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  4. Batchelor v State of Queensland (Department of Environment and Science) - [2022] QIRC 252

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Batchelor v State of Queensland (Department of Environment and Science)[2022] QIRC 252

Batchelor v State of Queensland (Department of Environment and Science)[2022] QIRC 252

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Batchelor v State of Queensland (Department of Environment and Science) [2022] QIRC 252

PARTIES:

Batchelor, Pamela

(Appellant)

v

State of Queensland (Department of Environment and Science)

(Respondent)

CASE NO:

PSA/2022/333

PROCEEDING:

Public Service Appeal – Disciplinary Decision

DELIVERED ON:

29 June 2022

MEMBER:

McLennan 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 – where respondent alleges that appellant did not comply with COVID-19 Vaccination Policy and Procedure – where allegation substantiated – whether appellant has provided a fair and reasonable excuse for non-compliance – where appellant submits policy is unreasonable – where decision is fair and reasonable

LEGISLATION & OTHER

INSTRUMENTS:

Australian Constitution s 51, s 109

Industrial Relations Act 2016 (Qld) s 451, s 562B, s 562C, s 563

Public Service Act 2008 (Qld) s 11, s 187, s 188, s 194

COVID-19 Vaccination Policy and Procedure cl 3, cl 8, cl 12, cl 15

CASES:

Brasell-Dellow & Ors v State of Queensland,  (Queensland Police Service) & Ors [2021] QIRC 356

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

Graffunder v State of Queensland (Queensland Health) [2022] QIRC 076

Gundrum v State of Queensland (Queensland Health) [2022] QIRC 226

Higgins v State of Queensland (Queensland Health) [2022] QIRC 030

Hutchison v State of Queensland (Queensland Health) [2021] QIRC 317

Kathryn Roy-Chowdhury v The Ivanhoe Girls’ Grammar School [2022] FWC 849

Radev v State of Queensland (Queensland Police Service) [2021] QIRC 414

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

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]
    Ms Pamela Batchelor ('the Appellant') is employed by the State of Queensland (Department of Environment and Science) ('the Department') as a Senior Policy Officer A05, Reef Programs, Office of the Great Barrier Reef.[1]
  1. [2]
    On 27 January 2022, the Director-General of the Department approved the Department's COVID-19 Vaccination Policy and Procedure ('the Policy'). This appeal concerns the Appellant's alleged failure to comply with the Policy.
  1. [3]
    On 9 February 2022, the Appellant was asked to show cause as to why a disciplinary finding should not be made against her under the Public Service Act 2008 (Qld) ('the PS Act') in relation to the following allegation ('Show Cause Notice'):

It is alleged that in contravention of a direction given to you under the department's COVID-19 Vaccination Policy and Procedure, you have not provided evidence confirming that you have received the required number of doses of an accepted COVID-19 vaccine.[2]

('Allegation One')

  1. [4]
    The Appellant was afforded a period of 14 days to provide a response to Allegation One. On 22 February 2022, the Appellant provided a response entitled "Third and final notice: Vivienne Van Der Laak (Chief Human Resources Officer – DES)".
  1. [5]
    On 23 February 2022, Ms Van Der Laak ('the decision-maker') advised the Appellant in written correspondence that she determined "Allegation one is substantiated on the balance of probabilities" and that a ground for discipline existed under s 187(1)(d) of the PS Act ('the Disciplinary Decision'). The decision-maker also advised she was considering whether disciplinary action should be taken against the Appellant under s 188 of the PS Act and proposed the disciplinary action of "termination of employment". The Appellant was afforded a period of 7 days to show cause why the proposed disciplinary action should not be taken.[3]
  1. [6]
    On 28 February 2022, the Appellant filed an appeal with the Industrial Registry.

Jurisdiction

  1. [7]
    Section 194 of the PS Act identifies the categories of decisions against which an appeal may be made. Section 194(1)(b)(i) of the PS Act provides that an appeal may be made "against a decision under a disciplinary law to discipline – a person (other than by termination of employment), including the action taken in disciplining the person."
  1. [8]
    In her submissions filed 16 March 2022, the Appellant submits, "This appeal is against the impending decision to terminate the Appellant's employment as stated in correspondence dated 23 February 2022."[4]
  1. [9]
    The Appellant's characterisation of the decision as "impending" is correct – the disciplinary action of termination has been "proposed", not determined. The Disciplinary Decision clearly states, "In accordance with the principles of natural justice, no final determination of the disciplinary action to be taken has been made, or will be made, until you have had an opportunity to respond."[5]
  1. [10]
    In Graffunder v State of Queensland (Queensland Health) ('Graffunder'),[6] I concluded that correspondence constituting a show cause notice or pertaining to proposed disciplinary action is not capable of being appealed.[7]
  1. [11]
    In Hutchison v State of Queensland (Queensland Health) ('Hutchison'), Industrial Commissioner Pidgeon concluded:

[93]  There is no question that the proposed disciplinary action is not a decision that can be appealed.

