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  4. Lamb v State of Queensland (Queensland Health) - [2022] QIRC 237

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Lamb v State of Queensland (Queensland Health)[2022] QIRC 237

Lamb v State of Queensland (Queensland Health)[2022] QIRC 237

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Lamb v State of Queensland (Queensland Health) [2022] QIRC 237

PARTIES:

Lamb, Kym

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

PSA/2022/384

PROCEEDING:

Public Service Appeal – Appeal against a decision under a directive

DELIVERED ON:

21 June 2022

MEMBER:

HEARD AT:

Hartigan IC

On the papers

ORDER:

  1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed.
  1. Pursuant to s 566(1)(b) of the Industrial Relations Act 2016 (Qld), the stay of the decision issued on 22 March 2022 is revoked.

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL – appeal against a decision under a directive – where appellant sought an exemption from compliance with the Health Employment Directive No 12/21 – Employee COVID-19 vaccination requirements ('the Directive') on the basis of other exceptional circumstances – where appellant stated in exemption application that she had 'health issues' – where appellant did not provide supporting medical documentation – where respondent rejected appellant's application for an exemption on the basis of other exceptional circumstances on the ground that the appellant does not have a recognised medical contraindication – where appellant has not produced  any evidence in support of her exemption application – where decision fair and reasonable in circumstances where the appellant has not provided any supporting medical evidence or documentation for the decision maker to consider – where decision appealed against confirmed – where stay of decision revoked

LEGISLATION:

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

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

Public Service Act 2008 (Qld), s 187, s 194

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

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

CASES:

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

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

Reasons for Decision

Introduction

  1. [1]
    Ms Kym Lamb is employed by the State of Queensland (Queensland Health) ('the Department'), as an Administration Officer (AO3), Transition Services at the Nambour General Hospital within the Sunshine Coast Hospital and Health Service ('SCHHS').
  1. [2]
    Ms Lamb has been employed by the Department since July 2014.
  1. [3]
    On 11 September 2021, the Department issued the Health Employment Directive No 12/21 – Employee COVID-19 vaccination requirements ('the Directive'), which requires certain categories of employees to have received two doses of a COVID-19 vaccine and provide their line manager with evidence of confirmation of vaccination.[1] Relevantly, Ms Lamb falls within one of those categories of employees.
  1. [4]
    On 30 September 2021, Ms Lamb applied for an exemption from the Directive on the grounds of other exceptional circumstances. In the exemption application, Ms Lamb stated that she has underlying 'health issues' and was awaiting advice from her general practitioner and results from her specialist but did not attach to the exemption application any supporting documentation or material.
  1. [5]
    By letter dated 31 January 2022, the Department determined to refuse Ms Lamb's application for exemption. Ms Lamb requested an internal review of this decision on 15 February 2022 and advised the Department in her request that she was still seeking medical advice with respect to her health issues.
  1. [6]
    By letter dated 24 February 2022, the Department advised Ms Lamb that it had confirmed the decision dated 31 January 2022 and that her application for exemption on the basis of other exceptional circumstances had been refused ('the decision'). The Department directed Ms Lamb to receive the required dose of a COVID-19 vaccination and provide written confirmation that she had received the required dose within 14 days of receipt of the decision ('the direction'). The Department further advised Ms Lamb that should she fail to follow the direction, she may be liable for disciplinary action pursuant to s 187(1)(d) of the Public Service Act 2008 (Qld) ('the PS Act').
  1. [7]
    By appeal notice filed in the Industrial Registry on 18 March 2022, Ms Lamb appealed the decision of the Department.
  1. [8]
    On 22 March 2022, the Commission ordered that the decision the subject of the appeal be stayed until further determination of the appeal or further order of the Commission pursuant to s 566(1) of the Industrial Relations Act 2016 (Qld) ('the IR Act'). The Commission also ordered the parties to file written submissions in support of their position with respect to the appeal.
  1. [9]
    Ms Lamb did not file written submissions in accordance with the directions, and instead sent a large number of emails to the Industrial Registry, which appeared to be internal correspondence between herself and the Department in relation to the matter. Accordingly, the matter was listed for mention on 21 April 2022 to hear from Ms Lamb with respect to her non-compliance with the directions.
  1. [10]
    During the mention, Ms Lamb advised that she was unable to comply with the directions as she was 'reliant on other parties to gather some of my information',[2] and also advised that she was under the impression she had been granted an extension. In relation to Ms Lamb awaiting on information from other parties, Ms Lamb made the following submissions:[3]

I’m trying to get some clinical information. Because once I was getting – starting to get tests on some of my health issues before COVID, before mandates, before vaccination or that, and because I haven’t – that’s why I applied for the exemption, originally, is because I hadn’t received any information, and I still have not received any information, which is why I could not submit any information at the time of applying for the exemption.

