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Knight v State of Queensland (Queensland Ambulance Service)[2022] QIRC 283

Knight v State of Queensland (Queensland Ambulance Service)[2022] QIRC 283

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Knight v State of Queensland (Queensland Ambulance Service) [2022] QIRC 283

PARTIES:

Knight, Simon Alfred

(Appellant)

v

State of Queensland (Queensland Ambulance Service)

(Respondent)

CASE NO.:

PSA/2022/565

PROCEEDING:

Public Service Appeal

DELIVERED ON:

28 July 2022

HEARD AT:

On the papers

MEMBER:

McLennan IC

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 – where appellant applied for an exemption to COVID-19 vaccination requirements on the basis of exceptional circumstances and a genuinely held religious belief – where respondent refused appellants exemption application – where appellant applied for internal review of refusal to grant exemption – where upon review the respondent upheld the original refusal – whether exceptional circumstances exist – where decision is fair and reasonable – decision appealed against confirmed

LEGISLATION & OTHER

INSTRUMENTS:

Industrial Relations Act 2016 (Qld) s 451, s 562B, s 562C, s 564

Public Service Act 2008 (Qld) s 194

QAS HR Policy Employee COVID-19 Vaccination Requirements cl 2, cl 3, cl 5

QAS HR Procedure – COVID-19 Vaccine Requirements cl 3

CASES:

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

Gilmour v Waddell & Ors [2019] QSC 170

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

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

Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320

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

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

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

Tilley v State of Queensland (Queensland Health) [2022] QIRC 002

Reasons for Decision

Introduction

  1. [1]
    Mr Simon Knight (the Appellant) is employed as an Advanced Care Paramedic by Queensland Ambulance Service (QAS; the Respondent).[1]
  1. [2]
    On 13 September 2021, the Code of Practice and QAS HR Procedure – COVID-19 Vaccine Requirements (the Procedure) was published.[2]
  1. [3]
    The Procedure mandated that particular groups of QAS employees receive the COVID-19 vaccination.[3]
  1. [4]
    Section 3.6 of the Procedure allowed for employees to apply for an exemption to the mandatory vaccination requirements on the basis of a recognised medical contraindication, genuinely held religious belief or other exceptional circumstances.
  1. [5]
    On 30 September 2021, the Appellant applied for an exemption on the basis of 'other exceptional circumstances' and stated he needed to seek direction regarding vaccination due to his 'strongly held religious beliefs'.[4] The Appellant annexed a letter from Kennedy Spanner Lawyers[5] to his exemption application.
  1. [6]
    On 31 January 2022, the Procedure was replaced by the QAS HR Policy Employee COVID-19 Vaccination Requirements (the Policy). Clauses 2 – 3 of the Policy mandate that particular groups of QAS employees receive the COVID-19 vaccination.
  1. [7]
    On 1 February 2022, Mr Ray Clarke, Executive Director, Workforce wrote to the Appellant to enquire whether he wished to provide any updated information in support of his original exemption application before it is considered under the Policy.[6] On 8 February 2022, Mr Knight advised he wished his exemption application to be primarily considered on religious grounds, requested various information and expressed various concerns.[7]
  1. [8]
    On 4 March 2022, Mr Clarke advised the Appellant his exemption application had been refused.[8] On 18 March 2022, the Appellant requested an internal review of the refusal by way of a 'Notice of Demand.'[9]
  1. [9]
    On 19 April 2022, A/Assistant Commissioner John Hammond advised the Appellant the internal review had been completed and confirmed the decision to refuse the Appellant's exemption application was fair and reasonable (the Decision). That is the Decision subject of the Appellant's Appeal Notice filed 10 May 2022.

Jurisdiction

The decision subject of this appeal

  1. [10]
    I am satisfied the Decision constitutes a 'fair treatment decision' and the Appellant has used his employer's individual employee grievance process before lodging this appeal. On that basis, I accept the Decision is appealable under s 194(1)(eb) of the Public Service Act 2008 (Qld) (the PS Act).

