Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Mahon v State of Queensland (Queensland Health)[2022] QIRC 156

Mahon v State of Queensland (Queensland Health)[2022] QIRC 156

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Mahon v State of Queensland (Queensland Health) [2022] QIRC 156

PARTIES:

Mahon, Rheanna Tegan

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO.:

PSA/2022/370

PROCEEDING:

Public Service Appeal

DELIVERED ON:

10 May 2022

HEARD AT:

On the papers

MEMBER:

McLennan IC

ORDER:

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

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL – where appellant applied for an exemption to the Health Employment Directive No. 12/21 – where respondent refused appellant's exemption application – where appellant applied for internal review of refusal to grant exemption – where upon review the respondent upheld the original refusal – consideration of medical contraindication to the COVID-19 vaccination – whether exceptional circumstances exist – where decision was fair and reasonable – decision appealed against confirmed

LEGISLATION:

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

Public Service Act 2008 (Qld) s 194

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

CASES:

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

Gilmour v Waddell & Ors [2019] QSC 170

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

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

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

Tilley v State of Queensland (Queensland Health) [2022] QIRC 002

Reasons for Decision

Introduction

  1. [1]
    Mrs Rheanna Mahon (the Appellant) is employed by Queensland Health, State of Queensland (the Respondent) as a Registered Nurse at the Sunshine Coast University Hospital within the Sunshine Coast Hospital and Health Service (SCHHS).[1]
  1. [2]
    The Health Employment Directive No. 12/21 (Directive 12/21) mandates, inter alia, that particular groups of health service employees must receive the COVID-19 vaccine.[2]
  1. [3]
    Directive 12/21 became effective from 11 September 2021.[3]
  1. [4]
    Relevantly, cl 8 of Directive 12/21 provides the following:

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

  1. a.
    have received at least the first dose of a COVID-19 vaccine by 30 September 2021; and
  1. b.
    have received the second dose of a COVID-19 vaccine by 31 October 2021.

An existing employee must provide to their line manager or upload into the designated system:

  1. 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.
  1. 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.

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. [5]
    The Respondent categorised Mrs Mahon's role as falling within "Group 2" under cl 7.1 of Directive 12/21 which covers employees who work in a hospital or other facility where clinical care or support is required.[4]
  1. [6]
    On 7 October 2021, Mrs Mahon applied for an exemption on the basis of "a recognised medical contraindication to the COVID-19 vaccine" and because of "other exceptional circumstances" under cl 10.2 of Directive 12/21.[5]
  1. [7]
    On 3 November 2021, Mrs Mahon provided the Respondent with a Medical Certificate dated 27 October 2021 from Dr Kathryn Dalmer certifying that Mrs Mahon "is currently 13/40 gestation (EDD 04/05/2022)" and "she has made a personal choice not to receive a COVID vaccination during her pregnancy."
  1. [8]
    On 3 February 2022, the Respondent advised Mrs Mahon of its decision to refuse her exemption application. This original refusal was conveyed in correspondence from Mr Warren Campbell, A/Director HR Operations at SCHHS.
  1. [9]
    On 18 February 2022, Mrs Mahon requested an internal review of the decision to deny her exemption application.[6]
  1. [10]
    On 28 February 2022, the Respondent advised Mrs Mahon that an internal review of the original exemption refusal had been conducted and the Respondent had determined to confirm the original refusal (the Exemption Decision). The Exemption Decision was conveyed in correspondence from Mr Andrew Leggate, A/Chief Information and Infrastructure Officer at SCHHS.
  1. [11]
    On 8 March 2022, Mrs Mahon filed an Appeal Notice with the Industrial Registry.

Jurisdiction

The decision subject of this appeal

  1. [12]
    Section 194 of the Public Service Act 2008 (Qld) (the PS Act) identifies the categories of decisions against which an appeal may be made. On p 3 of the Appeal Notice, Mrs Mahon indicated she is appealing a fair treatment decision which is appealable under s 194(1)(eb) of the PS Act.
  1. [13]
    I am satisfied the Exemption Decision is appealable.

Timeframe for appeal

  1. [14]
    Section 564(3) of the Industrial Relations Act 2016 (Qld) (the IR Act) requires that an appeal be lodged within 21 days after the day the decision appealed against is given. That is the relevant inquiry with respect to timeframes. I note that despite the question posed in the Form 89 – Appeal Notice regarding when the decision was received.
  1. [15]
    The Exemption Decision is dated 23 February 2022 but appears to have been given via email on 28 February 2022. The Appeal Notice was filed on 8 March 2022. Therefore, I am satisfied the Appeal Notice was filed by Mrs Mahon within the required timeframe.