[94]  With regard to the decision to commence a disciplinary process, s 195 of the PS Act sets out Decisions against which appeal cannot be made. Relevantly, it states that a person cannot appeal against a fair treatment decision made under chapter 6, part 2, other than a finding under s 187 that a disciplinary ground exists for the person.

[95]  Chapter 6, part 2 of the PS Act deals with disciplinary action for public service employees and former public service employees. Section 192A deals with directives about disciplinary action and investigating grounds for discipline and grievances. The relevant Directive to this matter states that the employee has appeal rights with regard to the disciplinary finding or the disciplinary decision.

[96]  In my view, the decision to commence a disciplinary process is not capable of being appealed, though it is clear that considerations of whether the proper process is followed in disciplinary matters can impact on whether a disciplinary finding or decision is fair and reasonable.[8]

  1. [12]
    As in Graffunder, I agree with the reasoning in Hutchison and note the same conclusion was reached in Higgins v State of Queensland (Queensland Health).[9]
  1. [13]
    Nevertheless, out of an abundance of fairness to the Appellant, I will proceed to determine this matter as an appeal against the disciplinary finding contained within the Disciplinary Decision (i.e., the finding that Allegation One is substantiated) which has consequently led to the proposed disciplinary action of termination.
  1. [14]
    The Appellant has been an employee of the Respondent at all times relevant to this appeal.
  1. [15]
    I am satisfied that the Disciplinary Decision as it pertains to the disciplinary finding only, can be appealed. 

Timeframe to Appeal

  1. [16]
    Section 564(3) of the Industrial Relations Act 2016 (Qld) (the IR Act) requires that an appeal be lodged within 21 days after the day the decision appealed against is given.
  1. [17]
    The Disciplinary Decision was given to the Appellant on 23 February 2022 and the Appeal Notice was filed with the Industrial Registry on 28 February 2022. Therefore, I am satisfied that the Appeal Notice was filed by the Appellant within the required timeframe.

Submissions

  1. [18]
    The parties filed written submissions in accordance with the Directions Order issued on 2 March 2022. Pursuant to s 451(1) of the IR Act, this matter has been decided on the papers.
  1. [19]
    I have carefully considered all submissions and materials. I have determined not to approach the writing of this decision by summarising the entirety of those submissions and attachments but will instead refer to the parties' key positions in my consideration of the appeal.

What decisions can the Commission make?

  1. [20]
    In deciding this appeal, s 562C of the IR Act provides that the Commission may:
  • confirm the decision appealed against;
  • set the decision aside and substitute another decision; or
  • set the decision aside and return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.

Appeal principles

  1. [21]
    Section 562B(3) of the IR Act provides that the purpose of a public service appeal is "to decide whether the decision appealed against was fair and reasonable."[10] This is the key issue for my determination. 
  1. [22]
    A public service appeal under the IR Act is not by way of rehearing,[11] but involves a review of the decision arrived at and the decision–making process associated therewith. 
  1. [23]
    Findings made by the Respondent, which are reasonably open to it, should not be disturbed on appeal. 
  1. [24]
    For the reasons contained herein, I have found that the Disciplinary Decision was fair and reasonable.

Relevant legislation

  1. [25]
    Section 187 of the PS Act sets out the grounds for discipline and disciplinary action. The relevant section is extracted below:

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. (d)
    contravened, without reasonable excuse, a direction given to the employee as a public service employee by a responsible person; or

…

  1. [26]
    The Policy sets out the mandatory vaccination requirements for all existing and prospective employees.[12]
  1. [27]
    Clause 3 of the Policy stipulates the principles of the Policy as to help ensure:
  • a healthy and safe workplace is maintained
  • users of government services, particularly those with increased vulnerability, are protected
  • the Queensland community are able to rely on government services not being disrupted
  • the business / operations of our stakeholders are not adversely impacted because of COVID-19.