Timeframe for appeal

  1. [11]
    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. That is the relevant inquiry with respect to timeframes. I note that despite the question posed in the Form 89 – Appeal Notice regarding when the decision was received.
  1. [12]
    The Decision was given on 19 April 2022 and the Appeal Notice was filed on 10 May 2022. Therefore, I am satisfied the Appeal Notice was filed by the Appellant within the required timeframe.

What decisions can the Commission make?

  1. [13]
    Section 562C of the IR Act prescribes that the Commission may determine to either:
  • confirm the decision appealed against;
  • 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; or
  • set the decision aside and substitute another decision.

Consideration

Appeal principles

  1. [14]
    Section 562B(2)-(3) of the IR Act provides that the appeal is decided by reviewing the decision appealed against "to decide whether the decision appealed against was fair and reasonable".
  1. [15]
    The appeal is not conducted by way of re–hearing, but rather involves a review of the decision arrived at and the associated decision–making process.
  1. [16]
    Findings made by the Respondent, which are reasonably open to it, should not be disturbed on appeal.  Even so, in reviewing the decision appealed against, the Commission may allow other evidence to be taken into account.
  1. [17]
    The relevant principles in considering whether a decision is 'unreasonable' were enunciated by Ryan J in Gilmour v Waddell & Ors (emphasis added, citations removed):[10]

The focus of a review of the reasonableness, or unreasonableness, of a decision is on whether the decision is so unreasonable that it lacks intelligent justification in all of the relevant circumstances.

The legal standard of unreasonableness is to be considered by reference to the subject matter, scope and purpose of the statute conferring the power.

A court considering an argument that a decision is unreasonable is not undertaking a merits review. If a decision may be reasonably justified, then it is not an unreasonable decision, even if a reviewing court might disagree with it.

The pluarity in Li said:

… when something is to be done within the discretion of an authority, it is to be done according to the rules of reason and justice. That is what is meant by ‘according to law’. It is to be legal and regular, not vague and fanciful …

… there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court’s view as to how a discretion should be applied for that of a decision-maker …

… it is necessary to look to the scope and purpose of the statute conferring the discretionary power and its real object … The legal standard of reasonableness must be the standard indicated by the true construction of the statute. It is necessary to construe the statute because the question to which the standard of reasonableness is addressed is whether the statutory power has been abused.

… Unreasonableness is a conclusion which may be applied to a decision which lacks an evidence and intelligible justification.

Submissions

  1. [18]
    In accordance with the Directions Order issued on 17 May 2022, the Respondent filed written submissions. The Appellant did not file any further submissions in support of his Appeal Notice despite being directed to do so. The Appellant also did not file any submissions in reply, despite being given the opportunity to do so.
  1. [19]
    Pursuant to s 451(1) of the IR Act, no hearing was conducted in deciding this appeal.  The matter was decided on the papers.
  1. [20]
    I have carefully considered all submissions and annexed materials but have determined not to approach the writing of this decision by summarising the entirety of those documents. My focus is on determining whether the Decision appealed against is fair and reasonable so I will instead refer only to the parties' key positions in my consideration of this appeal. 

Relevant provisions

  1. [21]
    Clause 5 of the Policy relevantly provides:

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 belief;
  • 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.

