Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QIRC
  3. 2022
  4. Clark v State of Queensland (Queensland Health) - [2022] QIRC 170

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

Clark v State of Queensland (Queensland Health)[2022] QIRC 170

Clark v State of Queensland (Queensland Health)[2022] QIRC 170

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Clark v State of Queensland (Queensland Health) [2022] QIRC 170

PARTIES: 

Clark, Perry

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

PSA/2022/268

PROCEEDING:

Public Service Appeal – Appeal against a fair treatment decision

DELIVERED ON:

20 May 2022

MEMBER:

HEARD AT:

Hartigan IC

On the papers

ORDERS:

Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld):

  1. (a)
    the decision is set aside;
  1. (b)
    the matter is returned to a new decision maker with a copy of this decision on appeal; and
  1. (c)
    the decision maker is directed to conduct a fresh internal review in accordance with the terms of Individual employee grievances (Directive 11/20) by no later than 4.00pm on Friday, 3 June 2022.

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – public service appeal – where appellant's exemption application from compliance with the Health Employment Directive No 12/21 – Employee COVID-19 vaccination requirements ('the Directive') on the basis of a genuinely held religious belief and other exceptional circumstances was rejected – where the decision maker did not meaningfully consider the appellant's religious beliefs – where decision is absent written analysis of how the appellant's religious beliefs were considered with respect to the exemption sought – where decision does not disclose in a meaningful way the basis on which the decision was made – where decision not fair and reasonable – decision appealed against set aside and matter returned to new decision maker with a copy of decision on appeal and directions to conduct a fresh internal review by a specified date

LEGISLATION:

CASES:

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

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

Public Service Act 2008 (Qld), s 194

Health Employment Directive No 12/21 – Employee COVID-19 vaccination requirements, cl 1, cl 2, cl 6, cl 7, cl 8, cl 10

Individual employee grievances (Directive 11/20), cl 9

Amaya v State of Queensland (Queensland Health) [2022] QIRC 117

Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245

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

Reasons for Decision

Introduction

  1. [1]
    Mr Perry Clark is employed by the State of Queensland (Queensland Health) ('the Department'), as a Medical Assistant, Radiology, at the Sunshine Coast University Hospital, and the Nambour General Hospital.
  1. [2]
    On 11 September 2021, the Department issued the Health Employment Directive No 12/21 – Employee COVID-19 vaccination requirements ('the Directive'), which requires certain categories of employees to have received two doses of a COVID-19 vaccine and provide their line manager with evidence of confirmation of vaccination.[1] Relevantly, Mr Clark falls within one of those categories of employees.
  1. [3]
    On 30 September 2021, Mr Clark applied for an exemption from the Directive on the basis of a genuinely held religious belief and other exceptional circumstances. Mr Clark provided a statutory declaration in relation to his orthodox Christian beliefs and his opposition to the COVID-19 vaccination on the basis of those beliefs and two letters from his legal representative outlining concerns regarding the risks associated with the COVID-19 vaccination and various other concerns in support of his application.
  1. [4]
    On 14 December 2021, the Department determined to refuse Mr Clark's application for exemption from compliance with the Directive. Mr Clark sought an internal review of this decision on 29 December 2021.
  1. [5]
    By letter dated 24 January 2022, the Department advised Mr Clark that it had confirmed the decision dated 14 December 2021 and that his application for exemption from compliance with the Directive on the basis of a genuinely held religious belief and other exceptional circumstances had been denied ('the decision').
  1. [6]
    By appeal notice filed in the Industrial Registry on 15 February 2022, Mr Clark appealed the decision of the Department.
  1. [7]
    The appeal is made pursuant to s 197 of the Public Service Act 2008 (Qld) ('the PS Act'), which provides that an appeal under Ch. 7, Pt. 1 of the PS Act is to be heard and determined under Ch. 11 of the IR Act by the Queensland Industrial Relations Commission.
  1. [8]
    Sections 562B(2) and (3) of the IR Act, which commenced operation on 14 September 2020, replicates the now repealed ss 201(1) and (2) of the PS Act.[2] Section 562B(3) of the IR Act provides that the purpose of an appeal is to decide whether the decision appealed against was fair and reasonable. Accordingly, the issue for my determination in this appeal is whether the decision is fair and reasonable.
  1. [9]
    I must decide the appeal by reviewing the decision appealed against. The word 'review' has no settled meaning and, accordingly, it must take its meaning from the context in which it appears.[3] An appeal under Ch. 7, Pt. 1 of the PS Act is not a re-hearing but, rather, involves a review of the decision arrived at and the decision-making process associated with it.[4]
  1. [10]
    For the reasons contained herein, I have found that the decision was not fair and reasonable.

