Richter v State of Queensland (Queensland Health)
[2022] QIRC 210
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- Unreported Judgment
- Richter v State of Queensland (Queensland Health)[2022] QIRC 210
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Richter v State of Queensland (Queensland Health)[2022] QIRC 210
Richter v State of Queensland (Queensland Health)[2022] QIRC 210
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Richter v State of Queensland (Queensland Health) [2022] QIRC 210 |
PARTIES: | Richter, Kari (Appellant) v State of Queensland (Queensland Health) (Respondent) |
CASE NO.: | PSA/2022/356 |
PROCEEDING: | Public Service Appeal – Fair Treatment Decision |
DELIVERED ON: | 13 June 2022 |
MEMBER: | Power IC |
HEARD AT: | On the papers |
ORDER: | Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld):
|
CATCHWORDS: | PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – Public Service Appeal – where the Health Employment Directive No. 12/21– Employee COVID-19 vaccination requirements required employees who are employed to work in a hospital or other facility where clinical care or support is provided must have received at least a first dose of a COVID–19 vaccine by 30 September 2021 and must have received the second dose of a COVID-19 vaccine by 31 October 2021 – appellant sought an exemption – exemption was refused – internal review decision did not provide adequate reasons for refusal in compliance with Individual employee grievances Directive 11/20 – decision not fair and reasonable |
LEGISLATION: | Hospital and Health Boards Act 2011 (Qld), s 51A Industrial Relations Act 2016 (Qld), ss 562B and 562C Public Service Act 2008 (Qld), s 194 |
CASES: | Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245 Elliott v State of Queensland (Queensland Health) [2022] QIRC 139 Gilmour v Waddell & Ors [2019] QSC 170 Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018) Graffunder v State of Queensland (Queensland Health) [2022] QIRC 76 Higgins v State of Queensland (Queensland Health) [2022] QIRC 030 |
Reasons for Decision
Introduction
- [1]Ms Kari Richter ('the Appellant') is employed by the State of Queensland (Queensland Health) ('the Respondent') as a Nurse Navigator, Medical Services Group at the Nambour General Hospital within Sunshine Coast Hospital and Health Service ('SCHHS') since 22 November 2010.
- [2]On 21 September 2021, the Appellant submitted an 'Employee COVID-19 vaccine exemption application form' (the 'exemption application'), seeking an exemption from obtaining any COVID-19 vaccination based on medical contraindication and other exceptional circumstances in accordance with the Health Employment Directive 12/21 regarding employee COVID-19 vaccination requirements ('the Directive'). The Appellant provided a statutory declaration in support of the exemption application, stating that the Appellant has a chronic genetic degenerative medical condition, namely, Charcot Marie Tooth Disease ('CMTD').
- [3]By letter dated 6 January 2022, Mr Warren Campbell, Acting Director HR Operations, SCHHS, advised the Appellant that her exemption application was refused. The Appellant was directed to comply with the Directive to receive the required dose of a COVID-19 vaccination and provide confirmation of compliance within seven days from receipt of the letter.
- [4]By letter dated 11 January 2022, the Appellant requested an internal review of the decision to refuse the Appellant's exemption application.
- [5]By letter dated 9 February 2022, Mr Andrew Leggate, Acting Chief Information and Infrastructure Officer, SCHHS, confirmed the decision to refuse the Appellant's exemption application.
- [6]On 3 March 2022, the Appellant filed an appeal notice, appealing against the decision of Mr Leggate dated 9 February 2022. Whilst the Appellant indicates in the appeal notice that she is appealing against a decision made under a directive, this Commission has recently held on several occasions, and I agree, that the Directive does not allow for employees to appeal.[1] The nature of the decision appealed against is more appropriately characterised as a fair treatment decision, a decision which the Appellant considers unfair and unreasonable. Accordingly, I will proceed to determine this appeal as a fair treatment appeal, pursuant to s 194(1)(eb) of the Public Service Act 2008 (Qld).
Appeal principles
- [7]The appeal must be decided by reviewing the decision appealed against.[2] Because the word 'review' has no settled meaning, it must take its meaning from the context in which it appears.[3] An appeal under ch 11 pt 6 div 4 of the Industrial Relations Act 2016 (Qld) ('the IR Act') is not by way of rehearing,[4] but involves a review of the decision arrived at and the decision making process associated therewith.