Exemption application

  1. [22]
    The Appellant filed two exemption application forms dated 30 September 2021.
  1. [23]
    The exemption application form sought details of the extenuating circumstances which preclude the Appellant from meeting the COVID-19 vaccination requirements. In the first application, the Appellant listed the following circumstances:
  • the Appellant requires more time to make an informed decision;
  • the Appellant is neither for nor against the COVID-19 vaccination;
  • the Procedure was issued when the Appellant was on annual leave, he lost his work iPad and was awaiting a replacement which left him unable to access emails;
  • a family trip to Blackall meant the Appellant had no phone reception or internet for over seven days;
  • the Appellant has many questions that remain unanswered; and
  • the Procedure has put the Appellant under significant personal distress.
  1. [24]
    With respect to religious beliefs, the Appellant submitted in his first exemption application that he required more time for consultation with important people in his faith system to help him make a decision.
  1. [25]
    The Appellant attached a letter from Kennedy Spanner Lawyers dated 29 September 2021 to the second exemption application form. I note this letter has been relied upon by several other Appellants in similar Public Service Appeals.
  1. [26]
    In the letter, Kennedy Spanner Lawyers outlines the following further "extenuating circumstances" they submit preclude the Appellant from complying with the vaccination mandate:
  • no risk assessments have been provided;
  • the matters raised in correspondence dated 27 September 2021 have not been addressed;
  • there has been a complete lack of consultation;
  • the Appellant has not had the opportunity to take personal and independent medical advice; and
  • the Appellant cannot give free and informed consent.
  1. [27]
    Subsequent to the submission of the exemption applications, the Appellant corresponded with the Respondent with respect to several other enquiries and requests for information that mainly pertained to the safety of the vaccinations and sources of evidence.[11]
  1. [28]
    On 2 January 2022, the Appellant emailed the Respondent advising that he is willing to consider the Novavax vaccination but would like to speak with his General Practitioner and several people who are important in his faith practice to gain advice first. The Appellant asked that this information be taken into account with respect to his exemption request.[12]
  1. [29]
    On 8 February 2022, the Appellant provided an updated exemption application. Within that updated application, the Appellant provided the following additional information:
  • the Appellant has a lifelong history of a strong faith in Christianity;
  • Christians must make decisions carefully with consideration, mindful that all decisions matter;
  • the decision to get vaccinated has many factors that deeply impact the Appellant's faith and belief system;
  • the Appellant is concerned with the use of foetal cell lines, the autonomy of his decision in regard to his body and the advice and direction of people of faith that he trusts;
  • the Appellant is against the use of coercive measures;
  • the Appellant has asked many questions that remain unanswered; and
  • the Appellant is willing, ready and able to work.

Original refusal

  1. [30]
    In correspondence dated 4 March 2022, Mr Clarke advised the Appellant that his request for an exemption had been refused. In that correspondence, Mr Clarke expressed:
  • the Appellant's religious belief has been balanced against the purposes of the vaccination requirements;
  • the Appellant has not provided any evidence from a religious leader or official in support of these beliefs, but the Respondent nonetheless accepts the stated beliefs are genuine;
  • COVID-19 presents a significant risk to the health and safety of healthcare workers, support staff, families and patients;
  • evidence demonstrates the safety and very high-level efficacy of the COVID-19 vaccination;
  • vaccination reduces the risk of hospitalisation and death from COVID-19 as well as the risk of transmission;
  • employees are not compelled to be vaccinated, but the mandate does impose employment consequences upon employees who are not vaccinated;
  • to the extent that human rights are impacted, those impacts are reasonably justified in light of the purpose of the Policy;
  • there is no reasonably practicable, effective and less restrictive way to achieve this purpose;
  • the concerns expressed are of the nature of vaccine hesitancy;
  • vaccination as a condition of employment is materially different from a situation involving coercive medical treatment or circumstances giving rise to an inability to provide free and informed consent; and
  • the concerns raised do no constitute exceptional circumstances.

Request for internal review

  1. [31]
    In correspondence dated 18 March 2022, the Appellant requested an internal review of Mr Clarke's decision to refuse the exemption on the basis that:
  • there was no stated requirement that he provide evidence in support of his religious exemption request;
  • the Respondent has not provided adequate support; 
  • the Appellant is entitled to the information he seeks;
  • the Appellant needs more time to seek medical and religion advice, read and understand the responses; and
  • the Appellant seeks consideration of a reasonable alternative position within QAS.

The Decision

  1. [32]
    In correspondence dated 19 April  2022, A/Assistant Commissioner, Mr John Hammond determined that the decision made by Mr Clarke was fair and reasonable in the circumstances. His reasons are summarised below:
  • Mr Clarke has appropriately considered the concerns raised and provided an appropriate explanation;
  • the concerns raised do not constitute 'another exceptional circumstance' for an exemption to be granted;
  • any questions or concerns regarding the nature and effect of the vaccination should be obtained from a medical practitioner in relation to the Appellant's individual circumstances;
  • the absence of evidence from a religious leader or official did not act as a determining factor in relation to Mr Clarke's decision;
  • prioritising the health and safety of colleagues and the community is warranted and reasonable at this time;
  • the purpose of the mandate is to ensure the continuing readiness of the health system to respond to the changing nature of the pandemic; and
  • the Appellant's proposal for alternative work arrangements is not reasonable or practical, nor is the proposal considered grounds for an exemption.