What decisions can the Commission make?

  1. [16]
    Section 562C of the IR Act prescribes that the Commission may determine to either:
  • confirm the decision appealed against;
  • set the decision aside and return the matter to the decision-maker with a copy of the decision on appeal and any directions considered appropriate; or
  • set the decision aside and substitute another decision.

Consideration

Appeal principles

  1. [17]
    Section 562B(2)-(3) of the IR Act provides that the appeal is decided by reviewing the decision appealed against "to decide whether the decision appealed against was fair and reasonable".
  1. [18]
    The appeal is not conducted by way of re–hearing, but rather involves a review of the decision arrived at by the Respondent and the associated decision–making process.
  1. [19]
    Findings made by the Respondent, which are reasonably open to it, should not be disturbed on appeal.
  1. [20]
    The relevant principles in considering whether a decision is 'unreasonable' were enunciated by Ryan J in Gilmour v Waddell & Ors (emphasis added, citations removed):[7]

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

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

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

The pluarity in Li said:

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

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

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

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

Submissions

  1. [21]
    In accordance with the Directions Order issued on 14 March 2022, the parties filed written submissions. Mrs Mahon elected not to file written submissions in reply to the Respondent's Submissions, despite being given an opportunity to do so.
  1. [22]
    Pursuant to s 451(1) of the IR Act, no hearing was conducted in deciding this Appeal.  The matter was decided on the papers.
  1. [23]
    I have carefully considered all submissions and annexed materials but have determined not to approach the writing of this Decision by summarising the entirety of the material. My focus is on determining whether the Exemption Decision appealed against is fair and reasonable so I will instead refer only to the parties' key positions in my consideration.

The Exemption Decision

Relevant provisions

  1. [24]
    Clause 10 of Directive 12/21 allows employees to apply for an exemption, providing:

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

10.2 Exemptions will be considered in the following circumstances:

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

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

The request

  1. [25]
    On 29 September 2021, Mrs Mahon wrote to the Respondent seemingly to indicate her intention to apply for an exemption. In that correspondence, Mrs Mahon stated, "I am currently 9 weeks pregnant and have no desire to take this vaccination."
  1. [26]
    On 7 October 2021, Mrs Mahon formally applied for an exemption, firstly on the basis of "a recognised medical contraindication to the COVID-19 vaccine".[8] Mrs Mahon annexed a document to the Application showing blood results and a scan.
  1. [27]
    Subsequently on 3 November 2021, Mrs Mahon sent the Respondent an email attaching a Medical Certificate dated 27 October 2021 from Dr Kathryn Dalmer. Dr Dalmer certified that:
  • at that time, Mrs Mahon was "13/40 gestation (EDD 04/05/2022)";
  • Mrs Mahon "has made a personal choice not to receive a COVID vaccination during her pregnancy"; and
  • Mrs Mahon "is aware that there are no contraindications for this and that this is a personal choice."
  1. [28]
    Mrs Mahon also applied for an exemption on the basis of "other exceptional circumstances" and stated:

I am currently 10 weeks pregnant which means I fit into the "pregnant before 11th September" temporary exemption criteria. I have attached my blood results and scan as evidence."[9]

The original refusal

  1. [29]
    On 3 February 2022, Mr Campbell advised Mrs Mahon of the decision to deny her request for an exemption.[10]
  1. [30]
    In that correspondence, Mr Campbell responded to Mrs Mahon's concerns about receiving the COVID-19 vaccination due to pregnancy with the following:
  • the COVID-19 Employee Vaccination Exemption Review Panel (the Panel) determined the Medical Certificate did not contain sufficient medical information to indicate a recognised medical contraindication;
  • Mr Campbell attached the "COVID-19 vaccination decision guide for women who are pregnant, breastfeeding or planning pregnancy" (the Guide);
  • the COVID-19 virus presents a significant risk to the health and safety of healthcare workers, support staff, their families and patients;
  • evidence demonstrates the safety and high-level efficacy of the COVID-19 vaccination;
  • hospitalisation and death from COVID-19 as well as transmission of the COVID-19 virus is less likely when vaccinated;
  • any limitation on human rights is reasonably justified;
  • there is no other reasonably practicable, effective and less restrictive way to achieve the purpose of protecting people from infection and the maintenance of a proper and efficient health system; and
  • Mr Campbell is not satisfied that Mrs Mahon's concerns regarding risk constitute an exceptional circumstance.[11]
  1. [31]
    Notably, the Guide provided to Mrs Mahon concluded "Real-world evidence has shown that Pfizer and Moderna are safe if you are pregnant" and "If you are pregnant, you may have a higher risk of severe illness from COVID-19".[12]

