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Rae v State of Queensland (Queensland Health) QIRC 160
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Rae v State of Queensland (Queensland Health)  QIRC 160
State of Queensland (Department of Children, Youth Justice and Multicultural Affairs)
Public Service Appeal – Appeal against a discipline decision
28 April 2022
28 April 2022
PUBLIC SERVICE – APPEAL – appeal against discipline decision – appeal against suspension without pay decision – where respondent alleges appellant did not comply with department's vaccination policy – where appellant did not seek an exemption from complying with directive – where appellant suspended from duty without renumeration – where appellant submits the decision is unfair and unreasonable – where decision is fair and reasonable
Industrial Relations Act 2016 (Qld) ss 562B, 562C
Public Service Act 2008 (Qld) s 137
Human Rights Act 2019 (Qld)
COVID-19 Vaccination Requirements for Workers in a high-risk setting Direction.
Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018).
George v Rockett (1990) 170 CLR 104.
Casson v State of Queensland (Queensland Police Service)  QIRC 113.
Mr M Rae, the appellant
Ms K McKinnon of the State of Queensland (Department of Children, Youth Justice and Multicultural Affairs)
Reasons for Decision (ex tempore)
- Mr Michael Rae is employed by the Department of Children, Youth Justice and Multicultural Affairs ('the department') as a team leader in the department's 'Northern Outlook' centre. He has been employed by the department for approximately nine years.
- The nature of Mr Rae's role is (broadly) to organise and supervise programs for clients of the department who are largely 'at-risk' youth. The services are in the form of outdoor activities, promoting physical challenges and confidence-building exercises in an adventure activity setting. It is not controversial that Mr Rae's role brings him into direct contact at times with children who are clients of the department, or with staff who will be in direct contact with children who are clients of the department, including children from indigenous communities.
- On 11 December 2021, the Chief Health Officer issued a public health directive imposing vaccine requirements on workers in high-risk settings. It is not controversial that this direction prompted the department to enact a whole of department policy ('the policy') dealing with mandatory vaccine for (at that time) elements of its workforce.
- Schedule 1 of the policy identified which workers 'may' be subject to the direction for mandatory vaccination . The schedule includes the position 'team leader' in an 'outlook centre'. The policy required all employees to whom it applies to have received a COVID-19 vaccine by 17 December 2021 (first dose) and again by 23 January 2022 (second dose).
- It is not controversial that Mr Rae did not comply with the direction and did not apply for an exemption.
- On 11 January 2022, Mr Rae was asked to respond to an allegation in the following terms:
You have failed to follow lawful directions issued by Queensland chief health officer to have received and/or shown evidence that you have had the prescribed number of doses of the COVID-19 vaccination, enabling you to perform the inherent duties of your role whilst attending certain work settings.
- Mr Rae was invited in that correspondence to show cause why he should not have a disciplinary finding made against him and further, why he should not be suspended from his duties without remuneration.
- On 3 February 2022, Mr Rae responded to the show cause letter, setting out a variety of grounds responding to the allegations. In his response Mr Rae outlined four reasons for non-compliance with the direction, namely:
- Ethical; and
- Scope of the direction.
- In addition to these identified reasons for non-compliance, Mr Rae also alleged that he had not received a 'clear' response to an enquiry he had made as to the application of the policy to his role, and he had not had an opportunity to present submissions as to why he felt his role sat outside the scope of the policy or alternative roles he could perform.
- Notably, Mr Rae made no discernible submission about alleged contraventions of his human rights in his response.
- On 10 February 2022, Ms Julie Etchells wrote to Mr Rae to advise him that she had made the following determinations:
- that the allegation was substantiated in that he had contravened a direction without a reasonable excuse; and
- pursuant to section 137(4) of the Public Service Act 2008 (Qld) ('PS Act'), she decided to suspend him from duty without remuneration.