Appeal Notice

  1. [33]
    The Appellant articulated his grounds of appeal which generally fall under the following themes:
  • lack of adequate consultation;
  • concerns not addressed;
  • requested information not provided; and
  • risk assessments.
  1. [34]
    I will consider those matters below.

Consideration

Concerns and questions

  1. [35]
    In Radev v State of Queensland (Queensland Police Service) ('Radev'), I considered "exceptional circumstances" and concluded the following:

The term 'other exceptional circumstances' is broad because any number of circumstances may fall within its ambit. The key word is 'exceptional' which the Macquarie Online Dictionary defines as "forming an exception or unusual instance; unusual; extraordinary"… 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.[13]

  1. [36]
    The 'Employee COVID-19 vaccine exemption application form' relevantly provides (emphasis added):

In extremely limited circumstances, an employee may also use this form to detail other exceptional circumstances which preclude them from meeting the COVID-19 vaccine requirements. In this circumstance:

  • Vaccine hesitancy and conscientious objection, by themselves, are not considered exceptional circumstances.
  • Some other extenuating circumstance must exist.

Where this can be demonstrated, the employee's circumstances will be considered on an individual basis in accordance with Queensland Health's legislative obligations and industrial arrangements however exemptions will only be granted in exceptional circumstances.

  1. [37]
    For the reasons that follow, I find the Appellant's various concerns and refusal to get vaccinated until his questions are answered evince his personal preference not to receive the COVID-19 vaccination. I cannot identify the existence of any exceptional circumstances which would justify the approval of an exemption.
  1. [38]
    With respect to the Appellant's various concerns - seeking an exemption because one is concerned of an adverse reaction, lack of consultation, delegation of decision-making processes or a lack of medical evidence are not unusual or extraordinary circumstances.
  1. [39]
    Vaccine hesitancy is not itself uncommon and it may stem from a range of reasons as is the case for the Appellant. The Appellant has presented many arguments and raised many questions that are just that, arguments and questions - they are not "exceptional circumstances" warranting an exemption.
  1. [40]
    The Appellant contends he is "not sure of the process and constantly feel completely out of the loop, it seems there was a lack of transparency about policy changes and delegation of decisions."[14] The Appellant's ground of appeal in this regard lacks substance, particularly in light of the fact he elected not to file any submissions in support. Rather, upon my review of the Respondent's filed material, I note that the Respondent diligently responded to numerous emails sent by the Appellant and responded to the questions they could answer. In the event that the Respondent felt the Appellant should seek answers elsewhere (i.e., through a medical professional), they advised the Appellant accordingly. Further, the Appellant was advised in correspondence dated 1 February 2022 about the policy change and given the opportunity to provide further information in support of his exemption application. The Appellant has not identified an issue with "due process" and his minimal submissions in this regard leaves me unconvinced that the Decision is unfair and unreasonable on that basis.
  1. [41]
    The Appellant indicates that until he receives responses to his questions and is given more time to consult his medical practitioner and religious figures, he is unable to give informed consent.
  1. [42]
    Through the exemption application process, the Appellant was afforded the opportunity to present any medical contraindications as verified by a medical professional for the Respondent's consideration. However, the Appellant did not apply for an exemption on that basis. 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's fears of adverse reactions or related concerns with respect to the vaccination, does not justify an exemption.
  1. [43]
    The Appellant has had significant time to discuss any concerns with a medical professional who could have provided him 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 his opinion with respect to the medical evidence simply differs from that of the Respondent. Further, The Appellant originally filed his exemption application on 30 September 2021 – nearly a year has now passed. It is unreasonable for the Appellant to expect this process to be extended at his own election. Although the Appellant has indicated he is willing to consider the Novavax vaccination, that vaccination received provisional Therapeutic Goods Administration approval on 24 January 2022 – the Appellant has provided no evidence that he has booked an appointment to receive the vaccination.[15] The Respondent correctly submits that the Appellant does not have the right to determine when he will comply with the Policy.
  1. [44]
    In Higgins v State of Queensland (Queensland Health), Deputy President Merrell relevantly concluded:

[59]In Ms Higgins' letter dated 30 September 2021, submitted as part of her appeal and which was submitted as part of her application for exemption, she did not give any particular reasons which gave rise to any exceptional circumstance. Ms Higgins merely set out a number of questions to her Team Leader and to the Human Resources team in the Health Service in respect of which she requested answers. Ms Higgins then stated that upon considering those answers, she may then '… be happy to accept your offer to receive the treatment, but with certain conditions.'