- [8]The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.[5] The issue for determination is whether the decision of Mr Leggate dated 9 February 2022 to confirm the decision to refuse the Appellant's exemption application was fair and reasonable. Findings which are reasonably open to the decision maker are not expected to be disturbed on appeal.
What decisions can the Industrial Commissioner make?
- [9]In deciding this appeal, s 562C of the IR Act provides that the Industrial Commissioner may:
- (a)confirm the decision appealed against; or
- (b)set the decision aside and substitute another decision; or
- (c)set the decision aside and return the issue to the decision maker with a copy of the decision on appeal and any directions considered appropriate.
The Directive
- [10]On 11 September 2021, pursuant to s 51A of the Hospital and Health Boards Act 2011 (Qld) ('HHB Act'), the Chief Executive of the Respondent issued the Directive.
- [11]Clause 1 of the Directive provides that compliance with the Directive is mandatory. Clause 4 of the Directive provides that the Directive applies to all health service employees and prospective employees employed under the HHB Act.
- [12]Clause 8.1 of the Directive provides:
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 HED.
- [13]Clause 10.2 of the Directive provides an exemption application will be considered where the employee has a recognised medical contraindication, the employee has a genuinely held religious belief or where another exceptional circumstance exists.
Grounds of Appeal
- [14]The Appellant outlined the following reasons for appeal, that:
- (a)neither the Directive nor the decision makers' letters give any indication as to what constitutes an exceptional circumstances;
- (b)no weight is given to CMTD being a sub-group of medical conditions about which there is insufficient information regarding the impact of the COVID-19 vaccination;
- (c)it is unfair and unreasonable not to indicate the circumstances which may be considered exceptional and to require the Appellant to receive a COVID-19 vaccination when its impact on CMTD is unknown; and
- (d)it is unfair and unreasonable that the decision makers gave no consideration to the fact that the Bariatric Care, Nurse Navigator operates across the whole SCHHS such that:
- (i)the Appellant frequently liaise with patients via telehealth, email and telephone;
- (ii)a large component of the role entails facilitating health service systems improvement;
- (iii)at the time the Directive was implemented, the Appellant had been undertaking the Nurse Navigator role remotely as part of a return to work plan after a workplace injury and as such, have the necessary technical equipment to enable the Appellant to work in any location; and
- (iv)the role could be undertaken with minimal contact with patients, their families and other stakeholders.
Submissions
- [15]The Commission issued a Directions Order calling for submissions from both parties following receipt of the appeal notice. The submissions are summarised below.
Respondent's submissions
- [16]The Respondent submits that the decision to confirm the refusal of the Appellant's exemption application was fair and reasonable. The Respondent submits, in summary, that:
- (a)throughout the exemption process, the Appellant did not submit evidence of a recognised medical contraindication reported to the Australian Immunisation Register;
- (b)Mr Campbell advised that a determination was made by a departmental medical expert that an exemption was unable to be provided as the Appellant's medical conditions were not a recognised medical contraindication precluding vaccination with a COVID-19 vaccine and would not constitute an exceptional circumstance for the purposes of providing the Appellant with an exemption;
- (c)Mr Leggate properly considered the Appellant's exemption application by weighing against the objects and requirements of the Directive. The decision to confirm the refusal of the Appellant's exemption application was on the basis of the high level of risk to the health and wellbeing of patients, colleagues and other key stakeholders who access services from the Nambour General Hospital and SCHHS;
- (d)Mr Leggate determined there was no other less restrictive means, other than vaccination, which would sufficiently ensure the safety of the Appellant, other staff and patients;
- (e)the Appellant's human rights were taken into account and Mr Leggate determined any limitation to her human rights was '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';
- (f)it was not feasible to grant the Appellant's request to access her leave at half pay as SCHHS could not operationally support the Appellant remaining on leave indefinitely. Further, the Appellant's sole basis for requesting leave for up to two years was to avoid compliance with the Directive. Seeking to avoid compliance with a reasonable and lawful direction issued to an employee is not a legitimate basis for requesting leave; and
- (g)it was reasonably open to Mr Leggate to determine the Appellant's circumstances did not justify the approval of an exemption. Mr Leggate did not dispute that the Appellant had the medical conditions reported. However, in the absence of a recognised medical contraindication reported to the Australian Immunisation Register, it was not incumbent upon the Respondent to accept the Appellant's circumstances outweighed other factors that must be considered, including the public health risk of COVID-19.