  1. [11]
    Ms Lamb further advised she was still waiting on the outcome of the clinical testing and was unable to provide any certainty as to when it would be received. I determined that the matter should not be further adjourned to await receipt of material that Ms Lamb had been unable to produce since at least 30 September 2021. Following the mention, further directions were issued to the parties for the filing of written submissions.
  1. [12]
    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 IR Act by the Queensland Industrial Relations Commission.
  1. [13]
    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.[4] 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. [14]
    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.[5] 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.[6]
  1. [15]
    For the reasons contained herein, I have found that the decision was fair and reasonable.

The decision

  1. [16]
    In the decision, the decision maker ultimately determined that the delegate had undertaken the appropriate steps and consideration in relation to Ms Lamb's mandatory vaccination exemption request and confirmed the decision of the delegate dated 31 January 2022.
  1. [17]
    The decision maker provided the following reasons in support of the decision:

My decision

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

I confirm the lawful direction of Mr Warren Campbell, A/Director HR Operations, in his letter dated 31 January 2022. As you have not received the required dose of a COVID-19 vaccine, in accordance with the Directive and do not have an approved exemption, I am directing you to comply with the Directive.

…

  1. [18]
    The decision maker also acknowledged the effect of the decision on Ms Lamb's human rights as follows:

Human Rights considerations

I acknowledge that my decision engages or limits a number of your human rights, including your right to equality and non-discrimination and your right not to receive medical treatment without consent. I am satisfied that those limits on human rights are justified by the need to ensure the readiness of the health system in responding to the COVID-19 pandemic, and to protect the lives of employees, patients and the community they serve.

  1. [19]
    The decision maker provided a non-exhaustive list of the documentation it considered when undertaking the review and noted that Ms Lamb advised she had been and was continuing to seek specialist advice, however confirmed that Ms Lamb did not provide any further supporting documentation.

Relevant legislation and Directive

  1. [20]
    Section 194 of the PS Act provides for decisions against which appeals may be made and relevantly includes:

194 Decisions against which appeals may be made

  1. (1)
    An appeal may be made against the following decisions –
  1. (a)
    a decision to take, or not take, action under a directive;

…

  1. [21]
    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
  1. (b)
    been guilty of misconduct; or
  1. (c)
    been absent from duty without approved leave and without reasonable excuse; or
  1. (d)
    contravened, without reasonable excuse, a direction given to the employee as a public service employee by a responsible person; or
  1. (e)
    used, without reasonable excuse, a substance to an extent that has adversely affected the competent performance of the employee’s duties; or
  1. (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
  1. (ii)
    giving false or misleading information; or
  1. (a)
    contravened, without reasonable excuse, a provision of this Act; or
  2. (b)
    contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action.

…

  1. [22]
    The Directive sets out the mandatory vaccination requirements for all current and prospective health service employees employed under the Hospital and Health Boards Act 2011 (Qld) ('HHB Act').
  1. [23]
    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. [24]
    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. [25]
    Clause 1 of the Directive provides that compliance with the Directive is mandatory. Clause 2 provides that the purpose of the Directive is to outline COVID-19 vaccination requirements for existing and prospective employees employed in the identified high-risk groups designated in the Directive.
  1. [26]
    Clause 6 of the Directive identifies the potential risk posed to relevant employees, and the risk profile of those employees as follows:

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

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

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

  • They are working in an area with suspected or confirmed COVID-19 patients or an area that a COVID-19 patient may enter.
  • They are coming into direct or indirect contact with people who work in an area with COVID-19 patients or an area that a suspected or actual COVID-19 patient may enter.
  • They are unable to observe public health requirements (e.g. physical distancing, working in areas of high population density, rapid donning/doffing of personal protective equipment (PPE) in emergent situations).
  • They have the potential to expose patients, clients, other staff or the broader community to the virus (e.g. occupying shared spaces such as lifts, cafeterias, car parks, with people working with suspected or actual COVID-19 patients).
  1. [27]
    Clause 7 of the Directive sets out the requirements for vaccination. Relevantly, cl 7.1 states:

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

  1. [28]
    Clause 7.1 of the Directive also includes a table[7] which separates Queensland Health employees into a group number based on their employee cohort. Ms Lamb 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. [29]
    Clause 8 of the Directive sets out the mandatory vaccine requirements for existing employees as follows:

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

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.
  1. [30]
    Clause 10 of the Directive provides that where an employee is unable to be vaccinated, an exemption may be granted as follows:

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

10.2 Exemptions will be considered in the following circumstances:

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

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

  1. [31]
    Individual employee grievances (Directive 11/20) ('Directive 11/20') provides principles and procedures for managing and resolving individual employee grievances. Clause 9.2 of Directive 11/20 provides for internal reviews and relevantly states:
  1. (a)
    If an employee is dissatisfied with a decision made through local action, the employee may make a written request to the agency chief executive for an internal review.
  2. (b)
    A request for an internal review must:
  1. (i)
    be received by the chief executive within 14 days of the employee receiving a copy of the decision made through local action or a decision is taken be made under clause 9.1(e)
  2. (ii)
    clearly state the reasons for dissatisfaction with the decision made through local action, and not merely state a belief that the decision made through local action was unfair and unreasonable, and
  3. (iii)
    state the action the employee believes would resolve the grievance.
  1. (c)
    Once an agency receives a request for an internal review, the agency must notify the employee in writing:
  1. (i)
    that the request for an internal review has been received by the agency
  2. (ii)
    of the name and contact information for a contact person for the internal review, and
  3. (iii)
    of the 14 day timeframe for making a decision in clause 9.2(f).
  1. (d)
    An internal review is to be completed by the chief executive or their delegate. The chief executive or delegate is to determine whether the decision made through local action was fair and reasonable in the circumstances.
  2. (e)
    If the chief executive or delegate is satisfied that:
  1. (i)
    the reasons for seeking an internal review are insufficient
  2. (ii)
    the request for internal review is frivolous or vexatious, or
  3. (iii)
    the employee has unreasonably refused to participate in local action to resolve the individual employee grievance

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

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

Whether the decision was fair and reasonable

  1. [32]
    As noted above, the role of the Commission in appeal such as this, is to conduct a review of the decision to determine whether it is fair and reasonable.
  1. [33]
    Ms Lamb submits that the decision is not fair and reasonable on the following grounds, as relevantly summarised:
  1. (a)
    Ms Lamb was undergoing medical investigations and awaiting advice at the time of the exemption application and is currently still undergoing medical investigations so that she can make an informed decision about the potential effects of the COVID-19 vaccine;
  1. (b)
    throughout the exemption process, Ms Lamb did not receive any communication or guidance from the 'appropriate parties' to discuss her 'situation', nor has she been made aware of any guidelines, policies, or procedures;
  1. (c)
    Ms Lamb queries how the decision can be 'properly considered' if there has been no communication with her and her matter has not been considered on an individual case-by-case basis;
  1. (d)
    Ms Lamb is unable to provide supporting documentation as she is waiting on 'other parties' for the documentation; and
  1. (e)
    Ms Lamb's building is in a separate building to the main Nambour General Hospital and there are other areas at the hospital site that she could have been isolated in whilst still undertaking her duties; and
  1. (f)
    Ms Lamb submitted a work from home proposal which was never discussed, nor was the option of redeployment discussed.
  1. [34]
    Ms Lamb's further written submissions dated 12 and 17 May 2022 include a number of statements regarding what she considers to be unfair and unreasonable about the exemption application, the decision and decision - making process and this appeal which I will consider further below.

The decision

  1. [35]
    In order to determine whether the decision was fair and reasonable, regard will be had to the reasons provided by the decision maker.
  1. [36]
    As noted above, cl 9.2(h) of Directive 11/20 provides that on the completion of an internal review, a written decision must be provided to the employee that outlines the reasons for the decision.
  1. [37]
    After setting out a chronology of the review process, and noting that Ms Lamb did not provide any further supporting documentation, notwithstanding she advised the Department she was seeking specialist advice, the decision maker provided the following reason for the decision (which I will repeat here for ease of reference):

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

I confirm the lawful direction of Mr Warren Campbell, A/Director HR Operations, in his letter dated 31 January 2022. As you have not received the required dose of a COVID-19 vaccine, in accordance with the Directive and do not have an approved exemption, I am directing you to comply with the Directive.

