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- Hanson v State of Queensland (Queensland Health)[2022] QIRC 272
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Hanson v State of Queensland (Queensland Health)[2022] QIRC 272
Hanson v State of Queensland (Queensland Health)[2022] QIRC 272
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Hanson v State of Queensland (Queensland Health) [2022] QIRC 272 |
PARTIES: | Hanson, Helen (Appellant) v State of Queensland (Queensland Health) (Respondent) |
CASE NO: | PSA/2022/296 |
PROCEEDING: | Public Service Appeal – Appeal against a fair treatment decision |
DELIVERED EX TEMPORE ON: | 14 July 2022 |
MEMBER: | Dwyer IC |
HEARD AT: | Brisbane |
ORDER: | 1. The decision appealed against is set aside; and 2. The matter is returned to decision maker with a copy of this decision; and 3. The decision maker is directed to: a. reconsider the application for review dated 13 January 2022; and b. issue a new decision within 28 days of this decision. |
CATCHWORDS: | PUBLIC SERVICE – APPEAL – appeal against a fair treatment decision – where appellant employed by the State of Queensland as a registered nurse – where the Health Employment Directive No.12/21 – Employee COVID-19 vaccination requirements required employees to receive at least a first dose of a COVID-19 vaccine by 30 September 2021 and receive the second dose of a COVID-19 vaccine by 31 October 2021 – where the appellant sought an exemption due to genuine religious belief and other exceptional circumstances – where exemption was refused – where decision maker did not properly consider appellant's religious beliefs – where decision is absent of written analysis of if and how the religious beliefs were considered – where decision does not comply with the terms of Individual employee grievances (Directive 11/20) – where decision not fair and reasonable – decision appealed against set aside and matter returned to decision maker with a copy of decision on appeal and directions to conduct a fresh internal review |
LEGISLATION: | Industrial Relations Act 2016 (Qld) ss 562B, 562C, 564 Public Service Act 2008 (Qld) s 194 Health Employment Directive No. 12/21 - Employee COVID-19 vaccination requirements Individual employee grievances (Directive 11/20) Work Health and Safety Act 2011 (Qld) |
CASES: | Higgins v State of Queensland (Queensland Health) [2022] QIRC 030 Amaya v State of Queensland (Queensland Health) [2022] QIRC 117 Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018) Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245 Kay v State of Queensland (Queensland Health) [2022] QIRC 270 Slykerman v State of Queensland (Queensland Health) [2022] QIRC 039 Sunny v State of Queensland (Queensland Health) [2022] QIRC 119 Collins v State of Queensland (Queensland Health) [2022] QIRC 215 Edwards v State of Queensland (Queensland Health) [2022] QIRC 091 Barbagallo v State of Queensland (Queensland Health) [2022] QIRC 195 McPaul v State of Queensland (Queensland Health) [2022] QIRC 175 Brasell-Dellow & Ors v State of Queensland (Queensland Police Service) & Ors [2021] QIRC 356 |
APPEARANCES: | Ms H Hanson, the appellant Ms S Bainbridge for the respondent |
Reasons for Decision (ex tempore)
Background
- [1]Ms Helen Hanson is employed part time as a registered nurse in a regional hospital by Queensland Health, ('the department'). It is not controversial that the Health Employment Directive 12/21 ('the directive') applied to her and that she has not complied with the requirement to be vaccinated against COVID-19 set out in that directive.
- [2]On 22 October 2021, in accordance with the directive, Ms Hanson applied for an exemption. In her application, she cited the ground of genuinely held religious belief. In short, in relation to this ground, Ms Hanson submitted that her personal religious beliefs were inconsistent with receiving vaccination.
- [3]Ms Hanson did not provide any letter from a person identified as a religious leader or official as required. She provided a letter (purportedly) from a church member but I note that is not what the exemption requirement stipulates.
- [4]Additionally, in the section of the exemption application form dealing with 'other exceptional circumstances' the words 'Please see attachments' appear in handwriting in the portion dealing with evidence requirements. I note that it has subsequently been disputed by Ms Hanson that she applied for an exemption on the ground of 'other exceptional circumstances'.
- [5]Further, in the attachments to her exemption application, there is a letter from Ms Hanson that (amongst many other things related to her genuine religious beliefs) also makes reference to her suffering previously from chronic fatigue syndrome and Hashimoto's disease.
- [6]In those circumstances it is not difficult to understand how a decision maker may have considered Ms Hanson had intended to rely on those matters for an exemption as 'other exceptional circumstances'.