The vaccination requirements detailed in this policy have been determined in consideration of:

  • the application of CHO Directions to departmental staff and activities
  • the risks of COVID-19 and the availability and efficacy of controls to manage and mitigate the risk and follows consultation with staff and relevant unions.
  1. [28]
    Clause 8.1 of the Policy sets out the requirements for vaccination. The relevant part is extracted below:
  1. (a)
    Vaccination requirements apply to all Department of Environment and Science employees in line with the following Groups:

…

Group D All other employees who attend departmental workplaces / worksites

  1. (b)
    An employee undertaking or being considered to undertake a role identified in clause 8.1(a) is required to:
  1. (i)
    be fully vaccinated against COVID-19; and
  1. (ii)
    provide evidence of vaccination

unless otherwise provided for in a relevant CHO direction or this policy

…

  1. [29]
    The Respondent identified the Appellant as falling under Group D.[13]
  1. [30]
    Clause 8.1(d) of the Policy provides that employees or other workers in scope under cl 8.1(b) or (c) who fall under Group D must receive their first dose of the COVID-19 vaccination by 8 February 2022 and their second dose of the vaccination / be fully vaccinated by 8 March 2022.
  1. [31]
    Clause 8.1(h) of the Policy provides that, "In exceptional circumstances an employee undertaking a role identified in clause 8.1(a) may request the delegate approve a delay to the vaccination requirements set out in clauses 8.1(b) and 8.1(d)." The Appellant did not make a request to delay the vaccination requirement.[14]
  1. [32]
    Clause 8.2 of the Policy outlines the requirement to provide evidence of vaccination:
  1. (a)
    An employee in scope under clause 8.1(a) must provide acceptable evidence of vaccination. In addition, an existing employee may be directed to provide evidence of vaccination at any time where it is reasonably required. A failure to comply with such a direction may result in disciplinary action.
  1. (b)
    An employee required to provide evidence of vaccination under clause 8.2(a) must:
  1. (i)
    complete the COVID-19 Immunisation Collection Form in Aurion ESS; and
  1. (ii)
    provide evidence of vaccination to their supervisor prior to or as soon as practicable upon submitting the Immunisation Collection Form. This can occur by physically showing the supervisor/manager the evidence of vaccination or providing the supervisor with a copy of the evidence of vaccination.
  1. [33]
    Clause 8.4 of the Policy provides that a person with a recognised medical contraindication can file a Vaccination Exemption Request Form including medical evidence of the contraindication. 
  1. [34]
    Clause 8.5 of the Policy provides that a discipline process may be commenced in circumstances where an employee does not comply with the requirements of the Policy.

The Disciplinary Decision

  1. [35]
    The Disciplinary Decision relates to Allegation One extracted at [3] above.
  1. [36]
    The Department provided the following particulars in support of Allegation One:
  1. The COVID-19 Vaccination Policy and Procedure was effective from 27 January 2022 and the requirements of the Policy were communicated via an all staff email from the Director-general on that date.
  2. The requirements of the policy were further communicated through:
  1. emailed correspondence from the Deputy Director-General, Environmental Policy and Programs on 27 January 2022
  2. the all-staff communique of 2 February 2022 from the Deputy Director-General, Corporate Services
  3. an all-staff email from the A/Director-General on 4 February 2022
  4. a personal email to you from the Chief Human Resources Officer on 7 February 2022.
  1. You are a DES employee to whom the COVID-19 Vaccination Policy and Procedure applies.
  2. Under clause 8.1 of the Policy, you are required to have received at least the first dose of an accepted COVID-19 vaccine by 8 February 2022.
  3. Under clause 8.2 of the Policy you are required to have provided evidence of receipt of at least the first dose of an accepted COVID-19 vaccine by 8 February 2022 and recorded this in Aurion ESS.
  4. As at today's date, departmental records show that:
  1. you have not provided evidence confirming that you have received at least the first dose of an accepted COVID-19 vaccine as required by the Policy
  2. you have not submitted and/or had approval for an exemption (clause 8.4) or delay (clause 8.1(h)) under the Policy.
  1. By emailed correspondence of 8 February 2022, you have indicated you do not intend to comply with the Policy and/or sought to impose conditions upon any compliance.[15]
  1. [37]
    On 22 February 2022, the Appellant responded to the Show Cause Notice.
  1. [38]
    By letter dated 23 February 2022, the decision-maker advised the Appellant that Allegation One had been substantiated and provided the following reasons for the decision:
  • the Policy (and the directions contained therein) has been lawfully issued by a responsible person (the Director-General). The decision to issue the Policy followed consultation with staff and relevant unions, consideration of the risks associated with COVID-19 (as understood at the time) including taking into account the information and advice of Australian health Authorities regarding vaccine efficacy and safety, and the impacts on human rights
  • the vaccination requirements set out in the Policy are not an "offer"; they are a lawful direction issued to you as an employee of DES
  • the obligation to comply with the departmental policy has been clearly communicated to you on several occasions, including through all staff and divisional emails, and emailed correspondence sent directly to you dated 13 January and 7 February 2022 (Attachment A)
  • Australian Courts and Commissions are consistently upholding the right of employers to implement vaccine requirements in response to COVID-19. While Courts and Commissions have acknowledged that individuals may genuinely hold concerns about COVID-19 vaccines, such concerns do not invalidate employment vaccination requirements
  • the issue of consent was dealt with in the matter of Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320 (15 October 2021) where it was confirmed that consent is not vitiated by it being given in response to a condition of continued employment
  • it was determined in Tilley v State of Queensland (Queensland Health) [2022] QIRC 2 (7 January 2022) (citing the High Court Decision in Wong v Commonwealth of Australia and Anor, Selim v Lele, Tan and Rivett constituting the Professional Services Review Committee No 309) that s51(xxiiA) of the Australian Constitution is not relevant to the issue of vaccination requirements for individuals
  • COVID-19 vaccines approved for use in Australia have been through the Therapeutic Goods Administration vaccine approval process that assesses safety. While adverse reactions may occur they are largely minor, and advice from the Queensland Chief Health Officer (CHO) has been (and remains) that vaccination is the most important action that can be taken to manage the impacts of COVID-19. It is reasonable and appropriate for the department to rely on the advice of Australian health authorities in considering the safety and efficacy of COVID-19 vaccines
  • as a Queensland public service entity, the provisions of the Fair Work Act 2009 (Cth) and the Privacy Act 1988 (Cth) do not apply to DES. DES is compliant with the provisions of the Information Privacy Act 2009 (Qld) – requests for information about vaccination status is reasonable in the context of managing the risks associated with COVID-19 and in implementing the policy
  • your response indicates that you have not received a dose of a COVID-19 vaccine as required by clause 8.1 of the Policy and have not provided evidence of vaccination as required by clause 8.2 of the Policy

