Leask v State of Queensland (Queensland Health)
[2022] QIRC 253
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- Unreported Judgment
- Leask v State of Queensland (Queensland Health)[2022] QIRC 253
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Leask v State of Queensland (Queensland Health)[2022] QIRC 253
Leask v State of Queensland (Queensland Health)[2022] QIRC 253
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Leask v State of Queensland (Queensland Health) [2022] QIRC 253 |
PARTIES: | Leask, Rachel Ann (Appellant) v State of Queensland (Queensland Health) (Respondent) |
CASE NO.: | PSA/2022/381 |
PROCEEDING: | Public Service Appeal - Fair treatment decision |
DELIVERED ON: | 13 June 2022 |
HEARING DATE: | 13 June 2022 |
MEMBER: | Merrell DP |
HEARD AT: | Brisbane |
ORDER: | Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appealed against is confirmed. |
CATCHWORDS: | PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL – Appellant employed on a casual basis as an Enrolled Nurse by the State of Queensland in the Sunshine Coast Hospital and Health Service at the Gympie General Hospital – cl 8 of the Health Employment Directive No. 12/21 – Employee COVID‑19 vaccination requirements requires existing employees who are employed to work in a hospital or other facility, where clinical care or support is provided, to have received at least a first dose of a COVID-19 vaccine by 30 September 2021 and a second dose of a COVID‑19 vaccine by 31 October 2021 unless exempted – Appellant applied for an exemption – exemption not granted – Appellant sought internal review of decision not to grant an exemption – internal review decision confirmed decision not to grant an exemption – appeal against internal review decision – whether internal review decision was fair and reasonable – internal review decision was fair and reasonable – decision reviewing exemption decision confirmed |
LEGISLATION: | Hospital and Health Boards Act 2011, s 51A Industrial Relations Act 2016, s 562B and s 562C |
CASES: | Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203; (2020) 305 IR 311 |
APPEARANCES: | The Appellant in person. Mr W. Campbell and Ms D. Conrad of the Sunshine Coast Hospital and Health Service for the Respondent. |
Reasons for Decision (ex tempore)
Introduction and background
- [1]Ms Rachel Ann Leask is employed on a casual basis by the State of Queensland as an Enrolled Nurse. Ms Leask is employed through Queensland Health ('the Department') at the Gympie General Hospital ('the Hospital'). The Hospital is part of the Sunshine Coast Hospital and Health Service ('the Health Service').
- [2]Dr John Wakefield, the former Chief Executive of the Department, pursuant to s 51A(1) of the Hospital and Health Boards Act 2011, approved, with effect from 11 September 2021, Health Employment Directive No. 12/21 - Employee COVID‑19 vaccination requirements ('the Directive').
- [3]Relevantly, the combined effect of cls 7 and 8 of the Directive is that employees who are employed to work in a hospital or other facility, where clinical care or support is provided, had to provide to their line manager, or upload into the designated system, evidence that they had received the first dose of a COVID‑19 vaccine by 30 September 2021 and that they had received the second dose of a COVID‑19 vaccine by 31 October 2021. By cl 10 of the Directive, an employee is not required to be so vaccinated if they are granted an exemption because the employee had a recognised medical contraindication, had a genuinely held religious belief or where '… another exceptional circumstance exists.'
- [4]It is not disputed that the Directive, by its terms, applied to Ms Leask.
- [5]By email dated 30 September 2021 from Ms Leask to the Nurse Manager at the Hospital, Ms Leask advised that she had not had the required vaccine and therefore would '… not be attending any of the shifts that have been allocated to me for an indefinite period of time. I would like to maintain my current casual status. Please let me know if this is not possible.'
- [6]By email dated 29 October 2021, Ms Leask received correspondence from Mr Warren Campbell, Acting Director of Human Resources Operations of the Health Service, advising Ms Leask that she was to provide evidence of receiving a COVID‑19 vaccine by 31 October 2021.
- [7]By further letter from Mr Campbell sent on 4 November 2021, Ms Leask was requested to provide evidence of receiving the first and/or second dose of a COVID-19 vaccine within seven days of her receipt of that letter, and that if she failed to provide evidence of receiving at least a first dose of a COVID-19 vaccine within seven days of her receipt of that letter, she may be subject to a disciplinary process.