Mrs Mahon's response

  1. [32]
    On 18 February 2022, Mrs Mahon responded to the original refusal of her exemption request and outlined further submissions in support of exemption, submitting the following:
  • Mrs Mahon's maternity leave is due to commence on 21 March 2022 and therefore her vaccination status is irrelevant to her employment at this time;
  • the breach of Mrs Mahon's human rights is unnecessary because she will not be attending work during her maternity leave;
  • Mrs Mahon requests a temporary exemption until her return to work at the end of her maternity leave;
  • Director-General John Wakefield advised in October 2021 that he is granting a temporary exemption to the vaccination timeframes for employees who were pregnant before 11 September 2021 until the first day of re-entering the workplace after giving birth or when the pregnancy ends;
  • Mrs Mahon understands she does not have a medical contraindication to the vaccine;
  • Mrs Mahon has a conscientious objection to the COVID-19 vaccine, based on her freedom of thought and in relation to the safety of her unborn child;
  • Queensland Health did not recommend the COVID-19 vaccine be given in pregnancy until mid-2021;
  • the Guide states that "the data on Covid-19 vaccines in pregnancy are limited, but still growing";
  • Mrs Mahon would prefer reliable and convincing evidence - data can be entered incorrectly and manipulated;
  • there is no evidence on what effects the COVID-19 vaccine will have on the long term health of Mrs Mahon's child;
  • the mandate has had a financial and mental impact on Mrs Mahon's life; and
  • Mrs Mahon is aware of other hospital and health services which have granted temporary exemption to employees pregnant prior to 11 September 2021.[13]

The Exemption Decision

  1. [33]
    Upon review of the original exemption refusal and other submissions presented by Mrs Mahon, Mr Leggate reached the conclusion that "the delegate has undertaken appropriate steps and consideration in relation to your mandatory vaccination exemption request."[14]
  1. [34]
    With respect to exemptions for pregnant employees, Mr Leggate stated:

An email dated 30 September 2021, sent to all employees from the Executive Director People and Culture (EDP&C), included: 'The Director-General this morning advised that he is granting a temporary exemption to the vaccination timeframes … for … employees who were pregnant before 11 September 2021, until the first day of re-entering the workplace after giving birth or when the pregnancy ends…'

Time-limited exemptions have been considered for any employee who was pregnant prior to 11 September 2021. At this point in time you have not commenced a period of pre-approved parental leave, and as stated in your letter dated 3 February 2022, there is insufficient medical information to indicate you have a recognised medical contraindication. In addition, as per the Therapeutic Goods Administration (TGA) safety guidelines regarding pregnancy, you are eligible to be in the workplace if vaccinated.[15]

  1. [35]
    Further, with respect to human rights, Mr Leggate provided:

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.[16]

Consideration

Medical contraindications

  1. [36]
    Although Mrs Mahon originally sought an exemption on the basis of medical contraindications, her Appeal Notice and subsequent submissions do not address this point specifically. Rather, Mrs Mahon appears to accept that her exemption request on the basis of a medical contraindication cannot succeed considering her statement, "I understand that I do not have a medical contraindication to the vaccine."[17] That understanding is clearly supported by the Medical Certificate in which Dr Dalmer certified "She is aware that there is no contraindications for this and that this is a personal choice."
  1. [37]
    An exemption request on the basis of a medical contraindication requires a letter from Mrs Mahon's treating specialist medical practitioner outlining a medical contraindication to the COVID-19 vaccine.[18] Mrs Mahon has not provided such evidence. On that basis, any medical concerns raised by Mrs Mahon will not be considered as legitimate medical contraindications and the decision to not grant Mrs Mahon an exemption on this basis was fair and reasonable in the circumstances.