The decision

  1. [11]
    The decision maker ultimately determined that the original decision maker undertook the appropriate steps and considerations in relation to Mr Clark's application for exemption from the Directive and determined that Mr Clark is not exempt from the requirements of the Directive.
  1. [12]
    The decision maker provided the following reasons in support of the decision:

My decision

In considering the requirements under PSC Directive 11/20 and the actions taken as outlined above, I am of the view that the EDP&C has undertaken appropriate steps and consideration in relation to your mandatory vaccination exemption request.

Accordingly, you are not exempt from the requirements of HED 12/21.

  1. [13]
    The decision maker also considered the effects of the decision on Mr Clark's human rights and provided as follows:

Human Rights considerations

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.

Relevant legislation and Directive

  1. [14]
    Section 194 of the PS Act provides for decisions against which appeals may be made and relevantly includes:

194Decisions against which appeals may be made

  1. (1)
    An appeal may be made against the following decisions –

…

(eb) a decision a public service employees believes is unfair and unreasonable (a fair treatment decision)

…

  1. [15]
    The Directive sets out the mandatory vaccination requirements for all current and prospective health service employees employed under the Hospital and Health Boards Act 2011 (Qld) ('HHB Act').
  1. [16]
    Section 51A of the HHB Act provides for the issuing of health employment directives and is set out in the following terms:

51A Health employment directives

  1. (1)
    The chief executive may issue health employment directives about the conditions of employment for health service employees.
  2. (2)
    Without limiting subsection (1), a health employment directive may be about the following—
  1. (a)
    remuneration for health executives and senior health service employees;
  2. (b)
    the classification levels at which health executives and senior health service employees are to be employed;
  3. (c)
    the terms of contracts for health executives and senior health service employees;
  4. (d)
    the professional development and training of health service employees in accordance with the conditions of their employment.
  1. (3)
    A health employment directive may apply to any or all of the following—
  1. (a)
    the department, a Service or all Services;
  2. (b)
    health service employees, or a stated type of health service employee.
  1. [17]
    Section 51E(1) of the HHB Act provides that, inter alia, a health employment directive that applies to an employee of the department is binding on the employee and the department.
  1. [18]
    Clause 1 of the Directive provides that compliance with the Directive is mandatory. Clause 2 provides that the purpose of the Directive is to outline COVID-19 vaccination requirements for existing and prospective employees employed in the identified high-risk groups designated in the Directive.
  1. [19]
    Clause 6 of the Directive identifies the potential risk posed to relevant employees, and the risk profile of those employees as follows:

The COVID-19 virus has been shown to disproportionately affect healthcare workers and health support staff and poses a significant risk to Queensland Health patients, and the broader community.

In recognition of the risks posed by the virus, as well as workplace health and safety obligations incumbent upon both the organisation and employees, this HED requires health service employees who are identified as being in high risk groups to be vaccinated against COVID-19.

Prospective and existing health service employees subject to these requirements have been identified based on the following risk profile:

  • They are working in an area with suspected or confirmed COVID-19 patients or an area that a COVID-19 patient may enter.
  • They are coming into direct or indirect contact with people who work in an area with COVID-19 patients or an area that a suspected or actual COVID-19 patient may enter.
  • They are unable to observe public health requirements (e.g. physical distancing, working in areas of high population density, rapid donning/doffing of personal protective equipment (PPE) in emergent situations).
  • They have the potential to expose patients, clients, other staff or the broader community to the virus (e.g. occupying shared spaces such as lifts, cafeterias, car parks, with people working with suspected or actual COVID-19 patients).
  1. [20]
    Clause 7 of the Directive sets out the requirements for vaccination. Relevantly, cl 7.1 states:

In acknowledgment of the risks posed by the COVID-19 virus to the health and safety of Queensland Health employees, patients and the broader community, clauses 8 and 9 of this HED require all existing and prospective employees who are or are to be employed to work in the cohorts as categorised in accordance with Table 1 (below), to be vaccinated as a condition of employment, subject to certain limited exemptions described in clause 10 of this HED.