- [17]The Respondent submits the nature of the Appellant's role presents a high degree of risk to herself, other Nambour General Hospital staff and the community with respect to COVID-19 transmission, highlighting the following in particular:
a) Ms Richter's workplace is the Nambour General Hospital. Any health service facility is a high-risk location with respect to COVID-19 transmission;
b) as part of her role, Ms Richter is required to physically attend the Nambour General Hospital to undertake her professional duties. She cannot perform her role remotely on a permanent basis.
c) An alternative arrangement is not an exceptional circumstance warranting exemption approval. Further, even if it were possible for her to perform her duties remotely, there will inevitably be times when Ms Richter is required to attend Nambour General Hospital and intermingle with other staff members; and
d) the purpose of the role of Nurse Navigator is to help patients navigate the complex healthcare system. It is an essential element of the role of Nurse Navigator that a person can build a rapport with patients to foster and encourage active consumer engagement. While some of the duties can be done remotely, there is an expectation a Nurse Navigator will interact with patients on a face to face basis.
Appellant's submissions
- [18]The Queensland Nurses and Midwives' Union of Employees ('QNMU') provided submissions on behalf of the Appellant. The QNMU submits that the effective and efficient undertaking of the Nurse Navigator role is not dependent on the specific location of the employee undertaking the role because the purpose of the role is to assist consumers and their carers with systemic obstacles in healthcare service provision.
- [19]In response to the Respondent's submission that the Appellant did not provide medical evidence of a recognised medical contraindication reported to the Australian Immunisation Register, the QNMU submits that an exemption was sought on the basis of the exceptional circumstance of having the neuro-degenerative condition, CMTD.
- [20]With respect to the Respondent's reference to a determination made by a 'departmental medical expert', the QNMU submits that:
- (a)the long-term impact of the newly developed COVID-19 vaccines on her CMTD are unknown, so a negative response or impact from the COVID-19 vaccine cannot be ruled out; and
- (b)the current information regarding CMTD indicates continued uncertainties regarding a number of medications.
- [21]The QNMU submits that the Appellant's general practitioner supports her exemption application for an initial six months to allow further investigation into the potential impact of the COVID-19 vaccination. Further, the Appellant attended a Neurology telehealth outpatient appointment at the Royal Brisbane and Women's Hospital on 7 April 2022 and was advised the Neurologist would provide a medical opinion regarding the suitability of her having the COVID-19 vaccination. However, to date, the written opinion has not been provided.
- [22]The QNMU highlights that the Appellant is dependent on the public health system and has been unsuccessful in obtaining a time frame for the provision of the relevant documentation. The QNMU submits that due to the uncertainty of the public health system timeframe, the Appellant's general practitioner has referred her to a private practising immunologist for assessment and professional opinion as to whether the Appellant should be exempt from having the COVID-19 vaccine. The Appellant was advised that a number of appointments and tests may be required to undertake the assessment and formulate a professional opinion.
- [23]The QNMU disputes the Respondent's submission that it is not feasible for the Appellant to access leave on half pay and submits that it would be fair and reasonable to allow her to take long service leave on half pay to allow these further investigations to take place and to grant her the exemption at least for this period during which she would not be in the workplace.
- [24]The QNMU acknowledges the purpose of the Directive is to reduce the risk to employees and consumers, however, contends it is not fair and reasonable not to grant the Appellant an exemption while medical investigations are being undertaken to determine if the Appellant is at greater risk by having the COVID-19 vaccination.
- [25]The QNMU disputes the Respondent's submissions regarding the Appellant's nature of work, and submits the following:
a. Her workplace has been, and could continue to be, in any number of locations other than Nambour General Hospital. The Bariatric Care Nurse Navigator roles is, in fact, under restructure such that the location and duties are uncertain.
b. On occasions when the Applicant is required to physically attend a health facility, she can undertake other safety measures which have been in place since the onset of the pandemic, such as physical distancing, personal protective equipment and attend to hand hygiene.
c. Assisting consumers to navigate the complex healthcare system does not always require physical face-to-face contact. Such face-to-face contact is frequently undertaken by means of telehealth and other remote communication systems.