On the basis of my finding in relation to Allegation one, I have determined that, pursuant to section 187(1)(d) of the PS Act, you have contravened, without reasonable excuse, a direction given to you as a Department of Environment and Science (DES) employee by a responsible person, specifically as provided for in clauses 8.1(a), (b) and (d), and 8.2(a) and (b) of the COVID-19 Vaccination Policy and Procedure…

Whether the Disciplinary Decision was fair and reasonable

  1. [39]
    In determining whether the Disciplinary Decision was fair and reasonable, I will consider the following:
  • whether a direction was given to the Appellant by a responsible person;
  • whether the Appellant contravened that direction;
  • whether the Appellant had a reasonable excuse to contravene that direction; and
  • whether the decision-maker could be reasonably satisfied of the abovementioned factors.

The direction

  1. [40]
    I find the Department issued a direction to the Appellant in the terms of cl 8.1(b) of the Policy.
  1. [41]
    The Policy was issued by the Director-General following consultation with staff and relevant unions, consideration of the risks associated with COVID-19, including advice from Australian health authorities and the impacts of human rights.
  1. [42]
    Section 11 of the PS Act provides that the chief executive of a department is responsible for the employment of public service employees of that department. Mr Jamie Merrick is the Director-General of the Department and I am satisfied that he is a responsible person for the purpose of s 187(1)(d) of the PS Act.
  1. [43]
    I am satisfied the Policy is applicable to the Appellant as an employee falling under "Group D" pursuant to cl 8.1.
  1. [44]
    The Appellant was specifically directed to receive the first dose of a COVID-19 vaccination by 8 February 2022 and the second dose by 8 March 2022. The Appellant was also directed to provide evidence of vaccination by completing the COVID-19 Immunisation Collection Form in Aurion ESS and providing evidence of vaccination to her supervisor prior to or as soon as practicable upon submitting the Immunisation Collection Form.

Contravention

  1. [45]
    It is not controversial that the Appellant did not receive the COVID-19 vaccination in accordance with cl 8.1 of the Policy and did not provide evidence in accordance with cl 8.2 of the Policy. Further, the Appellant did not apply for an exemption from complying with cl 8.1 of the Policy pursuant to cl 8.4 of the Policy.
  1. [46]
    On that basis, I am satisfied the Appellant contravened the directions given to her under the Policy.