  1. [21]
    Clause 7.1 of the Directive also includes a table[5] which separates Queensland Health employees into a group number based on their employee cohort. Mr Clark falls within Group 2, which covers an employee cohort of all health service employees who are employed to work in a hospital or other facility where clinical care or support is provided.
  1. [22]
    Clause 8 of the Directive sets out the mandatory vaccine requirements for existing employees as follows:

8.1  Existing employees currently undertaking work or moving into a role undertaking work listed in a cohort of Table 1, must:

  1. a.
    have received at least the first dose of a COVID-19 vaccine by 30 September 2021; and
  2. 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.
  2. 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. [23]
    Clause 10 of the Directive provides that where an employee is unable to be vaccinated, an exemption may be granted as follows:

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

10.2 Exemptions will be considered in the following circumstances:

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

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

  1. [24]
    Individual employee grievances (Directive 11/20) ('Directive 11/20') provides principles and procedures for managing and resolving individual employee grievances. Clause 9.2 of Directive 11/20 provides for the internal review of a decision and relevantly states:
  1. (a)
    If an employee is dissatisfied with a decision made through local action, the employee may make a written request to the agency chief executive for an internal review.
  2. (b)
    A request for an internal review must:
  1. (i)
    be received by the chief executive within 14 days of the employee receiving a copy of the decision made through local action or a decision is taken be made under clause 9.1(e)
  2. (ii)
    clearly state the reasons for dissatisfaction with the decision made through local action, and not merely state a belief that the decision made through local action was unfair and unreasonable, and
  3. (iii)
    state the action the employee believes would resolve the grievance.
  1. (c)
    Once an agency receives a request for an internal review, the agency must notify the employee in writing:
  1. (i)
    that the request for an internal review has been received by the agency
  2. (ii)
    of the name and contact information for a contact person for the internal review, and
  3. (iii)
    of the 14 day timeframe for making a decision in clause 9.2(f).
  1. (d)
    An internal review is to be completed by the chief executive or their delegate. The chief executive or delegate is to determine whether the decision made through local action was fair and reasonable in the circumstances.
  2. (e)
    If the chief executive or delegate is satisfied that:
  1. (i)
    the reasons for seeking an internal review are insufficient
  2. (ii)
    the request for internal review is frivolous or vexatious, or
  3. (iii)
    the employee has unreasonably refused to participate in local action to resolve the individual employee grievance

the agency may decide to take no further action in relation to the request for internal review. The agency must give written reasons for its decision in accordance with clause 9.2(h).

  1. (f)
    A decision about internal review of a decision made through local action must be made as soon as possible and within 14 days of receipt of a written request from an employee for internal review. The 14 day period commences from the date the agency receives the request for internal review, in accordance with clause 9.2(b). This applies unless:
  1. (i)
    the timeframe has been extended by mutual agreement between the parties. A party to the individual employee grievance is not to unreasonably withhold their agreement or
  2. (ii)
    where the chief executive or delegate can demonstrate that reasonable attempts have been made to progress the individual employee grievance.
  1. (g)
    If the chief executive or delegate fails to make a decision in relation to the request for internal review, the agency is taken to have confirmed the decision made through local action. Depending on the issues raised in the individual employee grievance, this may result in an avenue of external review being available to an employee once the 14 day period in clause 9.2(f) has expired.
  2. (h)
    At the completion of internal review, including a decision to take no further action under clause 9.2(e), the chief executive or delegate must provide a written decision to the employee. This decision must:
  1. (i)
    outline the action taken to review the decision made through local action
  2. (ii)
    outline the reasons for the decision, or the decision to take no further action
  3. (iii)
    outline any avenues of external review that may be available to the employee, including any relevant timeframes.
  4. (iv)
    outline any avenues of external review that may be available to the employee, including any relevant timeframes.

The Appellant's submissions

  1. [25]
    The role of the Commission in an appeal of this nature is to determine whether the decision is fair and reasonable.
  1. [26]
    Directions were issued by the Commission requiring Mr Clark to file written submissions in support of the appeal.
  1. [27]
    The submissions filed by Mr Clark do not identify the basis upon which he contends that the decision is not fair and reasonable. Rather, the submissions read as a more far-reaching complaint with respect to the Department's conduct. Relevantly, Mr Clark commences his submissions as follows:

I write to you to lodge a complaint against my employer, QUEENSLAND HEALTH, as I have experienced that they have perpetrated discrimination against me, which has caused me significant emotional distress and I currently have a threat of the disciplinary action which may lead to dismissal of my job.

