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Tilley v State of Queensland (Queensland Health)[2022] QIRC 2

Tilley v State of Queensland (Queensland Health)[2022] QIRC 2

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

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

PARTIES:

Tilley, Michael John

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

PSA/2021/412

PROCEEDING:

Public Service Appeal – appeal against a suspension without pay decision

DELIVERED ON:

7 January 2022

MEMBER:

Hartigan IC

HEARD AT:

On the papers

ORDER:

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

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – public service appeal  – appeal against a disciplinary finding and suspension without pay decision – where respondent alleges that appellant did not comply with Health Employment Directive No 12/21  Employee COVID-19 vaccination requirements  – where allegation substantiated – where appellant did not seek an exemption from complying with directive – where appellant suspended from duty without remuneration – where appellant submits that decision is unfair and unreasonable on the basis he has provided a fair and reasonable excuse for non-compliance – where appellant submits directive is unreasonable – where appellant submits respondent did not consider alternative arrangements –  where directive is reasonable – where respondent did have regard to alternative arrangements – where decision is fair and reasonable

LEGISLATION:

Industrial Relations Act 2016 (Qld) ss 562, 562B and 562C

Public Service Act 2008 (Qld) ss 137, 187 and 194

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

Health Employment Directive No 12/21

Employee COVID-19 vaccination requirements cls 1,6, 7, 8 and 10

CASES:

Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245

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

Wong v Commonwealth of Australia and Anor Selim v Lele, Tan and Rivett constituting the Professional Services Review Committee No 309 [2009] HCA 3

Reasons for Decision

Introduction

  1. [1]
    Mr Michael Tilley ('Mr Tilley') is employed by the State of Queensland (Queensland Health) ('the Department'), Metro South Health. Mr Tilley is employed as a CA3 Clinical Assistant, Allied Health, Occupational Therapy in the Logan Hospital and as a OO3 Operational Officer, Theatres, Beaudesert Hospital. Both appointments are on a permanent part-time basis.
  1. [2]
    Mr Tilley has been an employee of the Department since 20 May 2012.
  1. [3]
    This appeal has been commenced in the context of Mr Tilley allegedly failing to comply with a directive which required Mr Tilley to comply with the requirements of the Health Employment Directive No 12/21 – Employee COVID-19 vaccination requirements ('Directive 12/21').
  1. [4]
    Mr Tilley's employment as a CA3 Clinical Assistant is governed by the Health Practitioners and Dental Officers (Queensland Health) Award – State 2015 and the Health Practitioners and Dental Officers (Queensland Health) Certified Agreement (No.3) 2019, whilst his employment as an OO3 Operational Officer is governed by the Hospital and Health Services General Employees (Queensland Health) Award – State 2015 and the Queensland Public Health Sector Certified Agreement (No.10) 2019.
  1. [5]
    On 1 November 2021, the Department put an allegation, associated with Mr Tilley's failure to comply with a workplace directive, to Mr Tilley for his response. Specifically, it was alleged that Mr Tilley failed to comply with a workplace directive that required Mr Tilley to confirm that he had received at least the first dose of a COVID-19 vaccine by 30 September 2021 ('the allegation'). During the show cause process, the Department suspended Mr Tilley from duty on normal remuneration in accordance with s 137(4) of the Public Service Act 2008 (Qld) ('PS Act').
  1. [6]
    By letter dated 23 November 2021, the Department advised Mr Tilley that the allegation was substantiated, that the Department was proposing termination as disciplinary action and provided Mr Tilley with seven days to show cause why the disciplinary action should not be taken. Further, the Department advised Mr Tilley that he would be suspended without remuneration until 1 February 2022, or until the decision maker had an opportunity to consider the matter (including the proposed disciplinary action). 
  1. [7]
    By notice of appeal filed on 1 December 2021, Mr Tilley, appealed the decision of the Department dated 23 November 2021. Mr Tilley relies on the following grounds, relevantly summarised, in support of his appeal:
  1. (a)
    Mr Tilley provided the Department with a fair and reasonable excuse in response to the show cause notice dated 1 November 2021, which included sufficient justification to not comply with Directive 12/21 through legislation, peer reviewed documents, research papers, statistics and other independent sources.
  2. (b)
    The disciplinary process has been extremely stressful, and the impact of the decision will be financially devastating for Mr Tilley as he will have to sell his home and contents and relocate.
  3. (c)
    The Department has disregarded medical and other evidence that a reasonable person would accept.
  4. (d)
    The Department has not addressed Mr Tilley's allegation that authorised persons of the Department have been extremely coercive and invasive of his privacy.
  5. (e)
    The Department was reasonably requested to provide a risk assessment and material safety data information and has failed to provide this information.
  1. [8]
    The appeal is made pursuant to s 197 of 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 Industrial Relations Act 2016 (Qld) ('the IR Act') by the Queensland Industrial Relations Commission.
  1. [9]
    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.[1] 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. [10]
    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.[2] 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.[3]
  1. [11]
    For the reasons contained herein, I have found that the decision was fair and reasonable.

