrangements of the Department's employees, it is impracticable for the Department to conduct a personalised risk assessment for each affected worker. The Department undertook risk assessments for the whole workforce in satisfaction of their obligations under the Work Health and Safety Regulation 2011 (in particular, ss 34 and 36(2)). Before and after HED 12/21 was issued, the Director-General of the Department received regular briefings from the Chief Health Officer regarding the risks of COVID-19. This included a specific briefing on employees identified as working in high-risk roles and considered advice regarding COVID-19 transmission events in NSW health facilities and linked to health care workers. From these briefings, the Director-General was satisfied there was a demonstrable level of risk associated with the work performed by employees to which HED 12/21 applied.

  1. [18]
    The Respondent submits the nature of the Appellant's role presents a high degree of risk to himself, other THHS employees and patients with respect to COVID-19 transmission, highlighting the following in particular:

a) Mr Donnelly is a System Integration Reporting Analyst, working at TUH. Hospitals and other facilities at which clinical services are provided have been covered by HED 12/21 for the safety of Mr Donnelly, his colleagues, patients, and the broader community.

b)  as part of his role, Mr Donnelly is required to physically attend TUH to undertake his duties. While he is currently working from home, this cannot continue on a permanent basis, noting Mr Donnelly has sought permanent exemption from requirement to comply with HED 12/21; and

c)  Mr Donnelly's duties require him to interact closely with a range of co-workers. This increases the risk of transmission of COVID-19.

  1. [19]
    The Respondent highlights that, prior to the introduction of the Directive, 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. The Respondent submits that the consultation included dedicated meetings with registered unions representing employees employed within the Respondent and appropriate risk assessments was also conducted prior to the implementation of the Directive. The Respondent submits that the obligation to consult does not impose an obligation to consult with employees on an individual basis, particularly for a workforce the size of the Respondent and THHS.
  1. [20]
    The Respondent further submits that the Directive is based on the most senior medical officer, the Chief Health Officer's directions regarding workers in healthcare settings and hospital entries and that the Directive is both lawful, being issued under s 51A of the HHB Act, and reasonable.[6] The Respondent made the following submissions with respect to the importance of vaccination against COVID-19:

  1. The importance of the mandatory vaccination requirements is articulated at clause 6 of HED 12/21. High vaccination coverage among workers in settings with the potential for exposure to COVID-19 is a key determinant to the health outcomes for the Queensland community and health care delivery across the State. Further, limiting transmission within the workplace through COVID-19 vaccination will also reduce the likelihood of workplace outbreaks and staff shortages.
  1. Vaccination has proven to be successful in preparing the State for outbreaks of COVID-19, including the most recent Omicron outbreak. Despite the surge in cases, rates of severe illness, hospitalisations and deaths were well below what modelling had predicted and the health system was not overwhelmed. The Chief Health Officer attributes this to the high vaccination coverage, noting that over 90% of people in Queensland are fully vaccinated.
  1. The Department's data indicates that people who are unvaccinated are 5.4 times more likely to end up in the ICU compared to people who have had two or more doses of a COVID-19 vaccine. Vaccination also protects against complications such as 'long COVID', which for some sufferers can have significant lasting effects. High levels of vaccination also reduces the spread of infection through protection against symptomatic infection and by reducing a person's infectious period. Vaccination is therefore integral to reducing the impact of a COVID-19 outbreak in workplaces.
  1. Unvaccinated workers in a health care setting represent a significant and unacceptable risk to the health of other workers and patients. The mitigation strategy adopted by the Department of mandatory vaccination for certain categories of employees, including those employed to work in a hospital is a reasonable and proportionate response to the pandemic, and continues to be important as different variants emerge and community transmission is high.
  1. High levels of vaccination coverage across our community also reduces the spread of infection through protection against symptomatic infection and by reducing a person's infectious period. Vaccination helps in protecting the unvaccinated as well as the vaccinated.

