McPaul v State of Queensland (Queensland Health)
[2022] QIRC 175
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- Unreported Judgment
- McPaul v State of Queensland (Queensland Health)[2022] QIRC 175
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McPaul v State of Queensland (Queensland Health)[2022] QIRC 175
McPaul v State of Queensland (Queensland Health)[2022] QIRC 175
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | McPaul v State of Queensland (Queensland Health) [2022] QIRC 175 |
PARTIES: | McPaul, Barry (Appellant) v State of Queensland (Queensland Health) (Respondent) |
CASE NO: | PSA/2022/23 |
PROCEEDING: | Public Service Appeal – Appeal against a fair treatment decision |
DELIVERED EX TEMPORE ON: | 4 May 2022 |
MEMBER: | Dwyer IC |
HEARD AT: | Brisbane |
HEARING DATE: | 4 May 2022 |
ORDER: |
|
CATCHWORDS: | PUBLIC SERVICE – APPEAL – appeal against a fair treatment decision – where appellant is employed as operational service officer – where the Health Employment Directive No.12/21 – Employee COVID-19 vaccination requirements required employees to receive at least a first dose of a COVID-19 vaccine by 30 September 2021 and receive the second dose of a COVID-19 vaccine by 31 October 2021 – where the appellant sought an exemption due to genuine religious belief – where exemption was refused – risk posed to the health and wellbeing of patients, colleagues and other stakeholders – where decision to refuse religious exemption fair and reasonable – where decision reviewing exemption decision confirmed |
LEGISLATION: | Industrial Relations Act 2016 (Qld) ss 562B, 562C Public Service Act 2008 (Qld) Human Rights Act 2019 (Qld) s 13 |
CASES: | Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018) |
APPEARANCES: | Mr B McPaul and Mr D Napier for the appellant Ms R Blakeley, Ms E Watt and Mr C Flemming for the respondent |
Reasons for Decision (ex tempore)
Background
- [1]Mr Barry McPaul is employed with Townsville Hospital and Health Service ('the health service') as an Operational Service Officer. He has been employed by the health service since July 2004.
- [2]On 11 September 2021, the Health Employment Directive No.12/21 - Employee COVID-19 vaccination requirements ('the directive') was issued. The directive required Mr McPaul to have a vaccination against COVID-19, with the first dose to be administered by 30 September 2021 and the second dose to be administered by 31 October 2021. It is not controversial that the directive applied to Mr McPaul and that Mr McPaul has not complied with the requirements of the directive.
- [3]On 25 October 2021, Mr McPaul applied for an exemption from the provisions of the directive requiring him to have a vaccination. Mr McPaul's exemption application expressly nominated genuine religious belief as the singular basis for his application for exemption. Accompanying Mr McPaul's application for exemption was a letter from a pastor confirming that Mr McPaul's religious convictions 'were such that he sought an exemption'.
- [4]Mr McPaul also provided an extensive submission of his own, citing (amongst other things) passages from the Bible and explaining his religious objection based on (as he asserts) the practice of 'harvesting tissue from aborted or living foetuses' to produce cell lines for the Pfizer, AstraZeneca and Moderna vaccines.
- [5]In addition to this, Mr McPaul's supporting letter also expanded the basis of his application to include references to the '1946 referendum' and the 'Commonwealth Constitution' regarding the prevention of forced medical treatment and the Nuremburg Code, and ultimately submitted that the vaccine mandate was unlawful. It is not clear why Mr McPaul included these grounds with his religious exemption application, as they would more properly fall within the ambit of other exceptional circumstances – another basis upon which an exemption can be sought.
- [6]I note that the 'Employee COVID-19 vaccine exemption' application form contains the following passage with reference to the other exceptional circumstances grounds. It provides as follows (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.
- [7]Notwithstanding the conflation of grounds in his application, the application was still considered in full by Ms Sharon Kelly, the Interim Executive Director of Human Resources and Engagement with the health service.
- [8]Ms Kelly issued her decision on 3 December 2021. The decision of Ms Kelly confirms her consideration of all of the material provided by Mr McPaul and concludes, under the heading 'Reasons for Decision' as follows:
Your individual circumstances, including your religious belief and the connection of that religious belief to the requirements under the directive, were balanced against the purposes of the vaccination requirements. I have had regard to the intention of the directive, specifically the requirement to ensure the readiness of the health system in responding to the COVID-19 pandemic, to protect the lives of employees, patients, and the community they serve. The directive contemplates the high degree of risk to public health associated with work performed in healthcare settings and will ensure Queensland Health can provide a safe environment for both employees and patients. On balance, I consider that there is no less restrictive means other than vaccination which would sufficiently ensure the safety of yourself, other staff members and patients. In making this decision I am mindful that Queensland is transitioning to an environment where COVID-19 is endemic. It is inevitable that every Queenslander will eventually be exposed to COVID-19. Safe and effective vaccines for COVID-19 that prevent severe illness and reduce transmission are now widely available and endorsed by regulatory authorities globally and including Australia's Therapeutic Goods Administration. High vaccination coverage among workers in setting with the potential for exposure to COVID-19, particularly those serving vulnerable cohorts, will be a key determinant of health outcomes for Queenslanders and the impact of COVID-19 on healthcare delivery across the state. Limiting transmission within a workplace through the protection of COVID-19 vaccinations will also reduce the likelihood of workplace outbreaks and staff shortages.