- It is this decision from Ms Etchells that Mr Rae now appeals. I note that the decision is in fact two decisions contained within a single correspondence and while I will deal with each decision separately, I intend to treat the letter of 10 February 2022 as a single decision for the purposes of this appeal.
Nature of Appeals
- Chapter 11 of the Industrial Relations Act 2016 (Qld) ('the IR Act') grants jurisdiction for the Queensland Industrial Relations Commission ('the Commission') to hear appeals under the PS Act. Appeals in this jurisdiction are conducted by way of a review of the decision appealed.
Orders the Commission can make
- The IR Act limits the types of orders that the Commission can make in respect of such appeals. In this appeal the Commission can:
- (a)confirm the decision appealed against; or
- (b)set the decision aside, and substitute another decision; or
- (c)return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate. 
- In accordance with the directions issued from my chambers on 7 March 2022, the parties in this matter filed written submissions. I do not intend to restate the parties' submissions in full in these reasons. I will instead summarise the salient portions below.
- The department relies on the lawful and reasonable status of the heath directive and the policy. The department submits that the direction for Mr Rae to be vaccinated is lawful and reasonable. It further submits that Mr Rae was afforded procedural fairness by the show cause process and had an opportunity to fulsomely respond to the allegation.
- The department characterises Mr Rae's position as vaccine hesitancy and submits his refusal for the reasons he relies on is not justified in all of the circumstances.
- In respect of the suspension without remuneration, the department relies on the discretion available under the PS Act and notes the circumstances leading to the substantiation of the allegation. The department acknowledges the hardship that may arise for Mr Rae from its decision to suspend him without remuneration but further submits that this must be balanced against the department's need to ensure effective and appropriate use of public resources.
- In his written submissions filed on 19 April 2022, Mr Rae submits that when the policy took effect on 17 December 2021, he immediately sought clarity as to whether it would apply to him. He sought clarification by emailing his supervisor.
- Mr Rae's request for clarity was prompted by the use of the term 'may' in the policy. Further, there was an accompanying flowchart purporting to explain which staff or workplaces were covered that did not name his workplace specifically.
- In his written submission, Mr Rae says (in bold print) that he did not receive a response to his request for clarification.
- Mr Rae further submits that the finding in respect of the allegation is not fair and reasonable because of his reasons for refusing to be vaccinated at this time, namely:
- (a)that the policy contravenes his human rights pursuant to the 'UNESCO Declaration on Bioethics and Human Rights';
- (b)that the finding and the threat of suspension without remuneration amounts to coercion or undue pressure;
- (c)that Mr Rae is a religious conscientious objector in that, in the words of his submission, he 'understands' the vaccines being used utilise stem cells from 'aborted babies';
- (d)Mr Rae is concerned as to the safety of the vaccines because (as he asserts) they have not gone through the safeguard trials and have been rushed through on the basis of an emergency. He is also concerned by reports of adverse side effects and many other adverse matters relating to the vaccines that he has read about; and
- (e)Mr Rae submits that he holds ethical concerns about the use of vaccines made by companies with what he describes as a history of criminal conduct.
- Further, in relation to the decision to suspend him without remuneration, Mr Rae contends that his concerns that are outlined above make the decision to suspend him without remuneration unreasonable.
- Mr Rae has also submitted that he has made multiple proposals about alternative arrangements as a compromise, for example, by taking leave or working in other roles. These have each been rejected by the department.
Clarification of the policy
- With respect to Mr Rae's assertion that his request for clarification went unanswered it became apparent at the hearing of this appeal that this was not the case. During the hearing, the department produced an email sent to Mr Rae on 7 January 2022. The email is from a Mr Glen Mollenhauer, manager of the Northern Outlook and addressed to Mr Rae.
- I note that Mr Rae was participating in the hearing by telephone and was not able to view the email when it was tendered by the department. Mr Rae was initially unable to say for certain whether he had received the email or not.
