Barbagallo v State of Queensland (Queensland Health)
[2022] QIRC 195
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- Barbagallo v State of Queensland (Queensland Health)[2022] QIRC 195
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Barbagallo v State of Queensland (Queensland Health)[2022] QIRC 195
Barbagallo v State of Queensland (Queensland Health)[2022] QIRC 195
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Barbagallo v State of Queensland (Queensland Health) [2022] QIRC 195 |
PARTIES: | Barbagallo, Sam Harry (Appellant) v State of Queensland (Queensland Health) (Respondent) |
CASE NO: | PSA/2022/320 |
PROCEEDING: | Public Service Appeal – fair treatment decision |
DELIVERED ON: | 3 June 2022 |
MEMBER: HEARD AT: | Pidgeon IC On the papers |
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 – external review – where the appellant applied for an exemption from Health Employment Directive No 12/21 Employee COVID-19 vaccination requirements – where appellant was denied an exemption from complying with directive – appellant sought internal review – internal review confirmed decision not to grant exemption – whether internal review decision was fair and reasonable |
LEGISLATION: | Industrial Relations Act 2016 ss 562, 562B and 562C Public Service Act 2008 s 194 Health Employment Directive No 12/21 Employee COVID-19 vaccination requirements |
Reasons for Decision
Introduction
- [1]Mr Sam Harry Barbagallo (the Appellant) is employed by the State of Queensland (Queensland Health) (the Respondent). Mr Barbagallo is employed as a Food Services Officer at the Sunshine Coast University Hospital (SCUH).
- [2]On 3 February 2022, Mr Barbagallo received an internal review decision confirming a decision not to approve an application for an exemption from compliance with Health Employment Directive No 12/21 (Directive 12/21) which requires relevant employees to receive the required doses of the COVID-19 Vaccination.
Is the Appellant entitled to appeal?
- [3]Section 194 of the Public Service Act 2008 (The PS Act) lists various categories of decisions against which an appeal may be made. Section 194(1)(eb) provides that an appeal may be made against "a decision a public service employee believes is unfair and unreasonable (a fair treatment decision)".
- [4]The appeal notice was filed with the Industrial Registry on 24 February 2022 within 21 days of the decision being received on 3 February 2022. I am satisfied that the Appellant may appeal the decision.
Appeal Principles
- [5]Section 562B(3) of the Industrial Relations Act 2016 (IR Act) provides that "the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable".
- [6]Findings made in the decision which are reasonably open on the relevant material or evidence before the decision maker, should not be expected to be disturbed on appeal.
- [7]A public service appeal is not an opportunity for a fresh hearing, but a review of the decision arrived at by the decision maker. To determine the appeal, I will consider whether the decision received by Mr Barbagallo on 3 February 2022 was fair and reasonable.
- [8]In deciding this appeal, s 562C(1) of the IR Act provides that the Commission may:
- (a)confirm the decision appealed against; or
…
- (c)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.
Directive 12/21
- [9]Directive 12/21 sets out the mandatory vaccination requirements for all current and prospective health service employees employed under the Hospital and Health Boards Act 2011 ('HHB Act').
- [10]Clause 1 of Directive 12/21 provides that compliance with the Directive is mandatory. Clause 2 provides that the purpose of Directive 12/21 is to outline COVID-19 vaccination requirements for existing and prospective employees employed in the identified high-risk groups designated in the Directive.
- [11]Clause 6 of Directive 12/21 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 Directive 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).
- [12]Clause 7 of Directive 12/21 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 Directive 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 Directive.
- [13]Clause 8 of Directive 12/21 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:
a. have received at least the first dose of a COVID-19 vaccine by 30 September 2021; and
b. have received the second dose of a COVID-19 vaccine by 31 October 2021.
- An existing employee must provide to their line manager or upload into the designated system:
a. evidence of vaccination confirming that the employee has received at least the first dose of a COVID-19 vaccine by no later than 7 days after receiving the vaccine.
b. evidence of vaccination confirming that the employee has received the second dose of a COVID-19 vaccine by no later than 7 days after receiving the vaccine.
- An existing employee must maintain vaccine protection. Therefore, an existing employee is required to receive the prescribed subsequent dose/s of a COVID-19 vaccination (i.e. booster), as may be approved by the Australian Technical Advisory Group on Immunisation (ATAGI), within any recommended timeframe following the second dose. Evidence of vaccination, confirming the employee has received prescribed subsequent dose/s of the vaccine, is to be provided to their line manager or other designated person within 7 days of receiving the vaccine.