The decision

  1. [12]
    The decision relates to an allegation put by the Department on 1 November 2021 to Mr Tilley regarding his alleged conduct as follows:

In contravention of a direction given to you by a responsible person, you have not provided to your line manager or uploaded into the designated system evidence of vaccination confirming that you have received the prescribed number of doses of a COVID-19 vaccine.

  1. [13]
    The Department provided the following particulars in support of the allegation:
  • On 11 September 2021, Dr John Wakefield PSM, Director-General, Department of Health wrote to all employees of Queensland Health notifying that a mandate was in place which requires all staff working in locations where clinical care is provided to patients to be fully vaccinated against COVID-19.
  • On 14 September 2021, I wrote to all employees of MSH reiterating the requirements of the Directive and providing instructions to employees about what they are required to do to be compliant with the Directive.
  • On 16 September 2021, Dr Wakefield wrote to all employees of Queensland Health confirming that the Directive had been issued and provided information to support employees to be compliant with it, including instructions for employees seeking an exemption from the requirement to be vaccinated against COVID-19.
  • On 16 September 2021, I wrote to all employees of MSH to reiterate the requirements of the Directive and to provide further information to support employees to comply with it.
  • On 21 September 2021, I wrote to all employees of MSH to reiterate the requirements of the Directive and to remind employees of the support available to assist them to comply with it.
  • On 28 September 2021, Dr Wakefield issued all staff with notification of the Directive and their obligations to comply with it. Dr Wakefield’s communication confirmed that employees who are not compliant with the Directive by 1 October 2021 must have applied for an exemption.
  • On 5 October 2021, Dr Wakefield wrote to all Queensland Health employees again to remind them of their obligations under the Directive.
  • On 25 October 2021, Dr Wakefield wrote to all Queensland Health employees again to remind them of their obligations under the Directive.
  • In accordance with clause 8.1 of the Directive, you were required to provide to your line manager or upload into the designated system:
  1. 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; and
  2. 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.
  • You have not provided to your line manager or uploaded into the designated system evidence of vaccination confirming that you have received the prescribed number of doses of a COVID-19 vaccine.

  1. [14]
    On 16 November 2021, Mr Tilley responded to the show cause letter.
  1. [15]
    By letter dated 23 November 2021, the decision maker advised Mr Tilley that the allegation had been substantiated and provided the following reasons for the decision:

I will note from the outset that your response acknowledges that you have not been vaccinated against COVID-19. You do not contend that you are compliant with the requirements of the Health Employment Directive No 12/21 – Employee COVID-19 Vaccination Requirements (the Directive) and you confirm that you have not sought an exemption to the requirements of the Directive.

I note your concerns regarding the Pfizer COVID-19 vaccine however consider that you have had sufficient opportunity to access an extensive range of evidence-based information in relation to the currently available COVID-19 vaccines, including AstraZeneca, both from within and external to Queensland Health. You have had ample opportunity to discuss your concerns with your treating doctor, who is able to provide you with expert guidance.