- [9]In accordance with the health service's policy, Mr McPaul then sought an internal review of the decision of Ms Kelly on 10 December 2021. In his application for internal review, Mr McPaul complained in the following terms:
I believe this decision to be wrongful and discriminatory, and the letter provided by the Townsville Health and Hospital Service to be dismissive, poorly worded and confusing. No reasons were given for the decision, apart from a vague reference to religious beliefs in the Reasons for Decision section of the letter, which pitted my religious belief and the requirements of the directive were balanced against the purposes of the vaccination requirements.
- [10]Mr McPaul goes on to say:
In the subsequent Reasons for Decision section alluded to above, there are no substantive reasons given for the decision. Of the six paragraphs, only the first makes any attempt to provide the reasoning behind the decision and, as stated, this is vague at best. The other five paragraphs seem to be policy statements about COVID-19 with no relevance to the matter at hand.
- [11]Mr McPaul, in his application for internal review, also touched on the notion of human rights, although did so without any particularity. In his application for internal review, he makes reference to several statutes, anti-discriminatory statutes and vast amounts of case law.
- [12]His submission on human rights in his application for internal review is not clear, but it appears that he has introduced the topic of human rights after it was referred to by Ms Kelly in her decision and says he does not agree that the limiting of his rights is justified.
- [13]On 24 December 2021, Ms Danielle Hornsby, who was the acting chief operating officer, issued her decision in response to Mr McPaul's application for internal review. In her decision, Ms Hornsby included as follows:
In considering the requirements under PSC Directive 11/20 and the actions taken as outlined above, I am of the view that Ms Sharon Kelly has undertaken appropriate steps and consideration in relation to your mandatory vaccination exemption request. I also provide you with my decision in relation to requests in your internal review letter. It is my decision that your request for exemption based upon a genuinely held religious belief has been denied.
- [14]It is this decision that Mr McPaul now appeals.
Statutory framework for public service appeals
- [15]Chapter 11 of the Industrial Relations Act 2016 (Qld) ('the IR Act') provides the Queensland Industrial Relations Commission ('the Commission') with jurisdiction to deal with appeals under the Public Service Act 2008 (Qld).
- [16]
- [17]In this case, the decision under review is itself a review decision. It will therefore be necessary to conduct some level of evaluation of the decision of Ms Kelly in order to consider whether the review decision of Ms Hornsby was fair and reasonable.
- [18]The IR Act limits the powers of the Commission with respect to such appeals and in terms of the orders that can be made, namely:[3]
- (a)confirm the decision appealed against; or
…
- (b)for another appeal - 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.
Submissions of the parties
- [19]In accordance with directions issued from my chambers on 13 January 2022, the parties filed written submissions in these proceedings. I do not intend to restate these submissions in full in these reasons but will instead summarise the salient portions of those submissions below.
- [20]In addition to the written submissions, I had the benefit of some oral submissions from Mr McPaul during the proceedings, through his representative at hearing. In respect of Mr McPaul's submissions, the starting point is the appeal notice. Mr McPaul's appeal notice relevantly reads as follows:
The essence of my initial grievances have been stated in my exemption application letter and in my application for review and, for further details, I refer the commission member to the documents provided. I am more than dissatisfied with the responses from Queensland Health in both instances. Summarily, I would make these main points as the basis for my appeal:
- (1)No substantive reasons have been given for denying an exemption. I fulfilled all requirements to be considered for an exemption, based on my genuinely held religious belief, and was still denied. In my appeal letter I even asked for substantive reasons, but was not provided with any. One may ask, under what circumstances it is possible to receive a religious exemption, if it is even possible at all? And, if not, why even have the process in the first place? Is it an instrument to merely satisfy federal anti-discrimination laws but, in reality, serve no real purpose?
- (2)The decision letter from Queensland Health acknowledges that, 'this decision engages or limits a number of your human rights'. An admission of fact, but it has little relevance to my exemption application, since the COVID-19 mandate affects all Queensland Health workers, religious or otherwise, by coercing them to receive a medical treatment, i.e., vaccine, to retain their employment.
- [21]Mr McPaul expanded on these pleadings in his written submissions by submitting that the mandate was not consented to by him and therefore, is unlawful at common law, questioning who might qualify for religious exemption if he did not, and questioning the safety and effectiveness of vaccines.