Other exceptional circumstances

  1. [38]
    Upon review of the Appeal Notice and Mrs Mahon's submissions filed 21 March 2022, I have discerned that Mrs Mahon contends the Exemption Decision is unfair and unreasonable for the following reasons:
  1. Mrs Mahon has made a conscientious objection to receiving the COVID-19 vaccination because she is pregnant.
  1. Mrs Mahon was scheduled to commence maternity leave on 21 March 2022 and is therefore requesting only temporary exemption until she returns to work from maternity leave on or about 4 May 2023.
  1. Mrs Mahon expected to be granted a temporary exemption based on communications by the Director-General.
  1. The previous submissions presented by Mrs Mahon were not adequately considered by the Respondent during the decision-making process.
  1. Other employees in similar circumstances have had their exemption applications approved.

Conscientious objection

  1. [39]
    In Radev v State of Queensland (Queensland Police Service), I considered "exceptional circumstances" and concluded the following:

The term 'other exceptional circumstances' is broad because any number of circumstances may fall within its ambit. The key word is 'exceptional' which the Macquarie Online Dictionary defines as "forming an exception or unusual instance; unusual; extraordinary"… it is not for the Respondent to list a number of unusual situations that an employee can choose from. The ambit of the term allows for anyone who believes their circumstances may be exceptional to outline those circumstances and put their best case forward.[19]

  1. [40]
    Upon review of Mrs Mahon's exemption application, it appears she is alleging her exceptional circumstance to be that she is pregnant. Stemming from that fact is that Mrs Mahon contends she has conscientiously objected to the COVID-19 vaccination because she holds concerns for her unborn child in light of a lack of supporting medical evidence.
  1. [41]
    In my view, the matters raised by Mrs Mahon evince her personal preference not to receive the COVID-19 vaccine and it was reasonable for the Respondent to determine these matters do not demonstrate the existence of any exceptional circumstances which would justify the approval of an exemption. My reasons follow.
  1. [42]
    The Department's "Employee COVID-19 vaccine exemption application form" states (emphasis added):

In extremely limited circumstances, an employee may also use this form to detail other exceptional circumstances which preclude them from meeting the COVID-19 vaccine requirements. In this circumstance:

  • Vaccine hesitancy and conscientious objection, by themselves, are not considered exceptional circumstances.
  • Some other extenuating circumstances must exist.

Where this can be demonstrated, the employee's circumstances will be considered on an individual basis in accordance with Queensland Health's legislative obligations and industrial arrangements however, it is expected that there would be limited applications that would meet exemptions requirements.

  1. [43]
    Clearly the Respondent does not dispute that Mrs Mahon is concerned about reacting to the vaccination or the impacts on her unborn child. With respect to Mrs Mahon's various concerns, simply put, seeking an exemption because one is concerned of an adverse reaction is not an unusual or extraordinary circumstance.
  1. [44]
    Mrs Mahon has also raised several issues with the accuracy and quality of evidence behind the COVID-19 vaccine. Again, the issue for Mrs Mahon is that her concerns are not 'exceptional' and on that basis, the Respondent had a fair and reasonable cause to refuse her exemptions request.
  1. [45]
    Vaccine hesitancy is not itself uncommon and it may stem from a range of reasons. Mrs Mahon has presented many arguments and raised many questions that are just that, arguments and questions - they are not "exceptional circumstances" warranting an exemption.
  1. [46]
    I have considered the specific arguments Mrs Mahon drew my attention to in her Appeal Notice and subsequent submissions. Mrs Mahon also made a series of other arguments in various correspondence. In response to those matters, I refer to Tilley v State of Queensland (Queensland Health) in which Industrial Commissioner Hartigan concluded the following:
  1. [39]
    The other matters, referred to above, raised by Mr Tilley form the basis of his personal preference not to receive a vaccine. I do not consider the matters relied on by Mr Tilley result in Directive 12/21 being unreasonable. In this regard, cl 6 of Directive 12/21 identifies the risk posed by the virus to staff, patients and the broader community and the Directive is aimed at minimising such a risk. I consider that to be reasonable.

[52] Finally, Mr Tilley relies on the financial impact of suspension without remuneration as a ground to argue that the decision was not fair and reasonable. There is no doubt that Mr Tilley will suffer a financial detriment associated with the loss of income. I consider that to be a serious matter. However, it must be considered in the context of all the relevant circumstances of the matter.

[53]The circumstances of this matter include, Mr Tilley failing to comply with a directive which consequently formed a condition of his employment. Further, Mr Tilley's submission indicates that he does not intend to comply with the condition in the immediate future…

  1. [47]
    I similarly conclude that the remaining matters raised by Mrs Mahon evince her personal preference not to receive the COVID-19 vaccination. I do not consider those matters to render the Exemption Decision unfair or unreasonable. Although Mrs Mahon's personal and financial impacts have been taken into consideration, I accept the Respondent has reasonably balanced those potential impacts with the purpose of Directive 12/21.