- [7]It does not matter particularly for the purposes of this appeal whether Ms Hanson intended to rely on those medical conditions as 'other exceptional circumstances' or not. Consideration by a decision maker of a ground not intended to be relied on does not cause Ms Hanson any prejudice.
- [8]Ms Hanson's application for exemption was refused on 22 December 2021. The decision letter in respect of the initial decision declining her exemption in this matter relevantly reads as follows:
Your exemption application
In your application dated 22 October 2021 you identify that you have medical conditions relating to chronic fatigue and Hashimoto's disease which precludes you from receiving two doses of a COVID-19 vaccine and are subsequently seeking an exemption to the conditions of the Directive and Policy.
You included a letter from Marion Brown, Seventh Day Adventist, dated 21 October 2021 in your application which outlined your deeply held religious belief such that you are unable to receive any COVID-19 vaccine.
Your application for an exemption and the supporting documents you submitted were considered and specialist advice was sought on 2 December 2021 in relation to your individual circumstances.
Assessment of your application on grounds of an objection due to a 'genuinely held religious belief'
In assessing your application for an exemption, consideration was given to all the information available, including your application and supporting evidence provided by you and the requirement of your role.
I have decided to refuse your application for exemption on the grounds of genuinely held religious belief.
- [9]Attachment 5 to the submissions filed by Department on 12 April 2022 is the 'Employee COVID-19 vaccine exemption decision review application form'. The submissions of the Department filed on 12 April 2022 state that Ms Hanson requested a review of the exemption refusal decision on 1 January 2022.[1] However, an examination of Attachment 5 does not precisely indicate when Ms Hanson made this request.
- [10]On page 2 of Attachment 5, next to the words 'Date exemption review decision received' there appears a handwritten date '01/01/21'.[2] But then, on page 3 of Attachment 5, under the heading 'Employee Certification' there appears (presumably) Ms Hanson's signature immediately above a date (in type print) that reads '13/01/22'.
- [11]There was no controversy raised at the hearing with respect to the fact that Ms Hanson made the request for internal review, but the date is far from clear. In all of the circumstances I consider it most likely that Ms Hanson made her request for internal review on or about 13 January 2022 and for the purposes of these reasons, I will designate that date as the date of her request.
- [12]Ms Hanson's application for review was accompanied by an extensive submission explaining her religious objections and also pointing out her complaint that her religious views were not addressed by the previous decision-maker.
- [13]On 25 January 2022, a decision was issued upholding the exemption refusal. That decision relevantly reads:
Steps taken to review your request to seek a review of a decision
In reviewing your application, I have considered all the information considered by the vaccination exemption review committee, which included any supporting evidence provided by you and the requirements of your role.
Additionally, I note that you have not provided any new information that was not previously considered by the vaccination exemption review committee.
I have approached consideration of your review with the intention of the directive in mind, specifically the requirement to ensure the readiness of the health system in responding to the COVID-19 pandemic to protect the lives of employees, patients and the community they serve. The directive contemplates the high risk to public health associated with work performed in healthcare settings and will ensure Queensland Health can provide a safe environment for both employees and patients. I have also considered the impact on your human rights.
Following consideration of your request for a review of the decision, I have determined the decision of the vaccination exemption review committee, for the reasons outlined to you in correspondence dated 22 December 2021, that an exemption from the requirement to be vaccinated in accordance with the directive is not granted.
- [14]I note that the decision of 25 January 2022 does not contain the word 'religion' or the phrase 'religious beliefs'. The decision did, however, include information about Ms Hanson's subsequent appeal rights to this Commission in the event she was dissatisfied with the decision.
- [15]Somewhat incredibly, on 2 February 2022 (within five business days of the decision of 25 January 2022 and before the expiration of the appeal period identified in that correspondence) the Department began a formal disciplinary process against Ms Hanson, including suspending her employment.
- [16]While there was no technical barrier to initiating a disciplinary process so rapidly, it is arguably an unfair curtailment (at the very least) of the procedural fairness to which Ms Hanson should have been afforded with respect to exercising her appeal rights on the exemption refusal decision. It is difficult to understand why the Department would have gone to the trouble of expressly informing Ms Hanson of her appeal rights in that regard, but then almost immediately commence a new and serious disciplinary process. This would likely have had an overwhelming effect on Ms Hanson.
- [17]I consider the duplication of processes likely placed Ms Hanson under undue pressure and, while she has not complained about this, I consider that it is possible that it was this pressure that led to Ms Hanson's erroneous conflation of decisions of the Department that I describe in the following paragraphs.