- An existing employee who is required to have received a first or second dose of a COVID-19 dose at an earlier date under a Chief Health Officer public health direction must be vaccinated by the dates specified in the public health direction.
- The requirements of this clause 8 do not apply to existing employees who have been granted an exemption under clause 10 of this Directive.
- [14]Clause 10 of Directive 12/21 provides that where an employee is unable to be vaccinated, and 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 Directive for the duration of that exemption.
The Appeal
- [15]This appeal requires me to decide if the internal review decision of Andrew Leggate dated 1 February 2022 was fair and reasonable. The internal review decision notes that Mr Barbagallo has not provided further documentation to support his request for an internal review.
The Internal Review Decision
- [16]The internal review decision lists the documentation and information Mr Leggate considered in undertaking the review:
- your exemption application form;
- supporting documentation you provided, including letters from Kennedy Spanner Lawyers;
- the mandatory vaccination exemption outcome decision by the delegate, dated 6 January 2022;
- Public Service Commission Directive 11/20 – Individual Employee Grievances
- Individual Employee Grievances Human Resources (HR) Policy E12
- HR Sub-Delegations manual s 24.2; and
- Instrument of Sub-Delegation – Exemption to COVID19 requirements.
The grounds for your application are outlined in letters from Kennedy Spanner Lawyers which were attached to your application. As the letters appear to relate to the class of persons detailed at Schedule 1 of Kennedy Spanner Solicitors' letter dated 27 September 2021 and does not otherwise identify or reference you by name; for the purposes of your application I have taken the reference to 'our client' as being a reference to you.
- [17]Mr Leggate provided a timeline of Mr Barbagallo's applications and request for review:
- On 11 September 2021, the Director-General, Queensland Health, on the advice of the Chief Health Officer, issued HED 12/21 mandating all unvaccinated staff to obtain their first dose of a COVID-19 vaccine by 30 September 2021, and the second dose by 31 October 2021.
- Your exemption applications were submitted on 24 September 2021, 30 September 2021 and 27 October 2021.
- On 28 October 20221, the Director-General, Queensland Health, sent an email to all employees mandating employees who work in healthcare facilities to be fully vaccinated by 1 November 2021.
- On 21 December 2021, your application was reviewed and considered by the Department of Health and a recommendation put to the delegate for consideration and decision.
- On 6 January 2022, you were advised of the decision in relation to your application for an exemption, specifically, that your application was denied.
- On 19 January 2022, you applied for an internal review of the decision to decline your application for an exemption from vaccination against COVID-19.
- [18]Mr Leggate goes on to state,
In considering the requirements of the PSC Directive 11/20 and the actions taken as outlined above, I am of the view that the delegate 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.
- [19]The appeal notice filed on 24 February 2022 contained the following reasons for appeal:
I have a serious pre-existing health condition, asking me more susceptible to having a life threatening side effect from these COVID19 vaccines. I provided my employer with a letter from my cardiologist providing I have a pre-existing cardiac condition. I am a young male with a pre-existing heart condition, SVT (supraventricular tachycardia), affecting the electrical area of my heart. It has now been proven, with data from many medical journals worldwide, that all these mRNA Covid19 vaccines make a person 133 times more likely to suffer myocarditis or pericarditis after the vaccines. This data also indicates the vaccines affect the electrical part of the heart as well, which in my case already does not function properly. These statistics are for the normal healthy person, my risk would be higher than the indicated 133 x greater risk.
It is now accepted that the vaccinated are contracting and spreading the Covid19 virus as much as the unvaccinated, and it has been admitted worldwide that Omicron, the latest variant, has given more immunity to the world than the vaccines have. It has been admitted that the vaccines have failed dismally. I am no risk to the staff and patients of my workplace and believe it is unethical to decline my request for exemption.