[60]In my view, the Directive does not contain an offer to receive treatment but contains a direction to particular employees to be vaccinated.

[61]The fact that Ms Higgins may be hesitant to receive a COVID-19 vaccine and genuinely hold that hesitancy does not mean it is incumbent upon the State to accept that view.[16]

  1. [45]
    Although the Appellant may not have received answers to his queries or has not been satisfied with certain responses - that does not constitute an "exceptional circumstance". In light of that finding, I reject the Appellant's arguments that the Decision was unfair and unreasonable on that basis. 

Risk assessments and consultation

  1. [46]
    With respect to the Appellant's arguments regarding risk assessments and consultation, I refer to Industrial Commissioner Dwyer's decision in Gundrum v State of Queensland (Queensland Health) ('Gundrum'), where he concluded:[17]

[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.[18]

[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.[19]

…

[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…[20]

  1. [47]
    I follow Industrial Commissioner Dwyer's reasoning in Gundrum as extracted above.
  1. [48]
    Further, the Appellant contends consultation has been inadequate because it has been conducted via email. I reject that argument. The Appellant has not provided evidence that he requested an in person meeting or on what basis that would be necessary. The Appellant also argues that no dispute resolution process has been followed. That argument is baseless considering he requested and received an internal review of the original exemption refusal and has now utilised the Public Service Appeal mechanism.

Consent

  1. [49]
    With respect to the Appellant's arguments regarding consent, I am not satisfied that the Appellant has been deprived consent in respect of receiving the COVID-19 vaccination. The Appellant may freely choose not to receive the COVID-19 vaccination - it is not being forced upon him. The alternative to consenting to the vaccination is to elect not to receive it – the Appellant has freely made that decision thus far. There is no obligation that the Appellant continue to work for QAS.
  1. [50]
    The issue of consent was also considered in the matter of Kassam v Hazzard; Henry v Hazzard[21] where it was confirmed that consent is not vitiated by it being given in response to a condition of continued employment. I accept that view.

Religious beliefs

  1. [51]
    The 'Employee COVID-19 vaccine exemption application form' provides:

An employee will be considered to have a genuinely held religious belief for the purposes of applying for an exemption where they are able to provide a letter certifying:

  • their deeply held religious belief such that they are unable to receive any COVID-19 vaccine; and
  • their affiliation or connection to the religious group from a religious leader or official.

…

An employee is required to provide a letter from a religious leader or official certifying that:

  • the employee has an affiliation/connection to a religious group; and
  • the employee has a genuinely held religious belief such that they are unable to receive any COVID-19 vaccine.

…

It is important to be aware that exemption requests will be considered in accordance with Queensland Health's obligations and that approval will be only provided in exceptional circumstances.

  1. [52]
    The Appellant did not provide a letter from a religious leader or official outlining the required certification. Nonetheless, the Respondent accepted that the Appellant held a genuine religious belief.
  1. [53]
    With respect to the exemption application form, I note the Appellant was put on notice that although he may be considered to have a genuinely held religious belief, his request would be "considered in accordance with Queensland Health's obligations and that approval will be only provided in exceptional circumstances."
  1. [54]
    I find it was open to the decision-maker to determine that, upon balancing the Appellant's religious beliefs against the purposes of the vaccination requirements, approval of an exemption in the circumstances should not be granted. The key factors relevant to that determination include the requirement to ensure the readiness of the health system in responding to COVID-19, protection of the lives of employees, patients and the broader community as well as the high degree of risk to public health associated with work performed in healthcare settings. That was clearly conveyed in the original exemption refusal and reasonably accepted in the Decision. Those factors were largely based on the fact that COVID-19 vaccinations are endorsed by regulatory authorities globally, including the Therapeutic Goods Administration. With that in mind, it was reasonable for the Respondent to determine that high vaccination coverage will be a key determinant of health outcomes for health care delivery across the State.
  1. [55]
    The Appellant's religious beliefs were taken into consideration and it was reasonable for the Respondent to weigh those individual circumstances against the purpose of the Policy.