- Having regard to the email from Mr Mollenhauer I note that the language used was less than unequivocal. This is understandable in the largely unprecedented circumstances of a pandemic and the subsequent institutional responses. However, contrary to Mr Rae's earlier assertions that he received no reply, the email is certainly a response to his query albeit not an overtly definitive one. It is Mr Mollenhauer's best attempt in complex circumstances to explain his understanding of the application of the policy.
- While Mr Mollenhauer's email does not explain or clarify his understanding of the application of the policy in overt terms, on the question of coverage of the policy he concludes:
I recognise it's not supportive of your personal circumstances.
- This language is clearly communicating to Mr Rae an opinion that Mr Mollenhauer considered the policy applied to Mr Rae.
- If there was any doubt left about Mr Mollenhauer's opinion, the email further says:
All I can do is encourage you to apply for an exemption or consider your options ASAP.
- Had it genuinely been the case that Mr Rae had not received a reply to his request for clarification of the application of the policy (as he has asserted) then there may have been some unfairness. However, it is clear from the email that Mr Rae was given the benefit of Mr Mollenhauer's opinion and was urged to apply for an exemption.
- In those circumstances, I can see no unfairness arising as alleged by Mr Rae and no reason why he could not have applied for an exemption as urged to by Mr Mollenhauer.
- Alternatively, if it is the case that Mr Rae remained genuinely confused about the application of the policy, then that of itself should have been all the more reason for Mr Rae to either apply for an exemption, or to elevate his requests for clarity on an urgent basis. Instead, Mr Rae waited idly and allowed events to overtake him. If Mr Rae is at any disadvantage from not applying for an exemption, it is a disadvantage of his own creation.
- In any event, when properly considered, the submissions about the lack of clarity as to the application of the policy are ultimately a distraction. It is clear from his response to the show cause letter that Mr Rae had a number of objections to the direction that he receive the vaccine, regardless of whether he could be satisfied the policy applied to him. I am certain he would have pursued his objections regardless of Mr Mollenhauer's response.
Substantiation of the allegation
- The allegation found to have been substantiated is simple in nature namely, that Mr Rae failed to follow lawful directions without reasonable excuse. It is a matter of uncontested fact that Mr Rae did not follow the direction. The question is whether Mr Rae failed to do so in circumstances where he had a reasonable excuse.
- Mr Rae argues the directive is both unlawful and unreasonable, albeit he does not use those terms expressly. The grounds relied on by Mr Rae are mixed and varied. Suffice to say they traverse the usual suite of objections that are now all too commonly found in matters involving vaccine-hesitant workers seeking to avoid a direction to receive a vaccine.
- In dealing with Mr Rae's submissions, I do not propose to descend to the depths of the unregulated information found on the internet to consider and address all the submissions made by Mr Rae. My task is to review the decision of Ms Etchells for the limited purposes allowed by Chapter 11 of the IR Act as opposed to a determination of the merits of the objections raised by Mr Rae.
- Having said that, a brief consideration of the response to the show cause letter (attached to Mr Rae's submissions filed 19 April 2022) is illuminating as to the overall merit of the position he has adopted and whether he had a reasonable excuse to contravene the direction.
- His response to the show cause letter (which is attached to his written submissions filed 19 April 2022) identified four reasons for non-compliance, namely:
- Ethical; and
- Scope of the direction.
Human rights submissions
- I note that in his submissions filed on 19 April 2022 Mr Rae sought to introduce an argument that the direction contravened his human rights. The alleged contravention of his human rights is not a ground previously expressly relied on. While I note Ms Etchells confirmed in the decision that she had considered Mr Rae's human rights, this was not done in a way that responded to any submission from him. In the circumstances this is not a ground I am prepared to consider in any meaningful way in this appeal.
- If I am mistaken in my decision not to consider that submission by Mr Rae, I alternatively consider that Mr Rae’s submissions in that regard do not assist him. Mr Rae attaches to his written submissions filed on 19 April 2022 the United Nations Educational, Scientific and Cultural Organization ('UNESCO') 'Universal Declaration on Bioethics and Human Rights' ('the declaration'). At the outset I note that, in relying on the declaration, Mr Rae wholly ignores that it has no binding legal effect on the department.