I am also appealing my employer's decision to disregard my religious exemption request. I am a Christian, with strong biblical beliefs and I know God's laws override man's laws. I am bound by the law of God. All the Covid19 vaccines in use have been created using aborted foetuses, which means I cannot partake of them. The Word of God states that God knows each and every one of us from our mother's womb. He also states we shall not kill. Abortion is killing an unborn child with a heartbeat. There are also other medications on the market that are created using aborted foetus cell lines, and I also do not use those medications. As a Christian, I cannot take part in this treatment and I believe it is unfair and unjust for my employer to decline my request for exemption. Especially since the pandemic is now becoming endemic and the Omicron variant has immunised most of the population better than any of the vaccines hastily brought into use as a human trial.[1]
- [20]To be clear, this appeal involves me determining if it was fair and reasonable for Mr Leggate to determine that the decision of Mr Campbell to decline Mr Barbagallo's exemption request was fair and reasonable. However, in doing so, it is clearly necessary to consider the process undertaken and the decision of Mr Campbell.
Mr Barbagallo's submissions
- [21]In considering this appeal, I commence from a position that Directive 12/21 was reasonable and lawful. Therefore, the matters in question pertain to the exemption application process and the outcome of that process as it specifically relates to Mr Barbagallo. Therefore, Mr Barbagallo's submissions in the appeal about what he regards as a lack of consultation and his call for the Department to 'take immediate consideration' of material he has provided regarding a 'report released by Pfizer and listed studies' and advise how the mandate can 'be 'reasonable' under all of the circumstances' are not relevant to this appeal.
- [22]Mr Barbagallo's submissions pertaining to the vaccine exemption decision include a document listing 'hundreds of peer-reviewed published studies which would cause any informed person to have serious concerns about the safety of the provisionally approved vaccines, which have been mandated by Qld Health'. With specific reference to the heart condition he refers to in his notice of appeal, Mr Barbagallo says 'These medical papers indicate there is a significant risk with Covid-19 vaccination, and confirm the high risk of myocarditis in young males after the Covid-19 vaccines, not to mention a young male, such as myself, with a pre-existing cardiac condition, proof of which was supplied (to you) via letter from my cardiologist, Dr K.K. Kim'.
Mr Barbagallo's vaccine exemption application
- [23]I have reviewed Mr Barbagallo's vaccine exemption applications dated 24 September 2021 and 27 September 2021. It appears to me that the application of 27 September 2021 is a resubmission of the original application but includes additional information.
- [24]The vaccine exemption application form includes reference to Directive 12/21 and clearly states that an exemption will only be granted where the employee has a 'recognised medical contraindication to the COVID-19 vaccine or 'where the employee has refused the COVID-19 vaccine on grounds of a genuinely held religious belief'. The form also makes reference to extremely limited circumstances which might preclude the employee from meeting the COVID-19 vaccine requirements but specifically says that 'vaccine hesitancy and conscientious objection, by themselves, are not considered exceptional circumstances'.
- [25]Page 3 of the exemption form provides for an exemption request on the grounds of a recognised medical contraindication to the COVID-19 vaccine. Mr Barbagallo ticked the box to state that he 'can confirm that he is unable to meet the COVID-19 vaccination requirements due to a recognised medical contraindication to the vaccine'. Mr Barbagallo did not attach documentation to that effect.
- [26]Page 4 allows an application to be made for an exemption on the grounds of a genuinely held religious belief. Mr Barbagallo did not fill in that section.
- [27]Page 5 of the form relates to an exemption application on the basis of 'other exceptional circumstances'. In that section, Mr Barbagallo states:
As I have a heart condition, SVT (supraventricular tachycardia), diagnosed by Cardiologist, Dr K. K. Lim, and I also have immediate family members with blood clotting disorders (DVT and protein S deficiency), these family members are both maternal and paternal grandparents, aunts, cousins and my sister. Due to these health conditions, I am not willing to have the Covid19 vaccine….By having a Covid-19 vaccination, I believe I will be exposing myself to an unreasonable risk of harm for which no suitable remedy may exist.
Specialist documentation will be provided once I am able to gain access to my specialist as Qld Health have dictated their terms with such short notice. It is unreasonable to expect these documents to be provided immediately. They will be forthcoming when possible.
- [28]Mr Barbagallo attaches a letter to his exemption application which states in the first line, 'I am choosing to not have any of the Covid19 vaccines'. The letter goes on to outline Mr Barbagallo's concerns with having the vaccine. Mr Barbagallo requests to be redeployed and says that he does not consider that he is a risk to other people. Mr Barbagallo's letter questions the legality of the vaccine direction and concludes with 'please tell me on what legal basis you can mandate me to take something with the potential to kill me?'.