Other matters

  1. [56]
    The Appellant also made a series of other arguments in various correspondence. In response to those matters, I refer to Tilley v State of Queensland (Queensland Health) in which Industrial Commissioner Hartigan concluded the following:
  1. [39]
    The other matters, referred to above, raised by Mr Tilley form the basis of his personal preference not to receive a vaccine. I do not consider the matters relied on by Mr Tilley result in Directive 12/21 being unreasonable. In this regard, cl 6 of Directive 12/21 identifies the risk posed by the virus to staff, patients and the broader community and the Directive is aimed at minimising such a risk. I consider that to be reasonable.

…

[52]  Finally, Mr Tilley relies on the financial impact of suspension without remuneration as a ground to argue that the decision was not fair and reasonable. There is no doubt that Mr Tilley will suffer a financial detriment associated with the loss of income. I consider that to be a serious matter. However, it must be considered in the context of all the relevant circumstances of the matter.

[53] The circumstances of this matter include, Mr Tilley failing to comply with a directive which consequently formed a condition of his employment. Further, Mr Tilley's submission indicates that he does not intend to comply with the condition in the immediate future. Given the nature of the substantiated allegation, I consider that it was available, on the information before the decision maker, to conclude that it was not appropriate for Mr Tilley to receive remuneration during the remainder of the disciplinary process. The Department confirms in its written submissions that Mr Tilley is not precluded from seeking alternative employment with another employer. I am satisfied that in making the decision, the Department has complied with s 137 of the PS Act.[22]

  1. [57]
    I similarly conclude that the remaining matters raised by the Appellant evince his personal preference not to receive the COVID-19 vaccination. I do not consider those matters to render the Decision unfair or unreasonable. I accept the Respondent has reasonably balanced the Appellant's reasons for not getting the COVID-19 vaccination  with the other circumstances relevant to this matter.
  1. [58]
    One such matter was with respect to alternative arrangements. I note that in correspondence dated 1 February 2022, Mr Clarke advised the Appellant:

In the current phase of the QAS COVID-19 response, there is a temporary requirement for a wide variety of administrative, logistical and other support activities to be undertaken, which may be possible to be undertaken remotely. Please be advised that, unless you are already undertaking alternate work arrangements or are absent because of an approved leave request that you have made, you may be required to participate in these arrangements in the near future, where directed.

  1. [59]
    That excerpt suggests alternative arrangements had been appropriately considered.
  1. [60]
    The Appellant's role as an Advanced Care Paramedic necessarily involves direct contact with patients, other staff and the broader community. The Appellant's role also involves attending various locations including the homes of patients and the hospital. Even if parts of the Appellant's role could be conducted remotely, as I found in Radev, there will inevitably be times where the Appellant is required to attend various locations and intermingle with other staff members and patients in order to fulfill his duties.[23] I appreciate that the positions of Mr Radev and the Appellant are different but consider that the same principle applies in both circumstances.
  1. [61]
    In Radev, the appellant's workplace was the Brisbane Airport and I reached the conclusion that airports "are renowned for being particularly risky locations with respect to transmission of COVID-19".[24] The same can clearly be said for hospitals, ambulances and the various sites that paramedics visit – including crucially, the private homes of unwell patients. It is evident that the Appellant undertakes an important role in an important area that has been covered by the Policy for the safety of the Appellant, his colleagues and the broader community.
  1. [62]
    In Tilley v State of Queensland (Queensland Health), Industrial Commissioner Hartigan concluded the following:

I am satisfied the Department considered alternative working arrangements for Mr Tilley. I consider that the view formed that there were no alternative working arrangements available for Mr Tilley to perform was a decision open to be made, having regard to the Department's responsibility to manage the risks associated with COVID-19 in the workplace which is frequented by employees, patients and the broader community. [25]

  1. [63]
    In my view, an alternative arrangement is not an operationally feasible option in the Appellant's role and is therefore not a realistic circumstance, let alone an exceptional circumstance warranting exemption approval. On that basis, I find that the Respondent's consideration of alternative arrangements do not render the Decision unfair and unreasonable. 