Respondent's submissions in reply
- [26]In reply, the Respondent accepts that the Appellant can perform her duties over a number of locations, however, maintains that the Appellant is required to be able to attend a hospital or other facility. The Respondent further highlights that the Appellant is not lawfully permitted to perform work as a worker in a hospital or healthcare setting while she remains unvaccinated.
- [27]The Respondent acknowledges the steps taken by the Appellant in attempting to obtain evidence of medical contraindication, however, the Respondent submits that the Appellant also appears to be asking to be excused from the requirement to receive a COVID-19 vaccine for an unspecified period of time. Consequently, the Respondent submits that it is not known at what future point the Appellant will feel comfortable in receiving a COVID-19 vaccination, noting that it has been six months since the Appellant applied for an exemption.
- [28]The Respondent highlights the Appellant's submission that the assistance the Appellant provides to consumers and carers by telehealth, email and telephone is frequent, however, does not submit that all of the Appellant's duties can be provided by such means. The Respondent submits that it is not operationally feasible for the Appellant to perform 100% of her duties at home on a permanent or indefinite basis and would be impracticable where the Appellant's usual workplace is at the Nambour General Hospital.
- [29]The Respondent reiterates that is it not operationally possible for the Appellant to be permitted to take a period of indefinite leave as employers and employees require certainty around an employee's absence from the workplace.
Consideration
- [30]Consideration of an appeal of this kind requires a review of the decision by Mr Leggate to determine if the decision is fair and reasonable.
- [31]The Appellant applied for an exemption from compliance with the Directive's requirement to receive a COVID-19 vaccination on the basis of 'medical contraindication' and 'other exceptional circumstances'.
- [32]In order to consider whether the decision of Mr Leggate was fair and reasonable, it is necessary to have regard to the reasons provided for his decision.
- [33]Clause 9.2(h) of the Individual employee grievances Directive 11/20 ('Directive 11/20') provides that upon completion of an internal review, a written decision must be provided to the employee that outlines, inter alia, the reasons for the decision.
- [34]The decision in this matter outlines the documentation considered and provides a chronology of the matter, before stating:
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 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.
- [35]The reasons provided in the decision do not disclose why the decision was made or demonstrate how particular matters were considered. The reasons do not deal with the matters raised by the Appellant, particularly the specific reasons the Appellant sought a review of the exemption decision. The reasons do not demonstrate consideration of the Appellant's submissions or disclose the basis upon which the decision was made in any meaningful way.
- [36]The consequence of the failure to provide adequate reasons is that the Commission cannot determine what regard was had to the Appellant's submissions in conducting the internal review. I accept that the Respondent's submissions attempt to provide an explanation for the decision, however such explanations are not included in the reasons for the decision.
- [37]On the basis that the decision does not comply with the requirements of clause 9.2(h)(ii) of Directive 11/20, I have determined that the decision is not fair and reasonable.
- [38]I note that the Appellant submitted a medical certificate dated 26 April 2022 in support of her appeal from a consultant neurologist, Professor Pamela McCombe. This certificate was obtained after the review decision was made by Mr Leggate, however in the interests of fairness this document should be considered as part of the fresh review.
Order
- [39]I make the following orders:
Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld):
- (a)the decision is set aside;
- (b)the matter is returned to a new decision maker with a copy of this decision on appeal; and
- (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 24 June 2022.
Footnotes
[1] See e.g. Higgins v State of Queensland (Queensland Health) [2022] QIRC 030, [12]; Graffunder v State of Queensland (Queensland Health) [2022] QIRC 76, [16]; Elliott v State of Queensland (Queensland Health) [2022] QIRC 139.
[2] Industrial Relations Act 2016 (Qld) s 562B(2) ('IR Act').
[3] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261.
[4] Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5 as to the former, equivalent provisions in s 201 of the Public Service Act 2008 (Qld).
[5] IR Act s 562B(3).