- [29]Mr Barbagallo also attaches a medical certificate dated 27 September 2022. The medical certificate, signed by Dr Peter Herbert states
This is to certify that Mr Sam Barbagallo….is receiving medical treatment, and in my opinion, he cannot have any of the coronavirus vaccines due to medical contraindications.
- [30]On 30 September 2021, Mr Barbagallo sent an email stating 'please find attached updated Covid19 vaccination exemption request documents..'. This email included as an attachment a letter from Kennedy Spanner Lawyers. In this exemption application form, Mr Barbagallo has put handwritten comments in the section on page 5 regarding 'other exceptional circumstances'. The handwritten comments are a summarised version of the typed comments on the previously email exemption request forms and additionally make reference to the Kennedy Spanner Lawyers letter.
- [31]Mr Barbagallo also attaches a letter of 26 June 2020 under the hand of Dr Kim. This letter makes reference to Mr Barbagallo's cardiology review. I note that this letter pre-dates Directive 12/21 and therefore does not make reference to any recognised medical contraindications.
- [32]The email also attaches the letter provided with previous exemption application forms which I have referred to above at [30].
- [33]On 28 October 2021, Mr Barbagallo sent a further exemption form. This email states, 'please find attached the necessary documentation for a religious exemption for myself'. Mr Barbagallo asks that the religious exemption be added to his previous exemption application. Mr Barbagallo also says 'please also find attached additional information for my medical exemption'.
- [34]The attached undated letter from Paul Bartolo, Senior Pastor, Empower Church states:
I am writing regarding Sam Barbagallo's membership at Empower Church. Sam has been a member at Empower Church for approximately 7 years. I can confirm that Sam attends weekly services, actively serves in a team on Sundays, and attends a midweek small group.
- [35]The letter from Paul Bartolo is accompanied by a document from the 'international network of churches' titled, 'INC Declaration of Faith'.
- [36]Mr Barbagallo also attaches an additional document requesting information 'in accordance with statutory legal requirements' and a number of conditions upon which he will 'receive the treatment' when he is 'satisfied there is no threat to my health'.
The decision to deny Mr Barbagallo's vaccine exemption request
- [37]Warren Campbell, A/Director of Human Resource Operations, SCHHS wrote to Mr Barbagallo on 6 January 2022 and informed him 'your request for an exemption based on a medical contraindication, genuinely held religious belief and other exceptional circumstance has been denied'.
- [38]The letter addresses matters raised by Mr Barbagallo in his exemption request and makes specific reference to the attachments he provided with his request (with the exception of the religious affiliation and beliefs which I discuss separately below).
- [39]With regard to Mr Barbagallo's medical condition, Mr Campbell said, in part
Your application has been reviewed internally, and a determination was made by a medical expert that Queensland Health is unable to provide you with an exemption from the requirement to be vaccinated. Your condition is not a recognised medical contraindication precluding vaccination with a COVID-19 vaccine and would not constitute an exceptional circumstance for the purpose of providing you with an exemption.
On that basis, therefore, while I acknowledge the concerns relating to your health, I have decided to refuse your exemption application.
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, as well as ensure the ongoing readiness of the health system to respond to the pandemic.
- [40]With regard to the matters raised by Mr Barbagallo and by Kennedy Spanner Lawyers in relation to the risks associated with COVID-19 and COVID-19 vaccination as it relates to his role, Mr Campbell outlines in detail: decision making which led to Directive 12/21; information about the relevant consultation undertaken; and the consideration of the potential impact of the decision on human rights.
- [41]Mr Campbell goes on to say:
It should be noted that there is no other reasonably practicable, effective and less restrictive way, to achieve this purpose.
I am not satisfied that the concerns regarding risk or consultation constitute another exceptional circumstance.
- [42]On Mr Barbagallo's concerns with relation to the safety of the COVID-19 vaccine, Mr Campbell said:
These concerns indicate that you may be 'vaccine hesitant'. Vaccine hesitancy refers to a delay in acceptance or a refusal of vaccines despite availability, and includes concerns about the safety, efficacy or reliability.
Queensland Health's position is that the COVID-19 vaccination is safe and reliable. The safety and reliability of the COVID-19 vaccination program is supported by the fact that it has been available and operating in Australia for some time during 2021.
I am not satisfied that the concerns regarding the safety of COVID-19 vaccines constitute another exceptional circumstance.
