Vandersteen v State of Queensland (Queensland Ambulance Service)
[2022] QIRC 243
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- Unreported Judgment
- Vandersteen v State of Queensland (Queensland Ambulance Service)[2022] QIRC 243
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Vandersteen v State of Queensland (Queensland Ambulance Service)[2022] QIRC 243
Vandersteen v State of Queensland (Queensland Ambulance Service)[2022] QIRC 243
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Vandersteen v State of Queensland (Queensland Ambulance Service) [2022] QIRC 243 |
PARTIES: | Vandersteen, Kelly Maree (Appellant) v State of Queensland (Queensland Ambulance Service) (Respondent) |
CASE NO: | PSA/2022/466 |
PROCEEDING: | Public Service Appeal – fair treatment appeal |
DELIVERED ON: | 24 June 2022 |
MEMBER: | Pidgeon IC |
HEARD AT: | On the papers |
ORDER: | The internal review decision is confirmed. |
CATCHWORDS: | PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – public service appeal – external review – where the appellant applied for an exemption from being required to receive a COVID-19 vaccine – where appellant was denied an exemption – where the appellant requested the decision be internally reviewed – where the decision was confirmed – where appellant submits that decision is unfair and unreasonable |
LEGISLATION: | Industrial Relations Act 2016, ss 562, 562B and 562C Public Service Act 2008, 194 QAS Policy - Employee COVID-19 Vaccination Requirements QAS HR Procedure - COVID-19 Vaccine Requirements |
Reasons for Decision
Introduction
- [1]Kelly Maree Vandersteen (the Appellant) is employed by the State of Queensland (Queensland Ambulance Service) (QAS/the Respondent). Ms Vandersteen is employed as an Advanced Care Paramedic II.
- [2]On 25 March 2022, Ms Vandersteen received an internal review decision confirming a decision not to approve an application for an exemption from compliance with QAS Policy - Employee COVID-19 Vaccination Requirements (QAS HR Policy) which requires relevant employees to receive the required doses of the COVID-19 Vaccination.
- [3]The QAS HR Policy was implemented on 31 January 2022 to replace the former QAS HR Procedure - COVID-19 Vaccine Requirements (QAS HR Procedure) which was in place when Ms Vandersteen applied for an exemption on 20 September 2021. Ms Vandersteen applied for the exemption on the basis of genuinely held religious beliefs and other exceptional circumstances.
- [4]By letter dated 1 February 2022 Ms Vandersteen was offered the opportunity to amend her application for exemption now it was to be considered under the new QAS HR Policy. Ms Vandersteen elected not to make any amendments to her application.
Is the Appellant entitled to appeal?
- [5]Section 194 of the Public Service Act 2008 (The PS Act) lists various categories of decisions against which an appeal may be made. Section 194(1)(eb) provides that an appeal may be made against "a decision a public service employee believes is unfair and unreasonable (a fair treatment decision)".
- [6]The appeal notice was filed with the Industrial Registry on 14 April 2022 within 21 days of the decision being received on 25 March 2022. I am satisfied that the Appellant may appeal the decision.
Appeal Principles
- [7]Section 562B(3) of the Industrial Relations Act 2016 (IR Act) provides that "the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable".
- [8]Findings made in the decision which are reasonably open on the relevant material or evidence before the decision maker, should not be expected to be disturbed on appeal.
- [9]A public service appeal is not an opportunity for a fresh hearing, but a review of the decision arrived at by the decision maker. To determine the appeal, I will consider whether the decision conveyed to Ms Vandersteen on 25 March 2022 was fair and reasonable.
- [10]In deciding this appeal, s 562C(1) of the IR Act provides that the Commission may:
- (a)confirm the decision appealed against; or
…
- (c)for another appeal-set the decision aside, and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.
QAS HR Policy
- [11]The QAS HR Policy currently in force provides:
3 Existing employees
Existing employees currently undertaking work or moving into a role undertaking work listed in a cohort of Table 1, must:
- Have received the first dose and second dose of a COVID-19 vaccine by 27 February 2022
An existing employee must provide their line manager or other designated person:
- 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.
- Evidence of vaccination confirming that the employee has received both doses 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 doe/s of the vaccine, is to be provided to their line manager or other designated person within 7 days of receiving the vaccination.
An existing employee who is required to have received a first and second dose of a COVID-19 vaccination 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 3 do not apply to existing employees who have been granted an exemption under clause 5 of this Policy.
…
5 Exemptions
Where an existing employee is unable to be vaccinated they are required to complete an exemption application form.
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 believe;
- Where another exceptional circumstance exists.
If an existing employee is granted an exemption, they do not have to comply with clause 3 or 4 of this Policy
The Appeal
- [12]This appeal requires me to decide if the internal review decision of A/Assistant Commissioner John Hammond was fair and reasonable.