- [18]Ms Hanson engaged with the disciplinary process through her legal representatives in correspondence on 16 February 2022. She also filed this appeal on 17 February 2022. Ms Hanson's Appeal Notice identified the basis of her appeal in Part C as follows:
I want to appeal a decision made in relation to a rejection of my vaccination exemption based on genuinely held religious beliefs and subsequent suspension of employment.
(Emphasis added)
- [19]It is clear from this pleading in her Appeal Notice that Ms Hanson sought to appeal the exemption refusal that was the subject of the decision of 25 January 2022. She also sought to appeal the decision to suspend her employment on a normal remuneration, which was the subject of a subsequent and separate decision as part of the disciplinary process that had commenced.
- [20]Ms Hanson's appeal on those stated grounds was confronted with technical difficulties in that:
- firstly, an appeal can only be in respect of a single decision;
- secondly, the appeal against the exemption refusal was two days outside the statutory time limit;[3] and
- thirdly, the appeal against the suspension on normal remuneration was incompetent and not allowed in accordance with the terms of the Public Service Act 2008 (Qld) ('the PS Act').[4]
- [21]Following a series of mentions held to identify which decision it was that Ms Hanson wanted to appeal, the Department appropriately agreed not to object to the appeal of the exemption decision outside of the statutory time limit. The exemption decision was then agreed to be the decision under review for the purposes of this appeal.
- [22]The Department also agreed to pause any further steps of the disciplinary process initiated on 2 February 2022.
- [23]In the circumstances this appeal is limited to a review of the decision of Ms Robyn Bradley dated 25 January 2022.
Statutory framework for public service appeals
- [24]The appeal is made pursuant to chapter 11 of the Industrial Relations Act 2016 (Qld) ('the IR Act'), which provides the Queensland Industrial Relations Commission ('the Commission') with jurisdiction to deal with appeals under the PS Act.
- [25]An appeal is a review of a decision. It is not a rehearing of the matter on its merits.[5] The word 'review' is not defined and accordingly it must take its meaning from the context in which it appears.[6] I am required to review the decision of Ms Bradley to determine whether that decision was fair and reasonable.[7]
- [26]The IR Act limits the powers of the Commission with respect to such appeals and the orders that can be made, namely:[8]
- (a)confirm the decision appealed against; or
- (b)for an appeal against a promotion decision—set the decision aside, and return the matter to the decision maker with a copy of the decision on appeal and any directions permitted under a directive of the commission chief executive under the Public Service Act 2008 that the commission considers appropriate; 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.
Submissions of the parties
- [27]The parties in these proceedings filed written submissions in accordance with Directions issued on 25 March 2022. For the reasons that follow it is not necessary for me to restate or deal with most of the matters raised by Ms Hanson in her written submissions. I will instead deal with the salient portions of those submissions that have ultimately informed my conclusion.
Submissions of Ms Hanson
- [28]The submissions filed by Ms Hanson on 9 May 2022 traverse a number of aspects of this appeal and other legal arguments. Buried deep within this virtual cacophony of assertions and legal arguments (a number of which are misconceived) there is a submission that Ms Hanson's genuinely held religious beliefs were not acknowledged until five months after she lodged her exemption application.[9]
- [29]This submission appears as something of an afterthought but, as I will explain in my conclusions, it is a significant point. Indeed, I consider it is the most compelling point made by Ms Hanson in this appeal.
Submissions of the Department
- [30]The Department has responded to the assertion that Ms Hanson's genuine religious beliefs were not acknowledged by simply rejecting that proposition but alternatively, by submitting that any failure to acknowledge Ms Hanson's beliefs was remedied in correspondence they sent to Ms Hanson's solicitor on 1 March 2022 at the commencement of the show-cause process.
Consideration
- [31]The basis of Ms Hanson's right to request an internal review of the initial decision refusing her exemption is not identified by either party. I note the provisions of the Individual employee grievances (Directive 11/20) ('Directive 11/20') deals with individual employee grievances.
- [32]I note that Directive 11/20 applies to public service employees (including Ms Hanson). I note that clause 9.2 of that directive provides an avenue for an employee to request an internal review.