Maternity Leave

  1. [48]
    Mrs Mahon contends that she was scheduled to commence maternity leave on 21 March 2022 and was therefore requesting only temporary exemption until she intends to return from maternity leave on or about 4 May 2023. On that basis, Mrs Mahon submits that her vaccination status is not relevant to her employment.
  1. [49]
    Mrs Mahon received the Exemption Decision on 28 February 2022. Between the point of her exemption refusal and the date she intended to take maternity leave was approximately three weeks. Mrs Mahon holds a significant frontline role and I do not find it unreasonable that the Respondent determined she ought to be vaccinated in the lead up to taking her maternity leave.
  1. [50]
    Further, in her initial correspondence to the Respondent dated 29 September 2021, Mrs Mahon advised the following (emphasis added):

I am writing this email to request exemption from the mandated COVID19 vaccination. I am currently 9 weeks pregnant and have no desire to take this vaccination. I am on planned Rec leave from the 29/09/21 for 3 weeks which will allow time for my situation to be assessed. I am fully informed of the facts related to the vaccine and do not need any "counselling" on the subject.[20]

  1. [51]
    As Mrs Mahon indicated she has "no desire" to get the COVID-19 vaccination and is already "fully informed of the facts related to the vaccine", I find it was fair and reasonable for the Respondent to conclude that Mrs Mahon may never intend to get the COVID-19 vaccine and that granting even a temporary extension would be futile under the circumstances.

Communications by the Director-General

  1. [52]
    Mrs Mahon refers to and relies upon communications by the Director-General John Wakefield issued in or about October 2021. I note a full copy of this communication has not been provided for my review. The Respondent referred to an excerpt from an email dated 30 September 2021 which may be the correspondence Mrs Mahon is referring to and which is produced at [34] above.
  1. [53]
    In the Exemption Decision, the Respondent indicated that time-limited exemptions were being considered for employees who had commenced a period of pre-approved parental leave and had a recognised medical contraindication to the COVID-19 vaccine.  Further, the Respondent submits that Mr Leggate considered a time-limited exemption on the basis that Mrs Mahon was pregnant prior to 11 September 2021 - however, determined there was insufficient medical information to support a finding that Mrs Mahon has a recognised medical contraindication to receiving a COVID-19 vaccine.[21]
  1. [54]
    Without reviewing a full copy of that communication, I cannot determine that the Exemption Decision was not fair or reasonable on this basis. Mrs Mahon bears the onus of proving her case and excerpts from the communication alone is insufficient. Further, the Respondent has submitted that a time-limited exemption was considered in light of Mrs Mahon's pregnancy but was ultimately refused due to a lack of evidence of a recognised medical contraindication - on the evidence before me, that finding was reasonable in my view.

Inadequate consideration

  1. [55]
    Mrs Mahon broadly submits that her previous submissions to the Respondent were not adequately considered or addressed during the decision-making process.
  1. [56]
    The Respondent need not refer to every argument presented by an employee, particularly where a lot of the arguments fall under vaccine hesitancy or conscientious objection.
  1. [57]
    Upon review of the original exemption refusal, I note Mr Campbell responded to Mrs Mahon's concerns regarding her ability to receive the COVID-19 vaccine due to pregnancy - significantly, this concern appeared to be the crux of Mrs Mahon's issue with the mandate. Mr Campbell also extensively responded to Mrs Mahon's concerns regarding risk generally. In the Exemption Decision, Mr Leggate also addressed Mrs Mahon's argument with respect to communications from the Director-General and ultimately concluded that Mr Campbell had undertaken appropriate steps and consideration in relation to Mrs Mahon's exemption request.
  1. [58]
    Further, I am satisfied that Mrs Mahon's human rights were taken into account and that any limitation was "justified by the need to ensure 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."[22]
  1. [59]
    With respect to human rights, I note the original exemption refusal contains the following:

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 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.[23]

  1. [60]
    I have reviewed the above excerpts and am satisfied the Respondent's consideration of human rights does not render the Exemption Decision unfair or unreasonable. Mrs Mahon's views on human rights simply differ to that of the Respondent and a differing view does not render Mrs Mahon's circumstances 'exceptional'.
  1. [61]
    I note that within the original refusal decision, the decision maker outlined the reasons why the Department is of the view that the COVID-19 virus presents significant risk.[24]
  1. [62]
    With respect to Mrs Mahon's questions and requests for further information, in Higgins v State of Queensland (Queensland Health), Deputy President Merrell relevantly concluded:

[59]In Ms Higgins' letter dated 30 September 2021, submitted as part of her appeal and which was submitted as part of her application for exemption, she did not give any particular reasons which gave rise to any exceptional circumstance. Ms Higgins merely set out a number of questions to her Team Leader and to the Human Resources team in the Health Service in respect of which she requested answers. Ms Higgins then stated that upon considering those answers, she may then '… be happy to accept your offer to receive the treatment, but with certain conditions.'

[60]In my view, the Directive does not contain an offer to receive treatment but contains a direction to particular employees to be vaccinated.

[61]The fact that Ms Higgins may be hesitant to receive a COVID-19 vaccine and genuinely hold that hesitancy does not mean it is incumbent upon the State to accept that view.[25]  

  1. [63]
    In my view, the fact that Mrs Mahon has not received the answers or information she is seeking or has not been satisfied with certain responses does not constitute an "exceptional circumstance". I reject Mrs Mahon's arguments that the Exemption Decision was unfair and unreasonable on this basis. 

Difference in treatment

  1. [64]
    With respect to Mrs Mahon's contention regarding a disparity in treatment between herself and other pregnant employees employed at other hospital and health services, as I noted in Bloxham v State of Queensland (Queensland Police Service) - each decision will be based on different facts and circumstances.[26] Each exemption will necessarily turn on its own facts and the nature of the evidence in support of Mrs Mahon's application or exceptional circumstances as submitted will be different to that of other employees. Further, Mrs Mahon's allegations in this regard are vague and do not specify any individuals or their specific circumstances. On that basis, I reject any implication that the Exemption Decision was unfair or unreasonable on this basis as discrimination is not borne out on the evidence before me.

Conclusion

  1. [65]
    Mrs Mahon presented various reasons for why she contends her exemption application should have been accepted and why the refusal was not fair or reasonable. I have considered those submissions and conclude that the reasons for refusal were reasonably justified on the evidence before the decision maker after consideration of all relevant matters. On that basis, I conclude that the Exemption Decision was fair and reasonable and will confirm that Decision accordingly.

Order

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

Footnotes

[1] Appeal Notice, 8 March 2022, 1; Respondent's Submissions, 29 March 2022, 1 [3].

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

[3] Ibid 1.

[4] Respondent's Submissions, 29 March 2022, 2 [8].

[5] Employee COVID-19 vaccine exemption application form dated 6 October 2021 and emailed to the Respondent on 7 October 2021. 

[6] Email from the Appellant to the Mr W. Campbell, 18 February 2022.

[7] [2019] QSC 170, [207]-[210], citing Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, [63]-[76].

[8] Employee COVID-19 vaccine exemption application form, 6 October 2021, 3.

[9] Ibid 5.

[10] Letter from Mr W. Campbell to the Appellant, 3 February 2022.

[11] Letter from Mr W. Campbell to the Appellant, 3 February 2022.

[12] Australian Government, COVID-19 vaccination decision guide for women who are pregnant, breastfeeding or planning pregnancy V7, 29 October 2021, 2.

[13] Email from the Appellant to Mr W. Campbell, 18 February 2022.

[14] Letter from Mr A. Leggate to the Appellant, 23 February 2022.

[15] Ibid.

[16] Ibid.

[17] Email from the Appellant to Mr W. Campbell, 18 February 2022.

[18] Employee COVID-19 Vaccine Exemption Application Form, 3.

[19] [2021] QIRC 414, 9 [37].

[20] Email from the Appellant to the Respondent, 29 September 2021.

[21] Respondent's Submissions, 29 March 2022, 3 [22].

[22] Letter from Mr A. Leggate to the Appellant, 23 February 2022. 

[23] Letter from Mr W. Campbell to the Appellant, 3 February 2022.

[24] Ibid.

[25] [2022] QIRC 030, 14.

[26] [2022] QIRC 037, 6 [30].

Close

Editorial Notes

  • Published Case Name:

    Mahon v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Mahon v State of Queensland (Queensland Health)

  • MNC:

    [2022] QIRC 156

  • Court:

    QIRC

  • Judge(s):

    Member McLennan IC

  • Date:

    10 May 2022

Appeal Status

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

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.