I have had particular regard to your frontline role working with patients and the increased risk of not only contracting the COVID-19 virus in the healthcare setting but also transmitting it to those most at risk and those most vulnerable to severe disease, which you have acknowledged in your response. Whilst I acknowledge your intent to consider receiving the COVID-19 vaccine in May 2023, the Directive required employees to have received the required dose of an approved COVID-19 vaccine by 31 October 2021.

Based on the information before me, I have determined that Allegation one is substantiated on the balance of probabilities.

On the basis of my finding, I have determined that you are liable to be disciplined as pursuant to section 187(1)(d) of the PS Act, you have contravened, without reasonable excuse, a direction given to you as a public service employee by a responsible person.

  1. [16]
    The decision maker also determined that Mr Tilley would be suspended from duty without remuneration and advised Mr Tilley in the following terms:

I have carefully considered the material before me including your response. I have determined that based on the information before me and in consideration of the nature of the discipline to which you are liable, you should be suspended from duty without remuneration.

The suspension without pay will take effect immediately and will remain in place until 1 February 2022 or until I have had the opportunity to consider the matter further, including your response to the proposed disciplinary penalty.

  1. [17]
    As noted above, it is the decision dated 23 November 2021 which is the subject of the appeal.

Relevant legislation

  1. [18]
    Section 194 of the PS Act provides for decisions against which appeals may be made as follows:

194 Decisions against which appeals may be made

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

(bb) a decision to suspend a public service employee without entitlement to normal remuneration under section 137 (a suspension without pay decision);

  1. [19]
    Section 137 of the PS Act provides for the suspension of a public service employee as follows:

137  Suspension

  1. (1)
    The chief executive of a department may, by notice, suspend a person from duty if the chief executive reasonably believes—
  1. (a)
    for a public service officer—the proper and efficient management of the department might be prejudiced if the officer is not suspended; or
  2. (b)
    for a public service employee—the employee is liable to discipline under a disciplinary law.
  1. (2)
    The notice must state—
  1. (a)
    when the suspension starts and ends; and
  2. (b)
    whether the person is entitled to remuneration for the period of the suspension; and
  3. (c)
    the effect that alternative employment may, under subsection (5), have on any entitlement to remuneration.
  1. (3)
    However, before suspending the person, the chief executive must consider all reasonable alternatives, including alternative duties, a temporary transfer or another alternative working arrangement, that are available to the person.
  2. (4)
    A public service employee is entitled to normal remuneration during a suspension, unless—
  1. (a)
    the person is suspended under subsection (1)(b); and
  2. (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.

  1. (9)
    In suspending a public service employee under this section, the chief executive must comply with—
  1. (a)
    the principles of natural justice; and
  2. (b)
    this Act; and
  3. (c)
    the directive made under section 137A.
  1. [20]
    Section 187 of the PS Act sets out the grounds for discipline and disciplinary action generally as follows:

187 Grounds for discipline

  1. (1)
    A public service employee’s chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has—
  1. (a)
    engaged in repeated unsatisfactory performance or serious under performance of the employee’s duties, including, for example, by performing duties carelessly, incompetently or inefficiently; or
  2. (b)
    been guilty of misconduct; or
  3. (c)
    been absent from duty without approved leave and without reasonable excuse; or
  4. (d)
    contravened, without reasonable excuse, a direction given to the employee as a public service employee by a responsible person; or
  5. (e)
    used, without reasonable excuse, a substance to an extent that has adversely affected the competent performance of the employee’s duties; or

(ea) contravened, without reasonable excuse, a requirement of the chief executive under section 179A(1) in relation to the employee’s appointment, secondment or employment by, in response to the requirement—

  1. (i)
    failing to disclose a serious disciplinary action; or
  2. (ii)
    giving false or misleading information; or
  1. (f)
    contravened, without reasonable excuse, a provision of this Act; or
  2. (g)
    contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action.