- [8]By letter dated 17 November 2021 from Mr Colin Anderson, Executive Director, People and Culture, Ms Leask was invited to show cause, within 14 days, as to why a disciplinary finding should not be made against her in respect of the allegation, that in contravention of a direction given to her by a responsible person, she had not provided her line manager, or uploaded into the designated system, evidence of vaccination confirming that she had received the prescribed number of doses of a COVID-19 vaccine by 31 October 2021 ('the show cause notice').
- [9]On 7 December 2021, Ms Leask provided a response to the show cause notice. Ms Leask stated, amongst other things, that she had made herself unavailable for shifts due to her health. Subsequently, the disciplinary process was ceased and Ms Leask was advised by Ms Lisa Newport, Interim Chief Executive Officer of the Health Service, that she was required to submit an application for an exemption, in accordance with the Directive, within seven days of 13 December 2021.
- [10]On 23 December 2021, Ms Leask applied for an exemption on the basis that an exceptional circumstance existed, namely, the ongoing investigations of a health condition she had dating back to March 2019. By email dated 13 January 2022, Ms Leask applied for a further exemption stating that over the last few years she had undergone tests and investigations which were still ongoing and that she planned to return to work when her diagnosis was managed.
- [11]By letter dated 3 February 2022, Mr Campbell advised Ms Leask that her application for an exemption had been refused. On 16 February 2022, Ms Leask requested a review of the decision to refuse her exemption application.
- [12]By letter dated 24 February 2022, Mr Andrew Leggate, Acting Chief Information and Infrastructure Officer of the Health Service, confirmed the decision not to approve Ms Leask's application for an exemption ('the decision').
- [13]By appeal notice filed on 17 March 2022, Ms Leask, pursuant to ch 7, pt 1 of the Public Service Act 2008 ('the PS Act'), appealed against the decision.
- [14]
The decision
- [15]In the decision, Mr Leggate relevantly stated:
My review
- 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 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 13 January 2022, you applied for an exemption from mandatory vaccination against COVID-19.
- On 21 February 2022, your application was reviewed and considered by the COVID‑19 Employee Vaccination Exemption Review Panel and a recommendation put to the delegate for consideration and decision.
- On 3 February 2022, you were advised of the decision in relation to your application for an exemption, specifically, that your application was denied.
- On 16 February 2022, you applied for an internal review of the decision to decline your application for an exemption from vaccination against COVID-19.
I note in your request for an internal review, you have indicated health concerns, however, have not provided further supporting documentation.
While I may not mention all information contained in documents provided, I wish to advise I have fully and carefully considered everything you have provided.
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 3 February 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. You must receive the required dose and provide written confirmation that that [sic] you have complied with the requirement to be vaccinated against COVID-19 in accordance with the letter from Mr Campbell dated 3 February 2022.
Ms Leask's submissions
- [16]In her submissions, Ms Leask stated that she was appealing '… the denial for my request to obtain unpaid time off work whilst unvaccinated against COVID-19.' However, on any objective consideration of her appeal notice, the decision against which Ms Leask appeals is the decision by Mr Leggate in which he reviewed Mr Campbell's decision not to grant Ms Leask an exemption to the requirement that she be vaccinated in accordance with the Directive.
- [17]Ms Leask submitted that:
- she conveyed her health status to the Nurse Manager personally;
- since making herself unavailable, she has been blocked from sending or receiving communication by her Departmental email and she has also been blocked from using internet training sites used by the Department for mandatory training;
- in her response to the show cause notice, she stated that in the future, when she was available for shifts again, she would definitely provide evidence as required by cl 8.1 of the Directive;
- the way that she can protect the lives of departmental employees and patients is by not entering her place of employment and that, further, she will abide by the measures of social distancing and mask wearing were applicable; and
- she has been unable to renew her registration with the Australian Health Practitioner Regulation Agency because the Department has not allowed her access to training.
- [18]By way of conclusion, Ms Leask submitted that the circumstances in which she now finds herself have been manipulated to the effect of her being threatened with unemployment and deregistration.