- [22]Significantly, in oral submissions at hearing, Mr McPaul's representative was asked but was unable to identify what substance was missing from the decisions. He was given more than one opportunity to do so.
- [23]Ultimately, he submitted that the decision was understood however, Mr McPaul just did not agree with it. Further oral submissions at hearing traversed a range of theories about the origins of the COVID-19 virus and made references to various (unsubstantiated) assertions of US Government involvement in the patenting of both the virus and the vaccines. The oral submission on human rights was superficial and without reference to the Human Rights Act 2019 (Qld) ('the HR Act'). Suffice to say, the submissions restated the theme of coercion.
- [24]The health service filed extensive written submissions and the essence of those submissions is largely captured at paragraph 25, where it is stated:
In the circumstances, it was reasonably open to the decision-maker to determine Mr McPaul's submissions regarding his religious belief did not justify the approval of an exemption. Ms Hornsby did not dispute that Mr McPaul genuinely held the beliefs he expressed. However, it is not incumbent on Queensland Health or the health service to accept Mr McPaul's personal religious beliefs outweigh the other factors to be considered by Queensland Health and the health service, including the public health risk of COVID-19 and the human rights of Mr McPaul's patients, co-workers, and the broader community.
Consideration
- [25]The first ground of Mr McPaul's appeal asserts that no substantive reasons were given for denying his exemption. From my observation of the decision, and the decision under review, this ground is entirely without foundation.
- [26]The reasons extensively set out in Ms Kelly's letter fulsomely explain how on balance, the health and safety of the health service employees and patients takes priority over the religious beliefs of Mr McPaul. The reasons set out the dangers to the public health posed by COVID-19 and the safety and efficiency of the vaccines used to mitigate against those dangers.
- [27]The reasons set out in Ms Kelly's letter are objectively clear and adequate. Indeed, even Mr McPaul now concedes this. The true basis for his objection is simply that he does not agree with the reasons, given that he has instead opted to prefer to believe in various speculative theories about the origins of the virus and the vaccines. No serious attempt was made to offer proof of these theories.
- [28]On the question of fairness and reasonableness, there is a very significant difference between not receiving adequate reasons and not agreeing with the reasons given. Ms Hornsby reviewed the reasons given by Ms Kelly and considered them appropriate. I consider that Ms Hornsby's conclusion was not only open to her but was also objectively the only conclusion open on such a review.
- [29]Mr McPaul has never clearly articulated his arguments on the issue of human rights. His exemption application, which was made on religious grounds, vaguely touched on references to the Commonwealth Constitution and the Nuremberg Code in an oblique way, but never really crystallised as a firm ground relied on for exemption by him personally. It was only after Ms Kelly introduced the notion of human rights in her decision that Mr McPaul appears to seize upon that notion and adds it as 'grist for the mill' in his internal review application. But even then, the basis of his submission never gets any clearer than a mere reference to 'several statutes, anti-discriminatory statutes and vast amounts of case law'.
- [30]At hearing Mr McPaul's representative was invited to explain what this ground of appeal actually meant. The representative had a number of opportunities to do so. The representative had no apparent knowledge of the provisions of the HR Act and was unable to provide any real illumination as to the particulars of the ground. It is not the role of this Commission to cobble together a case for an appellant from diffuse and unclear submissions where the appellant is unable to do so.
- [31]I am not satisfied that Mr McPaul ever articulated a ground for his exemption or the internal review based on some contravention of his human rights. And in those circumstances, I do not consider that either Ms Kelly or Ms Hornsby in any way failed to deal with such a submission or otherwise deal with it unfairly or unreasonably.
- [32]In any event, to whatever extent Mr McPaul's human rights might be limited by the directive (and I draw no conclusions in respect of that) the importance of the need to protect the health and safety of his colleagues and the patients of the health service clearly outweigh his personal rights in the circumstances.[4]
- [33]There is no doubt that Mr McPaul holds a genuine religious belief that has and will continue to make it unacceptable for him to receive a COVID vaccination in their current form. I am not without some sympathy for him in this personal crisis however, the strength of Mr McPaul's beliefs does not outweigh the significance of the increased risk that he poses to his colleagues and patients if he were allowed to attend the workplace unvaccinated.
- [34]Mr McPaul has made a choice based on his genuinely held beliefs. He is entitled to those beliefs, and he is free to make that choice. But the employer's responsibility to protect the health and safety of its staff and patients is significant. At this juncture in the employment relationship, the parties have been forced to this impasse by the unique circumstances imposed on them by the pandemic. In the context of the health service's safety obligation, the direction in those circumstances is both lawful and reasonable.
- [35]Far from being coerced to have a vaccine, Mr McPaul has a choice. He has made a choice and he must now endure the consequences of that choice.
- [36]In all of the above circumstances, I consider the decision of Ms Hornsby to be fair and reasonable.
Order
- [37]In all of the circumstances, I make the following order:
- 1.The decision appealed against is confirmed.