  1. [21]
    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 (Qld) ('HHB Act').
  1. [22]
    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. [23]
    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. [24]
    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.
  1. [25]
    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 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. [26]
    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 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. [27]
    Clause 7.1 of Directive 12/21 also includes a table[4] which separates Queensland Health employees into a group number based on their employee cohort. Mr Tilley 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. [28]
    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:
  1. 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. 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. [29]
    Clause 10 of Directive 12/21 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.

Whether the decision was fair and reasonable

  1. [30]
    It is not in dispute that the Department issued a directive to Mr Tilley in the terms of cl 8 of Directive 12/21. Relevantly, Mr Tilley was required to have received at least the first dose of a COVID-19 vaccine by 30 September 2021, and to provide to his line manager, or to upload into the designated system, evidence of having received the vaccine by no later than seven days after having received the vaccine.
  1. [31]
    Further, it is not controversial that Mr Tilley did not provide evidence, in accordance with cl 8 of Directive 12/21, that he had received the first dose of the vaccine by 30 September 2021. Further, Mr Tilley did not apply, pursuant to cl 10 of Directive 12/21, for an exemption from complying with cl 8 of Directive 12/21, prior to 30 September 2021, or at all.
  1. [32]
    Further, at no time prior to 30 September 2021, and indeed, at no time prior to the allegation being put to Mr Tilley by the Department, did he request information that he now raises in this appeal, including a risk analysis, material safety data sheets for vaccines and the terms of the Department's work health and safety policy. If Mr Tilley had sought this information prior to 30 September 2021, there may have been an opportunity for him to satisfy himself regarding his concerns prior to the failure to comply with the directive.
  1. [33]
    It is clear from Mr Tilley's written submissions, and the material put before the decision maker that, Mr Tilley is hesitant to be administered one of the current COVID-19 vaccines. Mr Tilley states that he may consider being vaccinated against COVID-19 after May 2023, depending on certain matters being to Mr Tilley's satisfaction. 
  1. [34]
    Mr Tilley states that in his written response to the show cause process of 16 November 2021, he provided evidence and opinions from a number of sources and has not been provided with responses to the following statements:
  1. (1)
    I consider that such vaccines meet the definition of an “experimental medical procedure” and are still within the manufacturer's stated trial period.
  2. (2)
    The Australian Constitution S. 51 23(a) confers a prohibition against civil conscription in relation to any medical procedure unless active consent is obtained.
  3. (3)
    The proposed procedure includes known carcinogens i.e.  graphene oxide and ethylene oxide.
  4. (4)
    There exists many known and reported adverse reactions to the proposed procedure and that the long term effects are not known.
  5. (5)
    There is evidence of similar viral loads between those subjects who have had the procedure and those who have not.
  6. (6)
    There is evidence of highly “vaccinated” countries now experiencing significant outbreaks of SARS-CoV-2  as well as adverse vaccine reactions.
  7. (7)
    There is government agency evidence to indicate that there are a significant number of adverse vaccine reactions occurring globally specifically the Centre for Disease Control – VAERS report of 5 Nov 2021 which indicates that the average number of deaths for all vaccines for the period of 1990 to 2020 was approximately 500 per annum. The current figure for “death” in 2021 is 18,461.
  8. (8)
    The Australian Government Dept of Health – “Covid-19 vaccine claims scheme” released on 15 Nov 2021 specifically refers to “death” as a known side effect.
  9. (9)
    As death is a known side effect of the procedure you wish me to submit to, would you please provide me with the risk analysis that specifically determined how many actual deaths would make such participation acceptable from the Respondent's viewpoint. In addition please provide a material safety data sheet for the substances in the proposed procedure in terms of the Respondents WHS policy.
  10. (10)
    I have requested confirmation that should I participate in the procedure that the Respondent will indemnify myself, my heirs, assigns and successors against any injury, side effect or death.
  1. [35]
    In relation to Mr Tilley's contention with respect to s 51(xxiiiA) of the Commonwealth of Australia Constitution Act ('the Constitution'), regard must be had to the terms of that provision. Relevantly, s 51(xxiiiA) of the Constitution states:

51. Legislative powers of the Parliament.

The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:—

(xxiiiA) The provision of maternity allowances, widows' pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorize any form of civil conscription), benefits to students and family allowances:

  1. [36]
    This provision of the Constitution appears to relate to the Commonwealth's power to make laws regarding the provision of, inter alia, medical services. The civil conscription limitation appears to relate to those who provide the, inter alia, medical services. In Wong v Commonwealth of Australia and Anor, Selim v Lele, Tan and Rivett constituting the Professional Services Review Committee No 309[5] the High Court, in considering s 51 (xxiiiA) of the Constitution, relevantly held:[6]

The legislative history and the genesis of s 51(xxiiiA) supports a construction of the phrase "(but not so as to authorize any form of civil conscription)" which treats "civil conscription" as involving some form of compulsion or coercion, in a legal or practical sense, to carry out work or provide services; the work or services may be for the Commonwealth itself or a statutory body which is created by the Parliament for purposes of the Commonwealth; it also may be for the benefit of third parties, if at the direction of the Commonwealth.[footnotes omitted].

  1. [37]
    Accordingly, I do not consider that s 51(xxiiiA) of the Constitution is relevant to the circumstances of this matter as it relates to the provision of, inter alia, medical services, rather than the receipt of such services by an individual. Further, I do not consider that s 51(xxiiiA) of the Constitution is relevant to this matter as it relates to the Commonwealth's power to make such laws and does not cover the responsibilities of the State.
  1. [38]
    In this matter, the relevant legislative scheme empowers the Department to issue health employment directives about the conditions of employment for health service employees. Directive 12/21 makes it a condition of Mr Tilley's employment to be vaccinated unless an exemption is granted. Accordingly, I consider Directive 12/21 to be lawful.
  1. [39]
    The other matters, referred to above, raised by Mr Tilley form the basis of his personal preference not to receive a vaccine. I do not consider the matters relied on by Mr Tilley result in Directive 12/21 being unreasonable. In this regard, cl 6 of Directive 12/21 identifies the risk posed by the virus to staff, patients and the broader community and the Directive is aimed at minimising such a risk. I consider that to be reasonable.
  1. [40]
    Accordingly, I consider that the directive issued to Mr Tilley by his employer to be reasonable in the circumstances. 
  1. [41]
    Mr Tilley raised concerns regarding the vaccines and proffered research he seemingly conducted himself during the course of the show cause process. The decision maker had regard to these matters and concluded as follows:

I note your concerns regarding the Pfizer COVID-19 vaccine however consider that you have had sufficient opportunity to access an extensive range of evidence-based information in relation to the currently available COVID-19 vaccines, including AstraZeneca, both from within and external to Queensland Health. You have had ample opportunity to discuss your concerns with your treating doctor, who is able to provide you with expert guidance.

  1. [42]
    Whilst Mr Tilley clearly has a personal view with respect to the vaccines and relies on information that purportedly supports his view, it is not incumbent upon the Department to accept Mr Tilley's view. The information proffered by Mr Tilley does not persuade me that Directive 12/21 was not reasonable and lawful.
  1. [43]
    Mr Tilley was given notice about the requirements to comply with the directive on several occasions. Once in force, the requirements of cl 8 of Directive 12/21 became a condition of Mr Tilley's employment. Mr Tilley did not seek an exemption pursuant to cl 10 of Directive 12/21 at any time. Accordingly, I consider that it was open on the evidence before the decision maker to find that the allegation was substantiated.
  1. [44]
    In terms of the process, Mr Tilley was advised of the allegation and provided with an opportunity to respond. I consider that the decision maker did have regard to Mr Tilley's written response. Further, Mr Tilley was provided with an opportunity to respond to the proposal that he be suspended without remuneration. I am satisfied that the decision maker had regard to Mr Tilley's submissions before determining that Mr Tilley be suspended without remuneration.
  1. [45]
    Mr Tilley rejects the Department's submission that, prior to suspension, it considered alternative working arrangements as required by s 137(3) of the PS Act. A review of the decision identifies that the decision maker did have regard to such matters. Relevantly, the decision states:

Section 137(3) of the PS Act provides that before suspending an employee, consideration must be given to all reasonable alternatives that may have been available for you to perform.