- Mr Rae's submissions refer to both Article 3 and Article 6 of the declaration.
- Article 3 reads as follows:
Human dignity and human rights:
- (1)human dignity, human rights and fundamental freedoms are to be fully respected;
- (2)the interests and welfare of the individual should have priority over the sole interest of science or society.
- Leaving aside the fact that Article 3 does not bind the department, no submission is made as to how anything about Article 3 is offended or contradicted by the actions taken by the department in the implementation of the policy mandating vaccines for workers (including Mr Rae).
- Mr Rae also refers to Article 6 of the declaration in respect of the issue of consent. The relevant portion (as far as I can apprehend) is part 1, which reads:
Any preventative, diagnostic and therapeutic medical intervention is only to be carried out with the prior, free and informed consent of the person concerned based on adequate information. The consent should, where appropriate, be express and may be withdrawn by the person concerned at any time for any reason without disadvantage or prejudice.
- Again, leaving to one side the question of how (or if) Article 6 even applies to the department, the vaccine mandate that arises from the policy implemented by the department does not compel Mr Rae to have the vaccine. It does not compel him to undergo any 'preventative, diagnostic and therapeutic medical intervention'. The only compulsion imposed on Mr Rae is to make a choice about whether he will comply with a direction from his employer.
- I am satisfied that no submission was made by Mr Rae in his show cause response that any way compelled the decision maker to consider a human rights contravention as a reasonable excuse for Mr Rae not to comply with the direction.
- Alternatively, Mr Rae made no competent objection to vaccination on the basis of any human rights contravention in his response to the show cause process, and I am satisfied that Mr Rae makes no competent argument on this issue now. Even if he had made his submissions prior to the decision was made by Ms Etchells it would have been both fair and reasonable for her to have rejected it.
Substantiation of the allegation – stated reasons for non-compliance
- In his response to the show cause letter Mr Rae made a broad declaration of his religious convictions and stated that 'as he understands it' the vaccines 'use stem cells from aborted babies' which was contrary to his religious belief. In his written submissions Mr Rae repeated but did not elaborate on this submission any further.
- Mr Rae produced no cogent evidence to support his concerns about the use of aborted foetuses in the manufacture or production of the vaccines or the basis for his understanding. The onus was on him to do so. He offered no more extensive submission or evidence to support this objection in his submissions.
- I can entirely appreciate how a decision maker would conclude that Mr Rae's asserted religious beliefs did not amount to a reasonable excuse for non-compliance in all of the circumstances.
- I consider that it was open to the decision-maker to reject his objection on religious grounds as a reasonable excuse.
- Mr Rae submits that he holds concerns as to the ethical standing of current vaccine manufacturers. He asserted in the show cause response that they have a history of 'criminal conduct'. While Mr Rae attached links to some websites in his written submissions, he did not include any particulars or references in support of his assertions his show cause response.
- Mr Rae's ethical objections arising from the alleged criminal conduct of the pharmaceutical companies is a philosophical objection. Even if true, the alleged 'criminal conduct' of the manufacturers does not undermine the safety or efficacy of the vaccines they produce. Mr Rae is entitled to hold fast by his principles in this regard. However, those principles are not a reasonable excuse to disobey a direction.
- In the circumstances I consider that it was open to the decision-maker to reject his objection on ethical grounds as a reasonable excuse.
- Further, Mr Rae (as an additional ethical concern) referred to inter alia s 51 of the Commonwealth Constitution, the Biosecurity Act 2015 (Cth), Article 6 of the UNESCO declaration, and the Nuremburg Code. Mr Rae provided no particulars in the show cause response as to how each of these applied to justify his refusal, they were merely listed with brief accompanying statements about prohibitions on non-consensual vaccinations and coercion etcetera.