- [43]In response to Mr Barbagallo's concerns regarding his ability to provide free and informed consent, Mr Campbell said:
Free and informed consent to medical treatment is an essential tenet of healthcare. However, as the Directive requires vaccination as a condition of employment, this is materially and irreconcilably different from a situation involving coercive medical treatment or circumstances otherwise giving rise to an inability to provide free and informed consent to medical treatment.
It is Queensland Health's position that the introduction of vaccination as a condition of employment is reasonable and justifiable given that the purposes of the requirement include protecting staff and patients from infection with COVID-19 and the maintenance of a proper and efficient health service in a time of global pandemic.
…
While I acknowledge your concerns, I do not accept that the Directive deprives you of free and informed consent to the COVID-19 vaccination or that these concerns constitute another exceptional circumstance.
- [44]Mr Campbell concludes the decision letter by stating the steps taken to review Mr Barbagallo's request and addresses Mr Campbell's consideration of Mr Barbagallo's human rights. Mr Campbell says that he has decided to refuse the exemption application and outlines the following findings of fact in relation to the application for exemption:
- Your exemption applications were submitted on 24 September 2021, 30 September 2021 and 27 October 2021.
- As part of your application you were advised that you were unable to receive two does of a COVID-19 vaccine due to a heart condition, supraventricular tachycardia and an immediate family history of blood clotting disorders, DVT and protein S deficiency.
- You provided evidence from your treating medical practitioner certifying this.
- You raised a range of concerns in relation to the safety of the COVID-19 vaccines.
- You also outlined concerns regarding free and informed consent.
- You have provided supporting documentation as part of your exemption application to support your affiliation to the Centre.
Request for internal review
- [45]On Wednesday 19 January, Mr Barbagallo exercised his right to request a review of the decision. In his request for review, Mr Barbagallo maintains his objection to receiving the vaccine, again raises concerns about the safety of the vaccine and requests a range of documentation and information.
- [46]Mr Barbagallo again requests information about consultation undertaken with regard to Directive 12/21 and requests information about the medical specialist consulted with regard to his health condition.
- [47]Mr Barbagallo submits that the decision maker has not addressed his conscientious religious objection to 'partaking in a medical treatment that was created using cell lines from aborted babies, as this is a valid and very real concern'. Mr Barbagallo asks to be provided with 'the data and name of whatever Pentecostal clergy you consulted with, to come to your decision to deny this exemption'.
- [48]I have set out the relevant parts of Mr Leggate's internal review decision (subject of this appeal) above at [16]-[18].
Respondent's submissions
- [49]The Respondent sets out a detailed history of Directive 12/21, the vaccine exemption process and associated decisions regarding Mr Barbagallo. The Respondent says that the obligation under Directive 12/21 is for the Department to consider an application for exemption and that it is not obliged to grant an exemption.
- [50]The Respondent notes that Mr Barbagallo received information regarding risk assessment and consultation. Further, the Respondent notes that Mr Barbagallo did not submit any evidence that he has a recognised medical contraindication reported to the Australian Immunisation Register.
- [51]With regard to Mr Barbagallo's undated documentation in support of his application for exemption on the basis of religious belief, the Respondent says that the letter provided did not refer to Mr Barbagallo's exemption application, nor COVID-19 vaccination and that the 'INC Declaration of Faith' document provided outlined statements in respect to commitment to Christianity and passages from the Bible.
- [52]The Respondent says that Mr Leggate carefully considered Mr Barbagallo's application and the basis upon which it was made. Mr Leggate considered the exemption request and weighed Mr Barbagallo's request against the objects and requirements of Directive 12/21, noting the high level of risk to the health and wellbeing of patients, colleagues and other key stakeholders who access services from the Department. The Respondent says that it was on this basis that Mr Leggate confirmed the decision to refuse Mr Barbagallo's exemption request.
- [53]The Respondent says that it undertook risk assessments for the whole workforce in satisfaction of its obligations under the Work Health and Safety Regulation 2011. The Respondent says that before and after Directive 12/21 was issued, the Director-General of the Department received regular briefings from the Chief Health Officer regarding the risks of COVID-19.
- [54]The Respondent concludes that it was reasonably open to Mr Leggate to confirm the decision to refuse Mr Barbagallo's request for an exemption. The Respondent says that 'it was not incumbent on the Department or SCHHS to accept Mr Barbagallo's views, noting the other factors to be considered by the Department and SCHHS, including the public health risk of COVID-19'.