- [33]Clause 9.2(h), provides:
- (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:
- (i)outline the action taken to review the decision made through local action
- (ii)outline the reasons for the decision, or the decision to take no further action
…
- [34]I will assume Ms Hanson sought the internal review pursuant to Directive 11/20 but even if it somehow does not apply to her, the obligations of the decision-maker set out in clause 9.2(h) represent what I consider to be an appropriate basic standard to apply when considering whether Ms Hanson's genuine religious beliefs were considered or (importantly) whether there is evidence that they were considered.
- [35]
[29] As noted above, the role of the Commission in an appeal such as this, is to conduct a review of the decision to determine whether it is fair and reasonable.
[30] In considering whether a decision is fair and reasonable, regard will be had to the reasons provided in support of the decision. The purpose of the reasons, inter alia, is to provide an explanation to the reader as to how the decision came to be made. Such reasoning should be apparent in the terms of the reasons.
[31] The reasons provided in support of the decision subject to this appeal do not explain what regard the decision maker had to Ms Amaya's religious beliefs. The decision is absent any written analysis of Ms Amaya's religious beliefs and how such religious beliefs were considered with respect to the exemption sought by Ms Amaya and in the terms of the operation of the Directive.
…
[34] I consider the decision subject to this appeal, failed to meaningfully consider Ms Amaya's religious beliefs. Indeed, the decision does not refer to Ms Amaya's religious beliefs in any detailed way under the headings 'My review' and 'My decision'.
[35] Directive 11/20 outlines, at cl 9.2, the process for an internal review. Relevantly, cl 9.2(h)(ii) provides, inter alia¸ that upon completing an internal review, the delegate must provide a written decision outlining the reasons for the decision. If the decision maker did meaningfully consider Ms Amaya's religious beliefs when undertaking the internal review, then such consideration is absent from the reasons.
[36] The result of the failure to meaningfully consider Ms Amaya's religious beliefs is that Ms Amaya, and the Commission now considering this appeal, can not determine what regard was had to Ms Amaya's religious beliefs in conducting the internal review.
- [36]In the circumstances where the decision under the appeal in Ms Hanson's matter does not even include the word 'religion' or the phrase 'religious beliefs', I consider Ms Hanson is rightly entitled to feel that her beliefs were not considered or at least, not properly considered. When reading the decision I am unable to objectively understand the standard or extent of the Department's consideration of Ms Hanson's religious beliefs.
- [37]Further, while I note that the decision-maker refers to having regard to the material considered by the primary decision-maker, there is no information confirming what that material was. Additionally, it is not enough for a decision-maker to simply cite reference to material previously considered.
- [38]A decision-maker, whether on review or otherwise, must adequately provide reasons to the extent that the subject employee, when they read the decision, can understand why the decision was made. More importantly, when reading a decision an employee must also be able to be satisfied that their nominated grounds were identified and considered.
- [39]This does not mean that reasons have to be complex to achieve this standard.[11] There is no template for such a process. The circumstances of each case ought to determine the extent and complexity of the reasons for decision that are provided.
- [40]In all of the circumstances, I consider the decision of 25 January 2022 is deficient in that it fails to demonstrate what (if any) consideration of Ms Hanson's cited beliefs was undertaken. Indeed, it fails to even identify her beliefs were the basis of her application.
- [41]Further, it is irrelevant to my review of the decision that the Department made subsequent efforts to explain their reasoning. In circumstances where I am concerned to consider the fairness or reasonableness of a decision, subsequent conduct of the Department cannot alter the character of the decision.
- [42]In all of the circumstances, I consider that the decision was unfair and unreasonable. I propose to return the matter to the decision-maker for reconsideration.
Conclusion
- [43]Before making orders, a number of matters ought to be made clear. Firstly, Ms Hanson should not consider that this decision is an indication that I consider she should be entitled to an exemption. That is not a matter that I need to determine in this appeal. However Ms Hanson (and those who advise her) would be well-advised to have regard to the growing body of decisions from this Commission dealing with similar applications.[12]
- [44]Secondly, to be clear, this decision does not allow Ms Hanson to lodge a fresh application for exemption. The unfairness identified in this decision is restricted to the adequacy of the reasons given in the decision of 25 January 2022. That unfairness can be remedied by a new decision that demonstrates that the decision-maker has understood Ms Hanson's beliefs and how she says that they prevent her from complying. The decision maker must then demonstrate how or why those beliefs either do (or do not) give rise to an entitlement to an exemption.