- In the complete absence of any meaningful submissions from Mr Rae I can entirely see why Ms Etchells was not prepared to give these matters greater weight than the health and safety factors underpinning the direction. I consider that it was open to the decision-maker to reject Mr Rae's objection on ethical grounds as a reasonable excuse.
- Mr Rae's written submissions in this regard were no more informative or compelling.
- The medical concerns held by Mr Rae appear to arise from his preference to rely on the opinions of unidentified 'individuals' who have been 'shunned' by mainstream medical and scientific institutions. Mr Rae chooses to adhere to the opinions and advice of medical and scientific outliers as opposed to the peer reviewed advice and collective opinions of the State, national and international medical and scientific institutions and communities, all of which overwhelmingly advise that COVID-19 vaccines are safe.
- In his written submissions Mr Rae said, 'There are a large number of other articles by qualified people from around the world that offer much doubt.' This submission was not supported by any reference or other information about such articles or their authors.
- Again, in those circumstances it was open for the decision-maker to reject his objections on the basis of medical concerns.
4. Scope of CHO in relation to role
- In his response to the show cause letter Mr Rae pressed for the department to consider alternative work arrangements. He continued to press his questions about the term 'may' as it appeared in the policy which I understand to be a query about whether there is a discretionary aspect to the application of the policy. Mr Rae also purported to outline an alternative work method that, in his view, was a reasonable alternative.
- The alternative work method set out in his submissions simply involved not attending a Youth Detention Centre (which was not something he did anyway) and delegating tasks to a vaccinated officer where necessary.
- Mr Rae conceded his work brought him into contact with clients of the department who were typically 'at risk youth'. If his contact was not direct, it would be indirect in the form of briefing work to instructors who in turn would deal with clients. Mr Rae's suggestion of alternative work practices entirely overlooks the reality of transmission of COVID-19. As an unvaccinated person Mr Rae carries a greater risk of contracting the virus and consequently transmitting it to his colleagues who would in turn transmit it to clients.
- I can appreciate why his alternative work arrangements were rejected as a reasonable excuse for non-compliance.
Substantiation of the allegation - conclusion
- I consider that having regard to these matters raised by Mr Rae in his show cause response, it was entirely open to the decision-maker to conclude that the allegation was substantiated in that there was no reasonable excuse on the part of Mr Rae for failing to comply with the direction. It follows in those circumstances, that I consider the decision substantiating the allegation was fair and reasonable.
Suspension without remuneration
- With respect to the decision to suspend Mr Rae without remuneration, the discretion for such a decision arises under section 137 of the PS Act. Section 137 relevantly provides (emphasis added):
- (1)The chief executive of a department may, by notice, suspend a person from duty if the chief executive reasonably believes –
- (a)for a public service officer - the proper and efficient management of the department might be prejudiced if the officer is not suspended; or
- (b)for a public service employee - the employee is liable to discipline under a disciplinary law.
- (4)A public service employee is entitled to normal remuneration during a suspension, unless:
- (a)the person is suspended under subsection (1)(b); and
- (b)the chief executive considers it is not appropriate for the employee to be entitled to normal remuneration during the suspension, having regard to the nature of the discipline to which the chief executive believes the person is liable.
- A prerequisite for exercising the discretion found in section 137(4) is that the chief executive or, in this case, the decision-maker must reasonably believe that the employee is liable to discipline. Reasonable belief can be formed by an inclination of the mind towards assenting to, rather than rejecting a particular proposition.
- In light of my conclusions regarding the substantiation of the allegation set out above I consider that it was reasonable for the decision maker to believe Mr Rae was liable to discipline.
- Further, section 137(4)(a) requires the employee subject to the exercise of discretion must be suspended pursuant to section 137(1)(b). It is a matter of fact that Mr Rae finds himself in those circumstances.
- The fair and reasonable exercise of the discretion in this case then turns on the decision-maker's compliance with the terms of section 137(4)(b). Section 137(4)(b) requires consideration of whether the continued suspension on normal remuneration is appropriate in a very narrow context.