Reasonable excuse

  1. [47]
    The Appellant's contentions with respect to the reasonableness of the Disciplinary Decision broadly fall under the following themes:
  • no proof of the legality of the Policy;
  • no proof of the efficacy of the medical services delivering the COVID-19 vaccine;
  • the COVID-19 vaccine is an "irreversible invasive medical procedure";
  • the Department accepted three Notice to Agent letters requesting a valid proof of claim that the Policy is legal in accordance with the Constitution of Australia, among other acts;
  • final risk assessments have not been provided;
  • evidence of legal advice that was used to inform the final decision to proceed with the Policy has not been provided;
  • consent is vitiated by it being given in response to a condition of continued employment;
  • the Department has not provided evidence of compliance with the Work Health and Safety Act 2016 (Qld);
  • the Department did not communicate what other steps were considered prior to the Disciplinary Decision;
  • the Department did not provide a definition of "reasonable excuse";
  • correspondence issued to the Department has not been responded to appropriately;
  • coercion;
  • compensation may be sought in the event of "intentional infliction of emotional trauma through deliberate actions";
  • the decision-maker did not consider or provide a balance of scientific evidence available pertaining to the efficacy and safety of the COVID-19 vaccination in an effort to inform consent;
  • issues with medical research relied upon;
  • there are unknown risks with the COVID-19 vaccine;
  • the Policy contains misleading statements;
  • lack of duty of care/negligence;
  • the Policy is a recommendation and offer of contract only;[16]
  • consultation did not represent a fair and reasonable process;
  • two of the Appellant's team members experienced adverse reactions;
  • many countries have removed vaccination mandates;
  • evidence suggests the vaccination is unable to achieve its claimed effect;
  • there are no current COVID-19 Biosecurity Orders or mandates pertaining to public servants issued by the Commonwealth of Australia;
  • the Respondent did not consider alternative duties; and
  • the submissions presented by the Reef Program Team should have weighed heavily in the decision-maker's consideration.[17]
  1. [48]
    The Appellant's written submissions and the material considered by the decision-maker clearly indicate the Appellant holds reservations about being administered the COVID-19 vaccination and is therefore hesitant to comply with the Policy.
  1. [49]
    Vaccine hesitancy is not a reasonable excuse for contravening the Policy. Through the exemption application process, the Appellant was afforded the opportunity to present any medical contraindications as verified by a medical professional for the Department's consideration. The Appellant did not do so. In the absence of a certified medical contraindication to the COVID-19 vaccination, I find it was fair for the decision-maker to conclude that the Appellant did not have a reasonable excuse for non-compliance with the Policy.
  2. [50]
    With respect to the legality of the Policy, s 11 of the PS Act provides:
  1. (1)
    The chief executive of a department is, for the State, responsible for the employment of public service employees of that department.
  1. (2)
    The public service employees of a department are responsible to that department's chief executive in relation to their employment in that department.
  1. [51]
    The vast responsibilities of the chief executive are outlined under s 98 of the PS Act and I accept the subject matter of the Policy is a matter related to the employment of employees with reference to cl 3 of the Policy as extracted at [27] above. On that basis, I am satisfied that the approval and implementation of the Policy was authorised under the PS Act.
  1. [52]
    The Appellant contends that evidence of legal advice used to inform the final decision to proceed with the Policy should have been provided. I reject that argument. Clearly advice between the Respondent and legal advisors would likely be subject to legal professional privilege and therefore unable to be given to the Appellant.
  1. [53]
    With respect to the Appellant's arguments regarding risk assessments, I refer to Industrial Commissioner Dwyer's decision in Gundrum v State of Queensland (Queensland Health) ('Gundrum'), where he concluded:[18]

[37]  The submissions regarding risk assessment, consultation, and his contract of employment are, with all due respect to Mr Gundrum, rather stale. They have been run repeatedly by other litigants in similar or the same circumstances to Mr Gundrum and they have failed repeatedly.[19]

[38]  An obligation for a duty holder (like the Health Service) to undertake a risk assessment under the Work Health and Safety Act 2011 (Qld) does not, of itself, create a right by an employee to demand a documented copy of that risk assessment. In any event, Covid vaccine safety has been evaluated and confirmed as safe by the Australian Technical Advisory Group on Immunisation ('ATAGI') and as such there is no reasonable basis for Mr Gundrum to demand a risk assessment or complain he did not receive one. The approval of vaccines for use by a federal authority such as ATAGI ought to assuage any concerns.[20]

…

[40] Similarly, the arguments about lack of consultation also must fail. It was held by the Full Bench of the Commission that consultation may legitimately be conducted with registered unions through representatives rather than individuals in a large workforce…[21]

  1. [54]
    I follow Industrial Commissioner Dwyer's reasoning in Gundrum as extracted above.
  1. [55]
    The Appellant takes issue with the Department not providing a definition of "reasonable excuse". I refer to my consideration in Radev v State of Queensland (Queensland Police Service) which I find to be analogous to this matter:

The Direction and Guidelines do not provide examples or indications of what constitutes 'exceptional circumstances' which is appropriate because it is not for the Respondent to list a number of unusual situations that an employee can choose from. The ambit of the term allows for anyone who believes their circumstances may be exceptional to outline those circumstances and put their best case forward.