Appellant's submissions

  1. [21]
    The substance of the Appellant's submissions largely relates to the validity and lawfulness of the Directive. The Appellant refers to a newspaper article and highlights that a case is currently before the Supreme Court of Queensland regarding the 'same subject matter' and submits that as the decision of the Supreme Court would be a binding authority on this Commission, that it is inappropriate and undesirable for this matter to be determined pending the determination of the Supreme Court case.
  1. [22]
    The Appellant submits that none of the Respondent's contentions in question have been the subject of admissible evidence and objects to evidence being led by way of inclusion in a submission.
  1. [23]
    The Appellant appears to have addressed the Respondent's submissions in an attachment to the submissions titled 'Contentious Issues (Important issues to consider for review)'. In summary, the Appellant submits that:
  1. (a)
    the Appellant had requested from the Respondent on several occasions to provide legislation under which they were authorised to demand an employee to accept a medical procedure to remain employed. The Respondent had only advised that they are relying on the HHB Act once this appeal was lodged at the Commission;
  1. (b)
    the Respondent's continuous claim that the COVID-19 vaccine is 'safe and effective' is not true, having regard to the recent COVID-19 inquiry, the Australian government's compensation for known injury from the COVID-19 vaccine, Pfizer clinical trial outcomes, publicly available data from other countries and peer-reviewed reports;
  1. (c)
    the risk assessment as outlined by the Respondent has not been provided;
  1. (d)
    the Appellant's primary concern is the lawfulness of the Directive. Family beliefs are secondary concerns;
  1. (e)
    to state that a decision is fair and reasonable is 'ridiculous' when the Respondent has refused to negotiate any of the Appellant's concerns, provide any assurance of safety or clear explanation of the legislation upon which is being relied on;
  1. (f)
    the Chief Health Officer being the most senior medical officer is irrelevant when establishing lawfulness;
  1. (g)
    there is no proof that unvaccinated people are of any risk to anyone else, and recent studies have concluded that both vaccinated and unvaccinated people are likely to contract and transmit COVID-19;
  1. (h)
    the Respondent's submissions regarding limitations to the Appellant's human rights has no factual basis, is vague and ambiguous;
  1. (i)
    the Directive mandates the receipt of the COVID-19 vaccination, removing the right of the individual to only receive this treatment with their full, free and informed consent;
  1. (j)
    for the Respondent to disregard informed consent is 'literally criminal';
  1. (k)
    vaccine hesitancy is a side issue, which is irrelevant until the Directive is legally supported;
  1. (l)
    there is no proof that vaccination has been successful and is pure conjecture. There is, however, proof that COVID-19 vaccination has killed people, caused serious damage to people's health, and destroyed lives;
  1. (m)
    the claim that unvaccinated people are 5.4 times more likely to end up in ICU is not true and is not supported with proof. There is, however, 'plenty of data that proves that the more jabs people get, the more likely they are to contract Covid and die';
  1. (n)
    there is no proof that vaccination protects against 'long covid', symptomatic infection and reduces the infectious period and is pure conjecture;
  1. (o)
    the Appellant's role does not represent a high degree of risk being far away from patients. The Omicron variant is a very mild illness and there is the opportunity to work from home, which is fully supported by the Appellant's Team Leader if there is an outbreak; and
  1. (p)
    the Appellant have never been required to physically attend anything on site and does not interact closely with any co-workers.

Consideration

  1. [24]
    Consideration of an appeal of this kind requires a review of the decision by Ms Mallett to determine if the refusal of the Appellant's exemption application was fair and reasonable in the circumstances.
  1. [25]
    The Appellant applied for an exemption from compliance with the Directive requirement to receive COVID-19 vaccination on the basis of 'other exceptional circumstances'. The Appellant's submissions primarily relate to issues regarding the legality of the Directive rather than the decision to deny the application for an exemption. The only power the Commission has in this appeal is to make an order pursuant to s 562C(1)(a) or (c) of the IR Act, which is 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. The other issues raised by the Appellant are beyond the scope of this appeal.[7]
  1. [26]
    The employee COVID-19 vaccine exemption application form provides that employees may seek an exemption to the vaccination requirements set out in the Directive in circumstances where the employee has a recognised medical contraindication to the COVID-19 vaccine, where the employee has refused the COVID-19 on grounds of a genuinely held religious belief or other exceptional circumstances which preclude them from meeting the COVID-19 vaccine requirements. The Appellant submits that the grounds of his appeal relate primarily to the legality of the Directive, however it appears that much of the concerns raised throughout the exemption application process relate to concerns about the efficacy and safety of the vaccine. Concerns of this nature have been characterised as vaccine hesitancy and conscientious objection, which by themselves, are not considered exceptional circumstances for the purposes of an exemption application.
  1. [27]
    Deputy President Merrell determined in Grundkvist v State of Queensland (Queensland Health)[8] that the basis of an exemption application on 'exceptional circumstances' must concern circumstances that affect or concern the appellant as an individual employee as opposed to circumstances which concern all or a large group of employees. When considering a similar exemption regime in the Queensland Police Service in Colebourne v State of Queensland (Queensland Police Service) (No. 2),[9] Deputy President Merrell stated:

It seems to be 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.[10]

  1. [28]
    The Appellant's submissions in his exemption application and his request for an internal review outline his general concerns about the safety of available COVID-19 vaccines, however there is no indication that the Appellant has a recognised medical contraindication that would give rise to exceptional circumstances.
  1. [29]
    The Appellant's submissions can be characterised generally as opposing the Directive on the basis that the Appellant does not accept that the Directive is reasonable, safe, effective or lawful. These submissions do not support the premise that there are exceptional circumstances affecting the Appellant that should have reasonably formed the basis for an exemption.
  1. [30]
    The Directive is based on the Chief Health Officer's direction regarding workers in healthcare setting and has been determined to be lawful and reasonable in a number of similar matters.[11] As determined in Slykerman v State of Queensland (Queensland Health)[12] the Directive is lawful pursuant to s 51A of the HHB Act.
  1. [31]
    The Appellant submits that the Directive is inconsistent with s 17(c) of the Human Rights Act 2019 (Qld), primarily due to the operation of s 51B of the HHB Act. I do not accept that the Directive is inconsistent with s 17(c) as the Appellant is not being subject to 'medical or scientific experimentation or treatment without the person's full, free and informed consent'. The decision to deny the Appellant's exemption application does not itself compel a person to be vaccinated, rather it imposes employment consequences upon employees who are not vaccinated unless certain extenuating circumstances apply. The decision of Ms Kelly stated:

Free and informed consent to medical treatment is an essential tenet of healthcare. However, as the Directive and Policy require vaccination as a condition of employment, that 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.