- The language of the section clearly suggests that consideration of appropriateness is limited to the context of 'the nature of the discipline to which the chief executive believes the person is liable'. The decision indicates that termination of Mr Rae's employment is being considered.
- My conclusion in Casson v State of Queensland (Queensland Police Service) is apposite:
In this instance, Mr Casson is very much committed to his choice to refuse to comply with the direction. While he is entitled to his opinion, it can be objectively observed that his views are not supported by the recognised scientific and medical experts around the world. It would appear his insubordinate conduct is likely to make his dismissal a fait accompli. It would seem wholly inappropriate in these circumstances to continue to allow Mr Casson the benefit of his income for weeks (if not months) while the requisite multiple layers of procedural fairness accompanying his disciplinary process are exhausted.
- Mr Rae has failed to follow a lawful direction without reasonable excuse. Further, he has shown no intent at this time to remedy his conduct. It is not for me to pre-empt the outcome of the disciplinary process to which Mr Rae is still subject, but in the circumstances where he has failed to comply with a direction without reasonable excuse, I would consider termination of his employment is almost certainly going to be the outcome in the circumstances.
- Given this all but inevitable outcome, it would be unacceptable for Mr Rae to continue to be remunerated from the public purse for the remainder of the disciplinary process which, subject to any number of other possible delays or diversions, may take weeks or months to complete. I consider the discretion was fairly exercised by the decision maker.
- It follows that I consider that the decision to suspend without remuneration in those circumstances was fair and reasonable in all the circumstances.
- I accept entirely that Mr Rae sincerely and genuinely holds the beliefs that prevent him from complying with the direction. He is entitled to hold those beliefs and make his choice accordingly.
- Having said that, there are a multitude of reliable sources of information available to Mr Rae that confirm the safety and efficacy of the vaccines. He has chosen to reject them in favour of those that no doubt supports his own personal views or speak to his inherent concerns. That is entirely his right to do so, and he is free to make that choice even though it relies on outlying opinions or strong personal principles. But his choice will carry with it consequences for his employment.
- In the circumstances, I make the following order:
- 1The decision appealed against is confirmed
 COVID-19 Vaccination Requirements for Workers in a high-risk setting Direction.
 It has subsequently been amended and now applies to the entire workforce of the department.
 See 'Attachment 1' to the Respondent’s written submissions filed 28 March 2022.
 Goodall v State of Queensland (unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018), 5.
 Industrial Relations Act 2016 (Qld) s 562B.
 Ibid s 562C.
 Exhibit 1.
 T 1-23, ll 5-10.
 T 1-23, ll 10-20.
 Further, Mr Rae appeared to have no understanding of the operation of the Human Rights Act (Qld) 2019 or the circumstances where individual human rights can lawfully be limited (See T 1-15, ll 1-30).
 T 1-16, ll 20-47
 See for example Australian Government Department of Health, 'COVID-19 vaccine safety and side effects (web page, 28 February 2022) <https://www.health.gov.au/initiatives-and-programs/covid-19-vaccines/approved-vaccines/safety-side-effects>; Queensland Government, 'Queensland COVID-19 vaccination information resource' (web page, 10 May 2022) <https://www.qld.gov.au/health/conditions/health-alerts/coronavirus-covid-19/protect-yourself-others/covid-19-vaccine/about/patient-info>; World Health Organisation, 'Coronavirus disease (COVID-19): Vaccines safety' (web page, 24 January 2022) <https://www.who.int/news-room/questions-and-answers/item/coronavirus-disease-(covid-19)-vaccines-safety>.
 Public Service Act 2008 (Qld) s 137(1)(b).
 George v Rockett (1990) 170 CLR 104.
 Casson v State of Queensland (Queensland Police Service)  QIRC 113, 30.
- Published Case Name:
Rae v State of Queensland (Queensland Health)
- Shortened Case Name:
Rae v State of Queensland (Queensland Health)
 QIRC 160
28 Apr 2022