I have considered whether there are any reasonable alternatives to suspending you from duty including alternative duties, a temporary transfer (either in your current workplace or another workplace) or another alternative working arrangement, or asking you if you wish to access accrued recreation and/or long service leave. In considering this, I have undertaken an assessment of the allegation, the intent of the Directive, and your role within MSH and whether your continuation in the role or another role presents any potential risk to the employees, patients and visitors of MSH.

I do not consider the alternative duties or a temporary transfer or other alternative working arrangements to be available or appropriate in the current circumstances having regard to the risks posed by the COVID-19 virus, as well as workplace health and safety obligations on both the organisation, employees and patients.

  1. [46]
    I am satisfied the Department considered alternative working arrangements for Mr Tilley. I consider that the view formed that there were no alternative working arrangements available for Mr Tilley to perform was a decision open to be made, having regard to the Department's responsibility to manage the risks associated with COVID-19 in the workplace which is frequented by employees, patients and the broader community.
  1. [47]
    Finally, Mr Tilley relies on the financial impact of suspension without remuneration as a ground to argue that the decision was not fair and reasonable. There is no doubt that Mr Tilley will suffer a financial detriment associated with the loss of income. I consider that to be a serious matter. However, it must be considered in the context of all the relevant circumstances of the matter.
  1. [48]
    The circumstances of this matter include, Mr Tilley failing to comply with a directive which consequently formed a condition of his employment. Further, Mr Tilley's submission indicates that he does not intend to comply with the condition in the immediate future. Given the nature of the substantiated allegation, I consider that it was available, on the information before the decision maker, to conclude that it was not appropriate for Mr Tilley to receive remuneration during the remainder of the disciplinary process. The Department confirms in its written submissions that Mr Tilley is not precluded from seeking alternative employment with another employer. I am satisfied that in making the decision, the Department has complied with s 137 of the PS Act.
  1. [49]
    For the above reasons, I consider that the decision and the decision-making process was fair and reasonable.
  1. [50]
    For completeness, I will address matters raised by Mr Tilley in his submissions in reply with respect to exemptions.
  1. [51]
    As noted above, cl 10 of Directive 12/21 provides that an exemption application will be considered where, inter alia, an existing employee has a recognised medical contraindication and where another exceptional circumstance exists. Relevantly, Mr Tilley contends the following:
  1. (a)
    that he has previously advised the Department that he has a family history 'of males having cardiac arrest causing death', but that he did not seek the exemption as he 'did not understand how he could prove it'; and
  2. (b)
    that the 'matter of death being a known side effect' of the vaccine is relevant to the consideration of an exemption where another exceptional circumstance exists.
  1. [52]
    On the material before me, there is no evidence to suggest that Mr Tilley has sought an exemption in accordance with cl 10 of Directive 12/21. Indeed, his submission was that he did not do so as he did not understand how he could prove he had a recognised medical contraindication.
  1. [53]
    The fact that Mr Tilley now seeks to raise matters that may potentially have been considered, had he made an application for an exemption in accordance with cl 10 of Directive 12/21, are not relevant to my consideration of whether the decision of 23 November 2021 was fair and reasonable.
  1. [54]
    For the foregoing reasons, I have determined that the decision of 23 November 2021, which encompassed a decision substantiating the allegation and a decision suspending Mr Tilley from his employment without remuneration to be fair and reasonable.

Order

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

Footnotes

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

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

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

[4] Table 1.

[5] [2009] HCA 3.

[6] Ibid [60].

Close

Editorial Notes

  • Published Case Name:

    Tilley v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Tilley v State of Queensland (Queensland Health)

  • MNC:

    [2022] QIRC 2

  • Court:

    QIRC

  • Judge(s):

    Hartigan IC

  • Date:

    07 Jan 2022

Appeal Status

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

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