  1. [28]
    Further, Mr Clark complains that he has experienced both direct and indirect discrimination in contravention of the Anti-Discrimination Act 1991 (Qld) ('the AD Act'). Mr Clark filed written submissions in reply to the submissions filed by the Department. Unfortunately, those submissions did not reply in any substantive way to the Department's submissions. Rather, Mr Clark identifies the outcome he was seeking to resolve 'the complaint' as follows:

I. What kind of outcome do I want that would resolve the complaint?

In the first instance I seek remedy, that:

  1. An order stating that the HED be permanently revoked.
  2. An order stating that the HR Policy B70 Employee COVID-19 vaccination requirements be permanently revoked.
  3. An order enforcing that I be permanently exempt from any future Directives or Policies relating to any future requirements pertaining to COVID-19 vaccinations or any other experimental vaccines or medical treatments.
  4. An order enforcing that I am able to perform saliva PCR testing and RAT testing in order to comply with screening requirements and that I must not be mandatorily required to have my body penetrated by any swabs or other testing implements other than if I freely consent to it.
  5. An order that I be reinstated to my part-time permanent role as a Medical Imaging Assistant at Sunshine Coast University Hospital (SCUH) and Nambour General Hospital (NGH)
  6. An order that I be entitled to have any superannuation, recreational leave or long service leave entitlements since 6th of February 2022 reimbursed to me and also reimbursement of these leave categories if I am required to utilise such leave to maintain my income while on suspension.
  7. An order that I be permanently exempt from any current or future disciplinary action pertaining to:

i. the HED

ii. the HR Policy B70 Employee COVID-19 vaccination requirements

  1. Requested remedy for the Commissioner to make an order of compensation in the order of my lost wages for 15 years that I still planned to work.
  2. I request an order for an injunction to stop QLD HEALTH from firing me until my complaint is resolved.
  3. I request an order for my special discretionary leave to be reinstated at the correct penalty rates “based on a projected roster” until my complaint is resolved.
  4. And order requiring the respondent to make a private apology and retraction of the discriminatory decisions.
  5. An order requiring QLD HEALTH to make a public apology and retraction by publishing the apology and retraction in the same public forums that were used to speak derogatorily against unvaccinated staff and members of the public; as these publications caused many members of the public to perpetrate discriminatory behaviour against unvaccinated people myself included; and fostered a culture where discrimination on the basis of impediment and or genuinely held religious beliefs, is not just accepted but also is believed to be required by law, which as demonstrated in my previous submission such discrimination cannot be required by law and it is unlawful for my employer to publish content that fosters such discriminatory culture within the fabric of our society.

In the event the HED and HR Policy B70 will not be revoked, then I seek remedy that:

  1. An order that I be permanently exempt from the HED.
  2. An order that I be permanently exempt from the HR Policy B70 Employee COVID-19 vaccination requirements be permanently revoked.
  3. An order that I be permanently exempt from any future Directives or Policies relating to any future requirements pertaining to COVID-19 vaccinations.
  4. An order that I be permanently exempt from PCR testing.
  5. An order that the threat of disciplinary action immediately be removed and I be reinstated to my part-time permanent role as a Medical Imaging Assistant at Sunshine Coast Hospital and Nambour General Hospital without detriment or any ongoing discrimination or harassment.
  6. An order that I be reimbursed for all my shift allowances that were withheld.
  7. An order that I be entitled to have any superannuation, recreational leave or long service leave entitlements since 6th of February 2022 reimbursed to me and also reimbursement of these leave categories if I am required to utilise such leave to maintain my income while on suspension.
  8. An order that I be permanently exempt from any current or future disciplinary action pertaining to:

i. the HED

ii. the HR Policy B70 Employee COVID-19 vaccination requirements

  1. Requested remedy for the Commissioner to make an order of compensation in the order of my lost wages for 15 years that I still planned to work.
  2. I request and order for an injunction to stop QLD HEALTH from firing me until my complaint is resolved.
  3. I request an order for my special discretionary leave to be reinstated at the correct penalty rates “based on a projected roster” until my complaint is resolved.
  4. And order requiring the respondent to make a private apology and retraction of the discriminatory decisions.
  5. An order requiring QLD HEALTH to make a public apology and retraction by publishing the apology and retraction in the same public forums that were used to speak derogatorily against unvaccinated staff and members of the public; as these publications caused many members of the public to perpetrate discriminatory behaviour against unvaccinated people myself included; and fostered a culture where discrimination on the basis of impediment and or genuinely held religious beliefs, is not just accepted but also is believed to be required by law, which as demonstrated in my discussion above such discrimination cannot be required by law and it is unlawful for my employer to publish content that fosters such discriminatory culture within the fabric of our society.
  1. [29]
    For completeness, it is noted that this appeal has been commenced in accordance with the PS Act. A public service appeal commenced pursuant to Ch. 7 Pt. 1 of the PS Act is to be heard and decided under the IR Act.[6] Section 562B(2) of the IR Act provides that the Commission must decide the appeal by reviewing the decision appealed against. In deciding the appeal, the Commission may relevantly:
  1. (a)
    confirm the decision appealed against; or
  1. (b)
    set the decision aside and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.
  1. [30]
    Accordingly, the relief sought by Mr Clark in his reply submissions is not relief that is able to be granted with respect to a public service appeal.
  1. [31]
    Further, the Commission when conducting a review of a decision in relation to an appeal under the PS Act is not able to determine whether there has been a contravention of the AD Act. Whilst the Commission does have powers and functions pursuant to the AD Act in relation to, inter alia, complaints about contraventions of the AD Act that are referred or are to be referred to the Commission under the AD Act,[7] the complaints raised by
    Mr Clark have not been commenced in accordance with the AD Act.
  1. [32]
    Accordingly, I will consider the complaints made by Mr Clark insofar as they are relevant only to the issue that I am required to determine. Namely, if the decision is fair and reasonable.

Whether the decision was fair and reasonable

  1. [33]
    As noted above, the role of the Commission in an appeal such as this, is to conduct a review of the decision to determine whether it is fair and reasonable.
  1. [34]
    In order to determine whether the decision was fair and reasonable, regard will be had to the reasons provided by the decision maker.
  1. [35]
    As noted above, cl 9.2(h) of Directive 11/20 provides that on the completion of an internal review, a written decision must be provided to the employee that outlines the reasons for the decision.
  1. [36]
    After referring to a chronology of the matter up to the date Mr Clark applied for an internal review, the substantive reasoning of the decision is contained in the following passage (which I will repeat here for ease of reference):

In considering the requirements under PSC Directive 11/20 and the actions taken as outlined above, I am of the view that the EDP&C has undertaken appropriate steps and consideration in relation to your mandatory vaccination exemption request.

Accordingly, you are not exempt from the requirements of HED 12/21.

  1. [37]
    The Department contended that the decision was fair and reasonable and made the following submissions in support of the decision:
  1. 20.
    Mr Leggate properly considered Mr Clark's exemption request and submissions and weighed these against the objects and requirements of the HED 12/21, noting the high level of risk to the health and wellbeing of patients, colleagues and other key stakeholders who access services from SCUH and NGH. On this basis, Mr Leggate confirmed the decision to refuse Mr Clark's exemption request.
  2. 21.
    Exemptions, including exemptions on the basis of a genuinely held religious belief to the vaccine, or any other circumstance, are considered in accordance with the Department's obligations and have only been approved in exceptional circumstances.
  3. 22.
    Mr Clark does not complain there has been a failure to consider his religious beliefs, but that Mr Leggate's decision discriminated against his religious and absolute rights. It is clear his true complaint is not that his religious beliefs have not been recognised, but that they have not been given the degree of recognition that he thinks they deserve. It is also clear Mr Clark fails to accept the importance of competing considerations of workplace and community safety and how they could take precedence over his religious beliefs. (footnotes omitted)
  1. [38]
    As evidence by the reference to the extract of the decision above, the decision maker (Mr Leggate) did not state in his reasons that he embarked upon a consideration of the matters as referred to in the Department's submissions.
  1. [39]
    The reasons do not disclose in any meaningful way, the reason why the decision was made, having regard to the circumstances surrounding Mr Clark's request for an exemption.
  1. [40]
    The submissions made by the Department in this appeal are very similar to the submissions made by the Department in Amaya v State of Queensland (Queensland Health)[8] ('Amaya'). Amaya involved an appeal of a decision to refuse an exemption application. Ms Amaya applied for an exemption from the Directive on the basis of a genuinely held religious belief.
  1. [41]
    In Amaya, the Commission, as presently constituted, held as follows:
  1. [31]
    The reasons provided in support of the decision subject to this appeal do not explain what regard the decision maker had to Ms Amaya's religious beliefs. The decision is absent any written analysis of Ms Amaya's religious beliefs and how such religious beliefs were considered with respect to the exemption sought by Ms Amaya and in the terms of the operation of the Directive.
  1. [32]
    The written submissions of the Department contend that:

Ms Scott properly considered Ms Amaya's exemption request made on the basis of religious belief and weighed these against the objects and requirements of HED 12/21, noting the high level of risk to the health and wellbeing of patients, colleagues and other key stakeholders who access services from Oral Health Toowoomba, the Toowoomba Hospital and the DDHHS. On this basis, Ms Scott confirmed the decision to refuse Ms Amaya's exemption request.