Consideration
- [55]I have considered all of the material provided to me by way of submissions and attachments, even if I do not directly refer to it.
- [56]It is clear to me that the original decision of Mr Campbell addressed the matters raised by Mr Barbagallo and replied to the concerns raised by Mr Barbagallo in some detail. Mr Campbell informed Mr Barbagallo that his medical condition is not a recognised medical contraindication precluding vaccination with a COVID-19 vaccine. Mr Campbell also addressed issues raised in Mr Barbagallo's exemption application and attached documentation regarding risk and consultation, safety of the vaccine and concerns regarding free and informed consent.
- [57]Mr Campbell's decision also set out the findings of fact relied upon making his decision and the steps he undertook in considering the application for exemption.
- [58]I note that in Mr Barbagallo's review application, he states that his religious objection has not been addressed. Mr Leggate's letter does not specifically respond to this submission, however Mr Leggate does state that he considered 'all the documentation' and 'the mandatory vaccination exemption process which was undertaken by the delegate'. Mr Campbell's letter does not make specific reference to Mr Barbagallo's religious objection to receiving the vaccine. However, I do note that Mr Campbell made a finding of fact that Mr Barbagallo is affiliated to the 'Centre'.
- [59]I take that reference to the 'Centre' to be a direct reference to a document Mr Barbagallo attached to his exemption application entitled 'INC Declaration of Faith'. This document carries a watermark reading 'INC international network of churches' and commences with the words, 'As an expression of our commitment to biblical Christianity, the Centre holds to both the Apostles' Creed and Nicene Creed as foundational Christian beliefs. The Centre Expresses these beliefs in the following statements:'. The document then goes on to list statements and bible references under the following headings: God: Holy Trinity; The Father: Father God; Jesus: Our Saviour; The Holy Spirit: Our Helper; The Bible: How we know God; Origin of Life; Sanctity of Life; Humanity: Beautiful and Broken; Family, Marriage, Sexuality and Gender; The Gospel: God Saves Sinners; The Church: God's People; The Ordinances: Baptism and Holy Communion; The Baptism and Gifts of the Holy Spirit; The Christian Life; The Restoration of All Things.
- [60]I have reviewed that document in full. Significantly, there is no mention of COVID-19 vaccines or the position of the 'international network of churches' regarding directions by employers to employees to be vaccinated.
- [61]Further, I note that the letter from the Senior Pastor at Empower Church does not make any statement or reference to the position of Empower Church regarding COVID-19 vaccines or the position of Empower Church regarding directions by employers to employees to be vaccinated.
- [62]The vaccine exemption application form required that the employee was required to provide a letter from a religious leader or official certifying that: the employee has a connection with a religious group; and that the employee has a genuinely held religious belief such that they are unable to receive any COVID-19 vaccine. The letter from the Senior Pastor does not certify that Mr Barbagallo genuinely holds a religious belief precluding him from receiving any COVID-19 vaccine.
- [63]As Mr Campbell includes the affiliation with the 'Centre' as a finding of fact, I am satisfied on the balance of probabilities that he considered the material provided by Mr Barbagallo and that any lack of specific reference to Mr Barbagallo's religious exemption request was most likely an oversight or a reflection of the relevance of the material provided. In circumstances where the supporting evidence required by the exemption process have not been met, I consider that the lack of specific reference to Mr Barbagallo's religious beliefs does not serve to make the decision of Mr Campbell (or that of Mr Leggate) unfair or unreasonable.
- [64]The internal review decision of Mr Leggate is brief when compared to the initial decision of Mr Campbell denying the exemption application. However, it clearly sets out the material considered by Mr Leggate in determining to uphold the denial of Mr Barbagallo's exemption application. I have now considered all of that same information.
- [65]It was open to Mr Leggate to confirm Mr Campbell's decision in circumstances where it was found that Mr Barbagallo does not have a recognised medical contraindication preventing him from receiving the vaccine; has not demonstrated any exceptional circumstances warranting an exemption and where a review of Mr Barbagallo's documents supporting his religious beliefs demonstrates that they do not meet the requirements of the exemption application process.
- [66]The internal review decision of Mr Leggate dated 1 February 2022 is confirmed.
Footnotes
[1] I have inserted paragraph breaks.