  1. [32]
    Ms Kelly reasonably demonstrated consideration of the Appellant's concerns regarding the impact on his human rights, stating:

Queensland Health's position is that the impacts of the decision upon human rights, to the extent that these are impacted, are reasonably justified. The purpose of the requirement to be vaccinated in the Directive and Policy include protecting staff and patients from infection with COVID-19 and the maintenance of a proper and efficient health system in a time of a global pandemic. It should be noted that there is no other reasonably practicable, effective and less restrictive way, to achieve this purpose.

  1. [33]
    Ms Mallett advised the Appellant that the decision to deny his application for an exemption had been confirmed and considered the human rights implications of the decision. The determination that the requirements of the Directive do not involve coercive medical treatment was, in my view, reasonable on the basis that it is ultimately a decision for the Appellant whether he chooses to comply with the requirements of the Directive regarding vaccination. A decision to not comply with those requirements will generally have employment consequences, as with any other decision to not follow a lawful and reasonable direction of an employer.
  1. [34]
    The decision demonstrated Ms Mallett's consideration of the Appellant's current working arrangements, stating:

You have requested to continue working from home and it is acknowledged that you are currently undertaking a flexible work arrangement working from home due to your vaccination status. Importantly however, you are entitled to request flexible/remote working arrangements and have such a request considered in an equitable manner for the whole work unit. I would encourage you to discuss this request with your line manager. However, under normal working arrangements you are employed in a role that requires attendance at a hospital or facility where clinical care or support is provided, and it is unlikely that you will never be required to attend the workplace.

  1. [35]
    The Appellant disputes that his role requires him to attend a hospital or facility and that he is required to interact with co-workers. The Respondent submits that the Appellant has been approved to work from home on a temporary basis only. I am satisfied that the Appellant's working from home arrangements are not permanent and as an employee of the THHS he is subject to the requirement that from 1 November 2021, no employee is permitted to work in a facility where care is provided without being fully vaccinated.
  1. [36]
    The Appellant submits that it would be inappropriate and undesirable for the present case to be determined pending the determination of a matter before the Supreme Court challenging a similar directive. There is currently no stay on the operation of the Directive relevant to this appeal, and in such circumstances the requirements of the Directive, including the exemption process, continue to operate lawfully.
  1. [37]
    The Appellant submits that none of the Respondent's contentions in question have been the subject of admissible evidence and objects to evidence being led by way of inclusion in a submission. The basis of this submission is unclear, as both the Appellant and Respondent were given an opportunity to provide written submissions and relevant material in support of their positions. In the Respondent's case, the submissions provided an opportunity to explain why the decision was fair and reasonable in their view. This appeal is simply a review of the decision by Ms Mallett based on the material that was available to her at the time of the decision.
  1. [38]
    The relevant principles in considering whether a decision is 'unreasonable' were outlined by Ryan J in Gilmour v Waddell & Ors:[13] 

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.[14]

  1. [39]
    Applying the principles outlined above, I do not consider that the decision lacks justification in the circumstances. Based on the information before me, I am satisfied that the internal review decision confirming the decision not to grant the Appellant an exemption under the Directive was fair and reasonable.
  1. [40]
    I order accordingly.

Order

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

Footnotes

[1] Higgins v State of Queensland (Queensland Health) [2022] QIRC 030, [12]; Graffunder v State of Queensland (Queensland Health) [2022] QIRC 76, [16]; Elliott v State of Queensland (Queensland Health) [2022] QIRC 139.

[2] Industrial Relations Act 2016 (Qld) s 562B(2) ('IR Act').

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

[4] Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5 as to the former, equivalent provisions in s 201 of the Public Service Act 2008 (Qld).

[5] IR Act s 562B(3).

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

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

[8] [2022] QIRC 135.

[9] [2022] QIRC 016.

[10] Ibid [54].

[11] Slykerman v State of Queensland (Queensland Health) [2022] QIRC 039; Higgins v State of Queensland (Queensland Health) [2022] QIRC 030.

[12] [2022] QIRC 039.

[13] [2019] QSC 170.

[14] Ibid [207]-[209].

Close

Editorial Notes

  • Published Case Name:

    Donnelly v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Donnelly v State of Queensland (Queensland Health)

  • MNC:

    [2022] QIRC 149

  • Court:

    QIRC

  • Judge(s):

    Power IC

  • Date:

    29 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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