The Department's submissions
- [19]The Department relevantly submitted that the decision was fair and reasonable because:
- exemption applications are considered on an individual basis, are 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;
- exemptions must relate to grounds in respect of the employee as an individual and other exceptional circumstances that affect or concern the individual employee, as opposed to general circumstances which may concern a large group of people;
- when Ms Leask did apply for an exemption, she stated she was seeking an exemption because she was having ongoing investigations of a health condition dating from March 2019 to the present time; however, she did not disclose the nature of the medical condition or the investigations and she did not provide any evidence which meant she was not able to safely receive a COVID-19 vaccine;
- it was up to Ms Leask to provide such information and evidence in support of her application; and
- having regard to the lack of information provided by Ms Leask in respect of her exemption application, Mr Leggate confirmed the initial decision to refuse Ms Leask's exemption application.
- [20]The Department further submitted that Ms Leask has not been manipulated or threatened into receiving the vaccination, she is not being deprived of the ability to provide her consent, she has been informed of the requirements to receive a COVID-19 vaccine and, in the absence of an approved exemption, she has been advised of the consequences if she does not comply.
- [21]By way of conclusion, the Department submitted that Ms Leask was a worker in health care and that she is not lawfully permitted to enter her usual workplace or other hospital or health care setting as an employee while she remains unvaccinated.
The decision was fair and reasonable
- [22]Annexed to the Department's submissions was Ms Leask's application for an exemption received by the Department on 23 December 2021. In the part of the application form where Ms Leask was asked to briefly detail the extenuating circumstances which precluded her from meeting the COVID-19 vaccination requirements, Ms Leask wrote:
Ongoing investigations of health condition dating from March 2019 to current. Next health care appointment with [name of medical practitioner and address withheld] on date 05/01/2022.
- [23]Also annexed to the Department's submissions was Ms Leask's further application for an exemption emailed to the Department on 13 January 2022. In the part of the application form where Ms Leask was asked to briefly detail the extenuating circumstances which precluded her from meeting the COVID-19 vaccination requirements, Ms Leask wrote:
At this time and over the past few yrs I have undergone tests & investigations which are still ongoing.
I however plan to return to work when my diagnosis is managed.
- [24]Mr Campbell, in informing Ms Leask of the principal decision about her application for an exemption, relevantly stated:
Based on the evidence before me, and having considered the advice of the Panel,[3] I have accepted their recommendation. While I acknowledge the concerns relating to your health, I have decided to refuse your exemption application.
The medical advice provided by you does not confirm that you have a recognised medical contraindication as outlined in the Australian Immunisation Handbook. I am therefore satisfied that you are able to comply with the mandate.
I am also satisfied that my decision to refuse your exemption application is compatible with human rights. While this decision engages or limits a number of your human rights, including a 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.
- [25]The material parts of the decision against which Ms Leask appeals are set out earlier in these reasons. In essence, Mr Leggate, in reviewing the decision, found that Mr Campbell undertook appropriate steps and consideration in relation to Ms Leask's mandatory vaccination exemption request. In particular, Mr Leggate, like that of Mr Campbell, noted that Ms Leask did not provide any proof of a recognised medical contraindication.
- [26]Having regard to the material provided by Ms Leask in both of her exemption applications, I agree with the conclusion reached by Mr Leggate. It was clear that Ms Leask, in both her formal applications for exemption, was indicating that she had a health issue that prevented her from receiving the mandatory doses of a COVID‑19 vaccine. Ms Leask provided no medical evidence in support of her contentions that she either had ongoing investigations of a health condition dating from March 2019 to the present or that she had been undergoing tests and investigations that were still ongoing about an unidentified diagnosis.
- [27]Put simply, despite the requirement for her to do so, Ms Leask did not identify the type of medical condition from which she was suffering and the nature of the tests or investigations she was undergoing.
- [28]On that basis, Mr Campbell's decision at first instance, and Mr Leggate's decision on review, were hardly surprising.
- [29]For these reasons, the decision appealed against was fair and reasonable.
Conclusion
- [30]For the reasons I have given, the exemption decision was fair and reasonable.
- [31]I confirm the decision.
Order
- [32]I make the following order:
Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appealed against is confirmed.