- [13]The internal review decision of A/AC Hammond is attached to the appeal notice. I note that in that letter, A/AC Hammond sets out the actions he took in undertaking the review and the timeline of events commencing with the issuing of the mandatory vaccine requirements and then Ms Vandersteen's exemption application, the consideration of the exemption application by the independent panel which reviewed the application, the decision of Mr Clarke refusing the exemption and the request for an internal review.
- [14]A/AC Hammond sets out the matters raised by Ms Vandersteen in her internal review request. Ms Vandersteen had complained that the exemption decision did not list information she had submitted, specifically a letter from herself and correlating bible verses as to why the vaccine is against her religious beliefs and activities. A/AC Hammond notes that in the exemption decision, Mr Clarke specifically referenced supporting documentation, including, 'your deeply held religious belief that you are unable to receive any COVID-19 vaccine' and Ms Vandersteen's 'affiliation or connection to the religious group'. A/AC Hammond stated that he was satisfied that Mr Clarke had given consideration to the supporting documents provided by Ms Vandersteen even though he did not specifically list them.
- [15]A/AC Hammond then goes on to address Ms Vandersteen's submission regarding her 'genuinely held religious belief' exemption request and states
While I acknowledge your genuinely held religious beliefs, in Mr Clarke's decision on your exemption application, it was decided that these beliefs do not outweigh the purposes of the vaccine requirements in the QAS HR Policy and prioritising the health and safety of your colleagues and your community is reasonable at this time. I concur with Mr Clarke's assessment of this matter.
- [16]A/AC Hammond then addresses Ms Vandersteen's concerns regarding risk and consultation, safety, and free and informed consent. A/AC Hammond says that he is satisfied that Mr Clarke's decision had 'adequately considered and addressed those matters raised'.
- [17]The appeal notice filed on 25 March 2022 contained Ms Vandersteen's reasons for appeal which can be summarised as follows:
- Failure of the Respondent to adequately consult with Ms Vandersteen prior to implementing the mandate (QAS HR Policy).
- QAS has not provided an adequate risk assessment or statistical data.
- Failure of the Respondent to properly consider Ms Vandersteen's exemption application which was made on the basis of:
- Risk and consultation;
- Safety and efficacy;
- Free and informed consent;
- Right to religious beliefs;
- Medical autonomy; and
- The health risks of the vaccines outweigh the benefits which are short-lived.
- Failure of the Respondent to consider alternative means to manage COVID-19.
- Failure of the Respondent to conduct individual risk assessments for each QAS employee before rolling out the mandate.
Respondent submissions
- [18]The Respondent made submissions in response to Ms Vandersteen's appeal which maintain that the decision to confirm the refusal of Ms Vandersteen's exemption application was fair and reasonable.
- [19]An explanation is given to establish that the QAS HR Policy is based on the Chief Health Officer's directions (CHO Directions) regarding workers in healthcare settings and hospital entries.[1] By basing the QAS HR Policy and Procedure on the CHO Directions, the Respondent has ensured their lawfulness and reasonableness, as the CHO is the most senior medical officer in the State.
- [20]The CHO Directions provide that a worker in healthcare must not enter, work in, or provide services in a healthcare setting unless they comply with the COVID-19 vaccination requirements. Further, a worker in healthcare includes a healthcare professional and a healthcare professional means someone registered under the National Registration and Accreditation Scheme administered by the Australian Health Practitioner Regulation Agency (AHPRA). As an Advanced Care Paramedic, Ms Vandersteen is registered with AHPRA and therefore a worker in healthcare for the purpose of the CHO Directions.
- [21]The Respondent submits that when considering an exemption application made on the grounds of genuinely held religious beliefs, it must weigh those beliefs against health and safety obligations. In this case it was decided that workplace and community safety had to take precedence over Ms Vandersteen's religious beliefs.
- [22]The grounds of exceptional or extenuating circumstances were not made out in Ms Vandersteen's submissions to the satisfaction of the Respondent. The correspondence from Kennedy Spanner Lawyers did not raise any circumstances specific the Ms Vandersteen as an individual.
- [23]In response to Ms Vandersteen's ground of appeal surrounding free and informed consent, the Respondent submit that Ms Vandersteen remains free not to receive a COVID-19 vaccine and it is not correct to say that she has no alternative. Consenting to vaccination to maintain her employment would not vitiate Ms Vandersteen's consent.
- [24]On the grounds of lack of consultation or a risk assessment the Respondent put forward that consultation was conducted by the Department of Health of which QAS is a part. The Department of Health consulted with employees and registered unions as is required by the Work Health and Safety Act 2011. The Respondent says that there is no lawful basis upon which Ms Vandersteen can request access to a risk assessment undertaken by QAS in relation to vaccines and proof that she is at a higher risk of transmission.[2]
- [25]The Respondent says that Ms Vandersteen's human rights were taken into account through the process and that A/AC Hammond determined that any limitation on Ms Vandersteen's 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.