…

There are also no examples of what evidence should be adduced in support of the exceptional circumstances other than that the evidence must be relevant to the exceptional circumstances. That is a reasonable provision considering the Respondent is unaware of what exceptional circumstances will be presented and therefore cannot forecast ahead to the evidence required. The requisite evidence will be dependent upon the specific circumstances.

For those reasons, I reject the argument that the decision was not fair and reasonable because the Direction and Guidelines do not provide an indication of what constitutes 'exceptional circumstances'.[22]

  1. [56]
    I similarly find that it was not incumbent upon the Respondent to define a "reasonable excuse" but rather the onus is on the Appellant to put forward their excuse for the Respondent's consideration.
  1. [57]
    I have reviewed the submissions presented by the Appellant's colleagues, however reject the argument that those submissions ought to have weighed heavily in the decision-maker's consideration. The opinions of those colleagues do not negate the fact the Appellant has failed to comply with the direction.
  1. [58]
    The Appellant submits the Disciplinary Decision is not fair or reasonable because it fails to provide her with details of how to fulfil the Policy. In her Appeal Notice, the Appellant requests answers to several questions, including the following:
  • What is COVID-19?

…

  • What is a 'vaccination'?

…

  • Does this require travel to any other location not within my normal duties?
  • Does this direction require participation in any way shape or form a medical service?

…

  • What will the penalty be for declining to participate in the directions?[23]
  1. [59]
    The Appellant appears to argue that for consent to be legally valid, the Policy must cover the specific procedure that is to be performed.[24]
  1. [60]
    I note firstly that the "DES all staff communique" issued 27 January 2022 provides telephone numbers and an email contact for staff to seek support and assistance with respect to the vaccination requirements. The Appellant could have taken the initiative to investigate the answers to her numerous questions herself by seeking the support offered, searching online or contacting a medical professional. There is an abundance of information available through Queensland Government resources with respect to obtaining the COVID-19 vaccination.
  1. [61]
    Further, the Policy stipulates that should an employee require any further information or clarification, they are to contact their supervisor or manager, Human Resource support or People and Culture, Corporate Services for which an email address was provided.[25]
  1. [62]
    I am satisfied the Policy clearly defines what it means to be "Fully vaccinated", what is required with respect to "Evidence of Vaccination", what an "Eligible health professional" means and the definition of a "COVID-19 vaccine".[26] The Policy also clearly stipulates that non-compliance with vaccination requirements may lead to the commencement of a disciplinary process.[27]
  1. [63]
    The Policy clearly requires the Appellant to identify a medical service that offers COVID-19 vaccinations, attend that service, obtain the vaccination and provide evidence. The Appellant's suggestion that the requirements for compliance are convoluted is untenable. In the event the Appellant held doubts as to how to comply, assistance was available to her. The fact that she elected not to take the initiative to seek that assistance renders this excuse unreasonable. 
  1. [64]
    The Appellant refers to s 109 of the Australian Constitution which provides:

When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.

  1. [65]
    The Appellant contends that because there is no federal mandate to receive the COVID-19 vaccination, s 109 of the Australian Constitution acts to "revoke the illegal imposition" of the Policy.[28] Based on the plain reading of s 109 of the Australian Constitution, that argument is untenable. The Appellant has not identified a relevant law of the Commonwealth and therefore I cannot discern which laws she is alleging there is an inconsistency between. I do not accept that a law of a State is inconsistent with a law of the Commonwealth that does not exist. 
  1. [66]
    With respect to s 51 of the Australian Constitution, I accept Industrial Commissioner Hartigan's conclusions in Tilley v State of Queensland (Queensland Health):
  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 provisions. 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[29] the High Court, in considering s 51 (xxiiiA) of the Constitution, relevantly held:[30]

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 Commonwealth64; it also may be for the benefit of third parties, if at the direction of the Commonwealth.