  1. [38]
    The Department contends that the decision to confirm the refusal of Ms Lamb's exemption application was fair and reasonable and made the following submissions in support of the decision:
  1. The decision to confirm the refusal of Ms Lamb's exemption application was fair and reasonable. Mr Leggate properly considered Ms Lamb's exemption request. Mr Leggate carefully considered Ms Lamb's circumstances and weighed these against the objects and requirements of HED 12/21, noting the high level of risk to the health and wellbeing of patients, colleagues and other key stakeholders who access services from SCHHS. On this basis, Mr Leggate confirmed the decision to refuse Ms Lamb's exemption request.
  2. HED 12/21 is based on the Chief Health Officer's directions regarding workers in healthcare settings. Noting the Chief Health Officer is the most senior medical officer in the State, HED 12/21 is both lawful (being issued under section 51 A of the Hospital and Health Boards Act 2011) and reasonable.
  3. Exemption applications are considered on an individual basis and weighed against the Department's health and safety obligations and will only be approved in exceptional circumstances having regard to the public health risk posed by COVID-19. Ms Lamb did not provide any specific evidence that would exclude her from being able to safely receive the current vaccines. Despite indicating she was seeking information from her general practitioner in September 2021, by February 2022 Ms Lamb was still unable to provide any medical evidence that would preclude her from being safely administered the required doses of a COVID-19 vaccine.
  4. On 1 April 2022, Ms Lamb emailed the SCHHS (Attachment 6) advising she had had approximately 23 appointments since 7 January 2021. Ms Lamb did not provide any supporting documentation from any of those appointments which indicated she had a medical contraindication to receiving a COVID-19 vaccine. Ms Lamb also submitted information of appointments with a cardiologist on 21 February 2022 and 10 March 2022. To date, Ms Lamb still has not provided any medical evidence to support her application. (footnotes omitted)
  1. [39]
    It is clear from a reading of the decision, as set out above, that the decision maker did not embark upon a consideration of the matters as referred to in the Department's submissions. The submissions appear to be generic in nature and do not meaningfully address the decision made.
  1. [40]
    However, ultimately my role is to review the decision whether assisted by the parties' submissions or not. Ultimately, the decision maker was limited in the matters available to be considered due to Ms Lamb's failure to provide information in support of her position.
  1. [41]
    The exemption application provides that Ms Lamb has underlying medical issues, is awaiting advice from her general practitioner and awaiting results from her specialist on how the vaccine may react to her medical issues. The application further states that the earliest appointment Ms Lamb could make to see her general practitioner was on 11 October 2021.
  1. [42]
    Ms Lamb does not provide any advice as to her underlying medical issues. Relevantly, when applying for the exemption, Ms Lamb did not apply on the basis that she was unable to receive any COVID-19 vaccine due to a recognised medical contraindication but, instead, applied on the basis of 'other exceptional circumstances'. Ms Lamb applied for the exemption for, inter alia, the following reasons:

I feel I cannot make an informed decision on having the vaccine until I see my GP and receive results from my specialist.

  1. [43]
    In the Department's further written submissions,[8] the Department notes that at the time the exemption application was made, Ms Lamb did not provide any supporting medical evidence. The Department further notes that at the time the decision the subject of this appeal was made, some five months after the exemption application was made, Ms Lamb had still not provided any supporting medical evidence.
  1. [44]
    The Department contends that in these circumstances, it was fair and reasonable for
    Ms Lamb's application to be assessed and refused on the basis of the information before the decision maker.
  1. [45]
    Absent, any information regarding the grounds Ms Lamb relied on in requesting an internal review of the decision, I consider that the decision maker's role in the review decision was to consider all the available information to determine if the original decision was fair and reasonable.
  1. [46]
    The decision maker set out the factors it had regard to when making the determination as follows:
  • 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.
  • On 30 September 2021, you applied for an exemption from mandatory vaccination against COVID-19.
  • On 28 October 2021, 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 25 January 2022, you application was reviewed and considered by the COVID-19 Employee Vaccination Exemption Review Panel and a recommendation put to the delegate for consideration and determination.
  • On 31 January 2022, you were advised of the decision in relation to your application for an exemption, specifically, that your application was denied.
  • On 15 February 2022, you applied for an internal review of the decision to decline your application for exemption from the vaccination against COVID-19.
  1. [47]
    Relevantly, one of the factors the decision maker notes is that, in Ms Lamb's request for an internal review, Ms Lamb advises that she has been, and continues to, seek specialist advice, however, Ms Lamb has not provided any further supporting documentation.
  1. [48]
    Ms Lamb's failure to provide information and material in support of her application is a relevant and significant consideration in this matter.
  1. [49]
    In addition to these matters, Ms Lamb contends that no regard was had to the location of her workplace which she contends would allow her to self-isolate. Further, Ms Lamb contends that no regard was had to her proposal to work from home, or to be redeployed.
  1. [50]
    I do not consider these matters to be a relevant consideration with respect to Ms Lamb's request to be exempt from compliance with the Directive. Accordingly, I do not consider that the decision maker erred by failing to have regard to these matters with respect to the review of Ms Lamb's exemption application.
  1. [51]
    Having regard to the material before the decision maker, and noting that Ms Lamb did not produce any evidence of a recognised medical contraindication or any other evidence to support her application (including after her attendance on her general practitioner on 11 October 2021), I consider that the decision was fair and reasonable.