- [45]Finally, for completeness, Ms Hanson's written submissions filed 9 May 2022 commence with an outline of her arguments in this appeal.[13] While I have noted that I do not need to deal with the matters raised in those submissions, it is important to note that the premise of the arguments set out in those submissions fundamentally misunderstands and mis-states the function of the Commission when considering such appeals in that they seek to define the issue for determination in this appeal or the 'sole question to be determined' in terms that are far more expansive and complex than the jurisdiction granted to the Commission.[14] While the matters identified in those submissions might purport to form a basis for submitting that a decision was unfair or unreasonable, they extend the consideration well beyond the matters under consideration by the decision maker and are, in reality, a direct challenge to the construction of the exemption clause of the directive more broadly.
- [46]Beyond that, it appears that Ms Hanson seeks to argue that the exemption process ought to be construed as producing an obligation on the Department to consult personally with Ms Hanson about safe methods of work once her religious beliefs are established. Those submissions are (at best) an ambitious attempt to contort Ms Hanson's obligation to comply with a lawful and reasonable direction in the face of the Department's need to manage a serious workplace health and safety risk.
- [47]The opportunity to apply for an exemption afforded to employees such as Ms Hanson creates no other obligation for the Department other than to consider whether the established beliefs are such that they warrant exemption from compliance with a lawful and reasonable direction. There is no obligation beyond that.
- [48]Further, the language of both the directive and the exemption application forms makes very clear that the consideration to be given to an application is in the context of the Department’s obligations which, in this instance, would include the significant obligations imposed by the Work Health and Safety Act 2011 (Qld).
- [49]In short, it is not a consideration of whether Ms Hanson has the belief asserted, although naturally that must be established first. It is a consideration of whether Ms Hanson’s beliefs (once proven) are such that they could reasonably excuse her from compliance with the directive when weighed against the obligations to prevent risk of injury or death to all persons to whom the Department owes a statutory or common law duty.
- [50]The notion of an obligation for personal consultation arising in the context of the imposition of the directive was roundly dismissed by the Full Bench in Brasell-Dellow & Ors v State of Queensland (Queensland Police Service) & Ors.[15] While it is not a directly comparable scenario, it would be inconsistent to conclude that the Department was not obliged to personally consult about safety prior to putting the directive into effect but then somehow incurred such an obligation as a consequence of having done so.
- [51]Finally, I note the obligation for personal consultation asserted by Ms Hanson is not supported by any authority or by reference to any recognised principle of law.
- [52]Decisions of this Commission and other courts around the country provide no support for employees refusing to comply with vaccine mandates. No decision on this or related issues could engender any reasonable expectation that an employee who refuses to comply with a lawful and reasonable direction should not be subject to sanctions including termination of their employment. Ms Hanson ought to consider carefully the fate of every other application brought in similar circumstances to hers before expending funds or incurring the risks of costs orders on futile arguments.
Order
- [53]In all of the circumstances, I make the following orders:
- The decision appealed against is set aside; and
- The matter is returned to decision maker with a copy of this decision; and
- The decision maker is directed to:
- reconsider application for review dated 13 January 2022; and
- issue new decision within 28 days of this decision.
Footnotes
[1] See paragraph 16.
[2] This is clearly an error and most probably should read 01/01/22 given the decision in question was dated 22/12/21.
[3] Industrial Relations Act 2016 (Qld) s 564.
[4] Public Service Act 2008 (Qld) s 194(1)(bb); Higgins v State of Queensland (Queensland Health) [2022] QIRC 030, [50]-[52].
[5] Industrial Relations Act 2016 (Qld) s 562B; Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018), 5.
[6] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261 (Mason CJ, Brennan and Toohey JJ).
[7] Industrial Relations Act 2016 (Qld) s 562B(3).
[8] Ibid s 562C.
[9] Paragraph 22 of the Appellant’s submissions filed 9 May 2022.
[10] Amaya v State of Queensland (Queensland Health) [2022] QIRC 117.
[11] Kay v State of Queensland (Queensland Health) [2022] QIRC 270.
[12] See for example: Slykerman v State of Queensland (Queensland Health) [2022] QIRC 039; Sunny v State of Queensland (Queensland Health) [2022] QIRC 119; Collins v State of Queensland (Queensland Health) [2022] QIRC 215; Edwards v State of Queensland (Queensland Health) [2022] QIRC 091; Barbagallo v State of Queensland (Queensland Health) [2022] QIRC 195; McPaul v State of Queensland (Queensland Health) [2022] QIRC 175. There are numerous others.
[13] See paragraphs 1-6 of the submissions filed 9 May 2022.
[14] Industrial Relations Act 2016 (Qld) s 562B(3).
[15] [2021] QIRC 356.