  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.[31]
  1. [67]
    On that basis, I find the Appellant's arguments with respect to the Australian Constitution do not constitute a reasonable excuse for non-compliance with the Policy.
  1. [68]
    With respect to the Appellant's arguments regarding "coercion", I accept the Respondent's submission that it is not a party to the provision of vaccination services – it merely requires that employees obtain the vaccination from the appropriate medical service. The decision to obtain the vaccination is for the employee and any discussions or practice with respect to receiving the vaccination is between the employee and a medical professional.
  1. [69]
    The Appellant issued Ms Van Der Laak with a document dated 13 January 2022, entitled "NOTICE TO PRINCIPAL IS NOTICE TO AGENT, NOTICE TO AGENT IS NOTICE TO PRINCIPAL". The document effectively seeks that Ms Van Der Laak "Take note Health Directions, Health Orders, Rules, Lock Downs, Policies, Mandates, Directions and Directives are recommendations and offers of contract only, not LAW." The Notice requests "valid proof of claim with physical material evidence within 72 hours" that the Policy is lawful and based on Constitutional guarantees. The Notice concludes with:

Should I not receive your response by the close of business 18/01/2022 I will consider this your tacit agreement that you accept that your policy, directions and actions are unlawful and unreasonable and that you accept my lawful right to DECLINE all offers now or in the future as I see fit.

  1. [70]
    Similar Notices were also issued on 28 January 2022, 8 February 2022 and 22 February 2022. The Appellant also annexed to her submissions a "Proof of Claim that the irreversible medical procedure that is the COVID 19 vaccination is not safe nor effective". The authors of that article do not appear to be medical professionals. The Respondent noted the COVID-19 vaccinations have been approved for use through the Therapeutic Goods Administration approval process and the Respondent has adhered to advice from the Queensland Chief Health Officer. I accept that adhering to such advice is reasonable and appropriate in comparison to the articles submitted by the Appellant which do not appear to have been authored by medical professionals.
  1. [71]
    I do not find it unreasonable that the Department elected not to respond to the various Notices within the time limits imposed by the Appellant. Clearly the Policy does not constitute an "offer" but is rather a lawful direction and non-compliance with that direction may lead to the commencement of a discipline process as forecast in cl 8.5 of the Policy. I find it was appropriate for the Respondent to proceed with the disciplinary process as it did.
  1. [72]
    I find that the other matters, referred to above as raised by the Appellant, form the basis of her personal preference not to receive the COVID-19 vaccination. I am not convinced that that the matters relied on by the Appellant result in the Policy being unreasonable or unlawful. In this regard, cl 2 of the Policy identifies that COVID-19 has had a significant global impact, Queensland is seeing a significant increase in community transmission following the relaxation of quarantine requirements and increased travel and having the COVID-19 vaccination is an important step to take to reduce the serious effects of COVID-19.  I consider that to be reasonable.
  1. [73]
    The Appellant raised concerns regarding the COVID-19 vaccinations and referred to research she had seemingly undertaken herself. The Appellant has had significant time to discuss any concerns with a medical professional who could have provided her with expert guidance and if appropriate, issued a letter outlining a medical contraindication warranting exemption. The Appellant has not provided such evidence and I find that her opinion with respect to the medical evidence simply differs from that of the Respondent.
  1. [74]
    As Industrial Commissioner Hartigan concluded in Tilley v State of Queensland (Queensland Health):

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 encumbent 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.[32]

Reasonable satisfaction

  1. [75]
    The Appellant was given notice about the requirements to comply with the Policy on several occasions. Once in force, the requirements of cls 8.1 and 8.2 of the Policy became a condition of the Appellant's employment. The Appellant did not seek an exemption pursuant to cl 8.2 of the Policy. Accordingly, I consider that it was open on the evidence before the decision maker to find that Allegation One was substantiated.
  1. [76]
    In terms of the process, the Appellant was advised of Allegation One and provided with an opportunity to respond. I consider that the decision maker did have regard to the Appellant's written response before determining that Allegation One was substantiated.
  1. [77]
    Further, the Appellant's submissions indicate she does not intend to comply with the condition in the immediate future.

Conclusion

  1. [78]
    I have reviewed the Disciplinary Decision and conclude it was fair and reasonable for the decision-maker to conclude the Appellant had contravened, without reasonable excuse, a direction given to her as a Department employee by a responsible person, pursuant to s 187(1)(d) of the PS Act.
  1. [79]
    For the above reasons, I consider that the Disciplinary Decision and the decision-making process was fair and reasonable.
  1. [80]
    I order accordingly.

Order

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

Footnotes

[1] Appeal Notice, 28 February 2022, 1.

[2] Letter from Ms V. Van Der Laak to the Appellant, 9 February 2022.

[3] Letter from Ms V. Van Der Laak to the Appellant, 23 February 2022.

[4] Appellant's Submissions, 16 March 2022, 1 [3].

[5] Letter from Ms V. Van Der Laak to the Appellant, 23 February 2022, 4.

[6] [2022] QIRC 076, 5 [19].

[7] Ibid.

[8] [2021] QIRC 317.

[9] [2022] QIRC 030, 5 [15].