Further submissions of Ms Lamb filed on 12 and 17 May 2022

  1. [52]
    As noted above, Ms Lamb provided further submissions on 12 and 17 May 2022 setting out approximately 27 statements which appear to address what she considers to be 'unfair and unreasonable' in the circumstances of the exemption application, the decision and decision-making process and this appeal.
  1. [53]
    However, Ms Lamb has failed to substantiate such statements with any particulars or reasoning addressing why those matters render the decision to refuse her application for an exemption as unfair and unreasonable.
  1. [54]
    In particular, I note the following statements in Ms Lamb's written submissions:
  • It is unfair and unreasonable that I am expected to be an expert or hire an expert in/with this matter. (As I am not an expert in any of these said fields nor am I a lawyer or any such related professional in any of these matters)
  • It is unfair and unreasonable (as previously stated) that the time I have been given it is the same time as the corporate organisation in this case Queensland Health with consideration to that I am not a professional or have any training in matters such as these therefore it is unfair and unreasonable that I am not given sufficient time to address this.
  1. [55]
    In respect of the first statement made by Ms Lamb regarding her lack of expertise, it is not uncommon in public service appeals for parties to represent themselves. Indeed, that is the norm and lawyers are not ordinarily permitted to appear in such appeals.
  1. [56]
    In relation to the second statement, Ms Lamb was non-compliant with the first set of directions the Commission issued in this matter. Following the mention of the matter, the Commission determined to issue further directions for the filing of written submissions which provided Ms Lamb with a further opportunity to provide material in support of the appeal.
  1. [57]
    The period of time between the first directions issued by the Commission and the further directions issued is some 29 days.
  1. [58]
    Ms Lamb does not identify what prejudice, if any, she has suffered as a result of the time frames included in the directions. A review of the file indicates that following Ms Lamb's non-compliance with the directions order issued on 22 March 2022, a further directions order dated 21 April 2022 was issued, permitting Ms Lamb with a further opportunity to provide submissions. Ms Lamb provided those submissions on 28 April 2022 and 12 May 2022. Additionally, Ms Lamb provided further submissions on 17 May 2022.
  1. [59]
    I do not consider that Ms Lamb has been denied a sufficient opportunity to make submissions in support of her appeal.

Conclusion

  1. [60]
    For the foregoing reasons, I dismiss the appeal and confirm the decision subject to the appeal.

Order

  1. [61]
    Accordingly, I make the following orders:
  1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed.
  1. Pursuant to s 566(1)(b) of the Industrial Relations Act 2016 (Qld), the stay of the decision issued on 22 March 2022 is revoked.

Footnotes

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

[2] T1 – 3, ll 35 – 36.

[3] T1 – 6, ll 14 – 19.

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

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

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

[7] Table 1.

[8] Filed in the Industrial Registry on 5 May 2022.

Close

Editorial Notes

  • Published Case Name:

    Lamb v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Lamb v State of Queensland (Queensland Health)

  • MNC:

    [2022] QIRC 237

  • Court:

    QIRC

  • Judge(s):

    Member Hartigan IC

  • Date:

    21 Jun 2022

Appeal Status

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

Cases Cited

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

Cases Citing

Case NameFull CitationFrequency
Bakhash v State of Queensland (Department of Education) [2022] QIRC 3621 citation
Daley v State of Queensland (Department of Education) [2023] QIRC 2771 citation
De Martin v State of Queensland (Queensland Health) [2023] QIRC 2651 citation
Elliott v State of Queensland (Queensland Health) [2022] QIRC 3322 citations
Fitzgerald v State of Queensland (Queensland Health) [2023] QIRC 872 citations
Janulewicz v State of Queensland (Queensland Health) [2023] QIRC 261 citation
Major v State of Queensland (Queensland Ambulance Service) [2023] QIRC 1131 citation
McKinney v State of Queensland (Queensland Health) [2023] QIRC 1321 citation
Smith v State of Queensland (Department of Environment and Science) [2022] QIRC 4001 citation
1

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