Ms Vandersteen's submissions
- [26]Ms Vandersteen complains that while QAS have stated multiple times throughout correspondence and within their submission that exemptions would be considered on an individual case-by-case basis, the consistent repetition of paragraphs in their responses leads her to believe that her matter was not considered on an individual basis.
- [27]Ms Vandersteen refers to the email from Mr Christian McCudden, Pastor, C3 Noosa which outlined the use of foetal cell lines within vaccinations was 'strongly disagreed with and would challenge members and their beliefs'.
- [28]Ms Vandersteen says that she is not an anti-vaxxer and has followed all previous vaccination requirements as an agreed condition of her employment with QAS. Ms Vandersteen says that although she agreed to the ongoing vaccination programs listed in her letter of employment, she did not agree to 'any experimental vaccination programs or clinical trials'. Ms Vandersteen says that her concerns for safety and efficacy due to a lack of longitudinal data are valid.
- [29]Ms Vandersteen says that her (and her lawyers) repeated requests for the data that informed the vaccination mandate have been ignored.
- [30]Ms Vandersteen says 'I am not here to debate the merits of science behind the vaccines or to waste the QIRC's time'. Ms Vandersteen references the information she has attached to her submissions which includes data/reports 'from the COVID-19 vaccine manufacturers themselves as evidence for my voiced concerns'.
- [31]Ms Vandersteen maintains that there has not been adequate consultation with regard to the introduction of the vaccine mandate. Ms Vandersteen points to the Australian Capital Territory where mandates for health care workers have recently been dropped.
- [32]Ms Vandersteen says that while QAS states that she is free to choose not to vaccinate, the 'constant threat of disciplinary action, suspension without pay and termination' means that her 'choice is not made freely, lawfully and without coercion'.
Consideration
- [33]My role in this appeal is to determine whether it was fair and reasonable for A/AC Hammond to confirm the decision of Mr Clarke refusing Ms Vandersteen's exemption request.
- [34]A review of all of the material available to me makes it clear that A/AC Hammond considered the reasons put forward by Ms Vandersteen as to why the decision to refuse her vaccine exemption was not fair. A/AC Hammond specifically refers to Ms Vandersteen's religious beliefs and submissions regarding risk, consultation, safety and consent.
- [35]In addition to religious beliefs and concerns about risk, consultation, safety and consent, Ms Vandersteen's appeal notice states that 'the health risks of the vaccine outweigh the benefits which are short-lived'. This appeal is not the avenue to debate the health risks or benefits of the vaccines. In fact, I note that in her reply submissions, Ms Vandersteen states that she is 'not here to debate the merits of science behind the vaccines'. I will not address this ground of appeal any further.
- [36]I do not accept Ms Vandersteen's contention that her religious beliefs were not considered by A/AC Hammond (or Mr Clarke) in their decisions. It is clear that Ms Vandersteen's religious beliefs were considered and that a decision had been made that Ms Vandersteen's individual beliefs did not serve to outweigh the purposes of the vaccination mandate. Ms Vandersteen may not be happy with this outcome, but it is not correct to say that her religious beliefs were not considered.
- [37]The original decision of Mr Clarke specifically responds to the issues raised in the letters from Kennedy Spanner Lawyers. A/AC Hammond determined that this response was adequate and satisfactory. I agree. While Ms Vandersteen may feel that the language in the letters she has received mirrors the language used in decisions received by other people, I find this unsurprising when it appears that Kennedy Spanners Lawyers sent the same or similar correspondence on behalf of over 150 clients.
- [38]Ms Vandersteen's appeal notice states that the Respondent has failed to conduct individual risk assessments for each QAS employee before rolling out the mandate. The Respondent was not required to do so. Whether an individual risk assessment was carried out for Ms Vandersteen is not relevant to this appeal of the internal review decision.
- [39]In addition to the submissions made on her behalf by the lawyers, Ms Vandersteen provided additional submissions of her own in her internal review request. While I understand that Ms Vandersteen is unhappy with the outcome of her exemption application and the subsequent internal review, I am unable to find that the material she provided has not been considered.
- [40]Ms Vandersteen's appeal notice also states that the Respondent has not considered alternative means to manage COVID-19. The Respondent, having made a decision to mandate the vaccine, put an exemption application process in place. Whether the Respondent considered 'alternative means to manage COVID-19' is not a matter for this appeal which specifically relates to the exemption application decision and the internal review decision.
- [41]There is no evidence before me to suggest that Ms Vandersteen's exemption application and her internal review request were not considered on an individual or case-by-case basis. The exemption decision and the review decision both make specific reference to the matters Ms Vandersteen has raised.
- [42]Having considered all of the material available to me and the submissions of the parties in this appeal, I find that it was fair and reasonable for A/AC Hammond to confirm the decision of Mr Clarke to refuse Ms Vandersteen's application for an exemption from the COVID-19 vaccine direction.
- [43]The internal review decision is confirmed, and the appeal is dismissed.