  1. [33]
    Unfortunately, the difficulty in accepting the Department's submissions is that the reasons for the decision simply do not state such things, or even words to the effect of those matters.
  1. [34]
    I consider the decision subject to this appeal, failed to meaningfully consider Ms Amaya's religious beliefs. Indeed, the decision does not refer to Ms Amaya's religious beliefs in any detailed way under the headings 'My review' and 'My decision'.
  1. [35]
    Directive 11/20 outlines, at cl 9.2, the process for an internal review. Relevantly, cl 9.2(h)(ii) provides, inter alia¸ that upon completing an internal review, the delegate must provide a written decision outlining the reasons for the decision. If the decision maker did meaningfully consider Ms Amaya's religious beliefs when undertaking the internal review, then such consideration is absent from the reasons.
  1. [36]
    The result of the failure to meaningfully consider Ms Amaya's religious beliefs is that Ms Amaya, and the Commission now considering this appeal, can not determine what regard was had to Ms Amaya's religious beliefs in conducting the internal review.
  1. [42]
    For similar reasons to the reasons in Amaya, I have determined that the decision was not fair and reasonable.
  1. [43]
    The reasons for the decision do not meaningfully address Mr Clark's religious beliefs and how such religious beliefs were considered with respect to the exemption sought. The reasons do not deal with the matters raised in written submissions by Mr Clark.
  1. [44]
    Significantly, the decision maker did not identify the consideration had or disclose any analysis that was conducted of the matters it was contended in the submissions that the decision maker had regard to.
  1. [45]
    The reasons provided do not disclose, in any meaningful way, the basis upon which the decision was made.
  1. [46]
    For this reason, I consider that the decision was not fair and reasonable. Consequently, I will set aside the decision made on 24 January 2022 and direct that a different decision maker of the Respondent conduct a fresh internal review in accordance with the terms of Directive 11/20 by 4.00pm on Friday, 3 June 2022.

Order

  1. [47]
    I make the following orders:

Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld):

  1. (a)
    the decision is set aside;
  1. (b)
    the matter is returned to a new decision maker with a copy of this decision on appeal; and
  1. (c)
    the decision maker is directed to conduct a fresh internal review in accordance with the terms of Individual employee grievances (Directive 11/20) by no later than 4.00pm on Friday, 3 June 2022.

Footnotes

[1] Health Employment Directive No 12/21 – Employee COVID-19 vaccination requirements, cls 1, 7.1 and 8.1. 

[2] See the Public Service and Other Legislation Amendment Act 2020 (Qld).

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

[4] Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018).

[5] Table 1.

[6]Public Service Act 2008 (Qld), s 197.

[7] Anti-Discrimination Act 1991 (Qld), s 174B.

[8] [2022] QIRC 117.

Close

Editorial Notes

  • Published Case Name:

    Clark v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Clark v State of Queensland (Queensland Health)

  • MNC:

    [2022] QIRC 170

  • Court:

    QIRC

  • Judge(s):

    Member Hartigan IC

  • Date:

    20 May 2022

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Amaya v State of Queensland (Queensland Health) [2022] QIRC 117
2 citations
Jump To
Cite 1 - [2022] QIRC 117
Cite 2 - [2022] QIRC 117
Brandy v Human Rights & Equal Opportunity Commission (1995) 183 CLR 245
2 citations
Jump To
Cite 1 - (1995) 183 CLR 245
Cite 2 - (1995) 183 CLR 245
Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10
1 citation
Jump To
Cite 1 - [1995] HCA 10
Goodall v State of Queensland [2018] QSC 319
2 citations
Jump To
Cite 1 - [2018] QSC 319
Cite 2 - [2018] QSC 319

Cases Citing

Case NameFull CitationFrequency
Batchelor v State of Queensland (Queensland Ambulance Service) [2022] QIRC 3362 citations
Doedens v State of Queensland (Queensland Ambulance Service) [2022] QIRC 2633 citations
1

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.