[10] Industrial Relations Act 2016 (Qld) s 562B(3).

[11] 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).

[12] COVID-19 Vaccination Requirements – Policy & Procedure cl 1.

[13] Respondent's Submissions, 23 March 2022, [12].

[14] Ibid [14].

[15] Letter from Ms V. Van Der Laak to the Appellant, 9 February 2022, 2.

[16] Appellant's Submissions, 16 March 2022.

[17] Appellant's Submissions in Reply, 30 March 2022.

[18] [2022] QIRC 226.

[19] See as but one example the decision of the Full Bench in Brasell-Dellow & Ors v State of Queensland,  (Queensland Police Service) & Ors [2021] QIRC 356.

[20] ATAGI is the principal advisor to government on inter alia vaccine safety. See also Kathryn Roy-Chowdhury v The Ivanhoe Girls’ Grammar School [2022] FWC 849 at [103]. 

[21] Brasell-Dellow & Ors v State of Queensland, (Queensland Police Service) & Ors [2021] QIRC 356, [124]-[128].

[22] [2021] QIRC 414, 9-10.

[23] Appeal Notice, 28 February 2022, Schedule 1: Part C.

[24] Appellant's Submissions, 16 March 2022, [29].

[25] COVID-19 Vaccination Requirements – Policy & Procedure cl 15.

[26] Ibid cl 12.

[27] Ibid cl 8.5.

[28] Appellant's Submissions in Reply, 30 March 2022, [8].

[29] [2009] HCA 3.

[30] Ibid [60].

[31] [2022] QIRC 2, 12-13.

[32] [2022] QIRC 002, 13 [39].

Close

Editorial Notes

  • Published Case Name:

    Batchelor v State of Queensland (Department of Environment and Science)

  • Shortened Case Name:

    Batchelor v State of Queensland (Department of Environment and Science)

  • MNC:

    [2022] QIRC 252

  • Court:

    QIRC

  • Judge(s):

    Member McLennan IC

  • Date:

    29 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
Brasell-Dellow v State of Queensland, (Queensland Police Service) [2021] QIRC 356
3 citations
Jump To
Cite 1 - [2021] QIRC 356
Cite 2 - [2021] QIRC 356
Cite 3 - [2021] QIRC 356
Goodall v State of Queensland [2018] QSC 319
1 citation
Jump To
Cite 1 - [2018] QSC 319
Graffunder v State of Queensland (Queensland Health) [2022] QIRC 76
2 citations
Jump To
Cite 1 - [2022] QIRC 76
Cite 2 - [2022] QIRC 76
Gundrum v State of Queensland (Queensland Health) [2022] QIRC 226
2 citations
Jump To
Cite 1 - [2022] QIRC 226
Cite 2 - [2022] QIRC 226
Higgins v State of Queensland (Queensland Health) [2022] QIRC 30
2 citations
Jump To
Cite 1 - [2022] QIRC 30
Cite 2 - [2022] QIRC 30
Hutchison v State of Queensland (Queensland Health) [2021] QIRC 317
2 citations
Jump To
Cite 1 - [2021] QIRC 317
Cite 2 - [2021] QIRC 317
Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320
1 citation
Jump To
Cite 1 - [2021] NSWSC 1320
Kathryn Roy-Chowdhury v The Ivanhoe Girls' Grammar School [2022] FWC 849
2 citations
Jump To
Cite 1 - [2022] FWC 849
Cite 2 - [2022] FWC 849
Radev v State of Queensland (Queensland Police Service) [2021] QIRC 414
2 citations
Jump To
Cite 1 - [2021] QIRC 414
Cite 2 - [2021] QIRC 414
Tilley v State of Queensland (Queensland Health) [2022] QIRC 2
4 citations
Jump To
Cite 1 - [2022] QIRC 2
Cite 2 - [2022] QIRC 2
Cite 3 - [2022] QIRC 2
Cite 4 - [2022] QIRC 2
Wong v Commonwealth [2009] HCA 3
3 citations
Jump To
Cite 1 - [2009] HCA 3
Cite 2 - [2009] HCA 3
Cite 3 - [2009] HCA 3

Cases Citing

Case NameFull CitationFrequency
Daunt v State of Queensland (Department of Education) [2024] QIRC 2511 citation
Davenport v State of Queensland (Department of Education) [2024] QIRC 2062 citations
Starkey v State of Queensland (Department of Education) [2024] QIRC 2962 citations
Temple v State of Queensland (Department of Education) [2024] QIRC 2981 citation
Vize v State of Queensland (Department of Environment and Science) [2022] QIRC 4452 citations
1

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