Conclusion

  1. [64]
    The Decision set out evidence in support of the ultimate conclusion to refuse the Appellant's exemption request.
  1. [65]
    I am satisfied the Decision included intelligible justification following consideration of relevant matters.
  1. [66]
    I order accordingly.

Order

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

Footnotes

[1] Appeal Notice, 10 May 2022, 1.

[2] Respondent's Submissions, 30 May 2022, [5].

[3] QAS HR Procedure – COVID-19 Vaccine Requirements cl 3.3.2.

[4] Respondent's Submissions, 30 May 2022, [8].

[5] Dated 29 September 2021.

[6] Respondent's Submissions, 30 May 2022, [15].

[7] Ibid [16].

[8] Ibid [17].

[9] Ibid [18].

[10] [2019] QSC 170, [207]-[210], citing Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, [63]-[76].

[11] Respondent's Submissions, 30 May 2022, Attachments 2 – 6.

[12] Email from the Appellant to the Respondent, 2 January 2022.

[13] [2021] QIRC 414, 9 [37].

[14] Appeal Notice, 10 May 2022, 4.

[15] Respondent's Submissions, 30 May 2022, 4 [25].

[16] [2022] QIRC 030, 14.

[17] [2022] QIRC 226.

[18] 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.

[19] 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]. 

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

[21] [2021] NSWSC 1320.

[22] [2022] QIRC 002.

[23] [2021] QIRC 414, [54].

[24] Ibid.

[25] [2022] QIRC 002.

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Editorial Notes

  • Published Case Name:

    Knight v State of Queensland (Queensland Ambulance Service)

  • Shortened Case Name:

    Knight v State of Queensland (Queensland Ambulance Service)

  • MNC:

    [2022] QIRC 283

  • Court:

    QIRC

  • Judge(s):

    McLennan IC

  • Date:

    28 Jul 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
Gilmour v Waddell [2019] QSC 170
2 citations
Jump To
Cite 1 - [2019] QSC 170
Cite 2 - [2019] QSC 170
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
Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320
2 citations
Jump To
Cite 1 - [2021] NSWSC 1320
Cite 2 - [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
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
2 citations
Jump To
Cite 1 - (2013) 249 CLR 332
Cite 2 - (2013) 249 CLR 332
Radev v State of Queensland (Queensland Police Service) [2021] QIRC 414
3 citations
Jump To
Cite 1 - [2021] QIRC 414
Cite 2 - [2021] QIRC 414
Cite 3 - [2021] QIRC 414
Tilley v State of Queensland (Queensland Health) [2022] QIRC 2
3 citations
Jump To
Cite 1 - [2022] QIRC 2
Cite 2 - [2022] QIRC 2
Cite 3 - [2022] QIRC 2

Cases Citing

Case NameFull CitationFrequency
Bakhash v State of Queensland (Department of Education) [2022] QIRC 3621 citation
Daley v State of Queensland (Department of Education) [2023] QIRC 2771 citation
De Martin v State of Queensland (Queensland Health) [2023] QIRC 2651 citation
Elliott v State of Queensland (Queensland Health) [2022] QIRC 3322 citations
Fitzgerald v State of Queensland (Queensland Health) [2023] QIRC 872 citations
Janulewicz v State of Queensland (Queensland Health) [2023] QIRC 261 citation
Major v State of Queensland (Queensland Ambulance Service) [2023] QIRC 1131 citation
McKinney v State of Queensland (Queensland Health) [2023] QIRC 1321 citation
Nicolson v State of Queensland (Department of Education) [2025] QIRC 722 citations
Smith v State of Queensland (Department of Environment and Science) [2022] QIRC 4001 citation
Steenson v State of Queensland (Department of Education) [2024] QIRC 2422 citations
1

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