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  4. Higgins v State of Queensland (Queensland Health) - [2022] QIRC 30

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Higgins v State of Queensland (Queensland Health)[2022] QIRC 30

Higgins v State of Queensland (Queensland Health)[2022] QIRC 30

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

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

PARTIES:

Higgins, Jennifer Carol

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO.:

PSA/2022/17

PROCEEDING:

Public Service Appeal - Fair treatment decision

DELIVERED ON:

27 January 2022

HEARING DATE:

27 January 2022

MEMBER:

Merrell DP

HEARD AT:

Brisbane

DATES OF WRITTEN

SUBMISSIONS:

Appellant's written submissions filed on 19 January 2022 and Respondent's written submissions filed on 25 January 2022

ORDERS:

  1. Pursuant to s 562A(3)(b)(ii) of the Industrial Relations Act 2016, the Commission will not hear the Appellant's appeal against the decision because it is misconceived.
  1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the Appellant's appeal against the decision reviewing the decision not to grant the Appellant an exemption under the Health Employment Directive No. 12/21 - Employee COVID‑19 vaccination requirements is confirmed.

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL – appellant employed by the State of Queensland as a Medical Typist, Health Information Unit, Mackay Base Hospital, Mackay Hospital and Health Service – cl 8 of the Health Employment Directive No. 12/21 – Employee COVID‑19 vaccination requirements required existing employees who are employed to work in a hospital or other facility where clinical care or support is provided, must have received at least a first dose of a COVID-19 vaccine by 30 September 2021 and must have received the second dose of a COVID‑19 vaccine by 31 October 2021 – appellant failed to comply with Health Employment Directive No. 12/21 – Employee COVID‑19 vaccination requirements – decision by respondent requiring appellant to show cause why disciplinary finding should not be made against her in relation to the allegation that in contravention of a direction given to her by a responsible person, the appellant had not received a second dose of a COVID‑19 vaccine by 31 October 2021 – decision by respondent suspending appellant with remuneration – appeal by appellant against decisions as a fair treatment decision – whether decisions appealed against competent – appeals against decisions to show cause why a disciplinary finding should not be made and to suspend with remuneration not competent – appeal against show cause and suspension decisions not heard because they are misconceived – appeal against review of decision not to grant exemption fair and reasonable – decision reviewing exemption decision confirmed

LEGISLATION:

Directive 01/20 - Employment Arrangements in the Event of a Health Pandemic

Health Employment Directive No. 12/21 - Employee COVID-19 vaccination requirements, cl 1, cl 2, cl 4, cl 6, cl 7, cl 8 and cl 10

Hospital and Health Boards Act 2011, s 51A, s 67 and s 78

Human Rights Act 2019, s 17

Industrial Relations Act 2016, s 28, s 562A, s 562B and s 562C

Public Service Act 2008, s 137, s 187, s 194 and s 195

CASES:

Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203; (2020) 305 IR 311

Tilley v State of Queensland [2022] QIRC 002

APPEARANCES:

The Appellant in person.

Mr G. O'Gorman, Mr. T Seymour, Ms K. Low and Mr D. Turner of the State of Queensland (Queensland Health).

Reasons for Decision (ex tempore)

Introduction

  1. [1]
    Ms Jennifer Higgins is employed by the State of Queensland as a Medical Typist in the Health Information Unit, Mackay Base Hospital ('the Hospital') which is part of the Mackay Hospital and Health Service ('the Health Service'). There is no dispute that Ms Higgins is a health service employee within the meaning of s 67(1) of the Hospital and Health Boards Act 2011.
  1. [2]
    Section 51A(1) of the Hospital and Health Boards Act 2011 provides that the chief executive of Queensland Health ('the Department') may issue health employment directives about the conditions of employment of health service employees.
  1. [3]
    Dr John Wakefield, the chief executive of the Department, pursuant to s 51A(1) of the Hospital and Health Boards Act 2011, approved the Health Employment Directive No. 12/21 - Employee COVID-19 vaccination requirements ('the Directive'). The effective date of the Directive was 11 September 2021.
  1. [4]
    The combined effect of cls 7 and 8 of the Directive was that employees to whom the Directive applied had to, by specified dates, 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.
  1. [5]
    Clause 10 of the Directive provided that an employee who was required to be vaccinated could apply for and be granted an exemption from the requirement to be vaccinated, for the duration of the exemption granted, in circumstances where:
  • an existing employee had a recognised medical contraindication or had a genuinely held religious belief; or
  • where other exceptional circumstances existed.
  1. [6]
    Ms Higgins applied for such an exemption on a 'conscientious objection basis', however, the exemption was not granted.
  1. [7]
    Since that time, Ms Higgins has not complied with the mandatory vaccination requirement in the Directive and has not complied with further express written directions, set out in letters dated 17 November 2021 and 22 December 2021, to be vaccinated and to provide written confirmation of her vaccination status by particular dates.
  1. [8]
    In respect of those written directions, Ms Higgins was informed that if she did not comply with the directions, she may be liable for disciplinary action pursuant to s 187(1)(d) of the PS Act.
  1. [9]
    By letter dated 23 December 2021 from Mr Terence Seymour, Executive Director People of the Health Service, Ms Higgins was asked to show cause why disciplinary findings should not be made against her in relation to the allegation that, in contravention of a direction given to her by a responsible person, she had not received her second dose of a COVID-19 vaccine by 31 October 2021 ('the decision').
  1. [10]
    By the decision, Mr Seymour also advised Ms Higgins of his decision, pursuant to s 137(1)(b) of the PS Act, to suspend her with remuneration and that he further required her to show cause why she should not be suspended without remuneration.
  1. [11]
    By appeal notice filed on 11 January 2022, Ms Higgins appealed against the decision.
  1. [12]
    Despite Ms Higgins indicating that she was appealing the decision made under a Directive which allowed her to appeal, which was not the case given that the Directive did not allow her to appeal, the reality is that Ms Higgins' appeal against the decision is against a decision she believes is unfair and unreasonable, namely, a fair treatment decision as referred to in s 194(eb) of the PS Act. Accordingly, today I gave Ms Higgins leave to amend her appeal notice to reflect the correct nature of the basis of her appeal. The Department did not oppose such leave being granted.
  1. [13]
    In her appeal notice, Ms Higgins contends that:
  • in the last 12 months she has worked for half of her work time from her home and from 1 November 2021 to 23 December 2021 she was permitted to work full‑time from her home by Mr Seymour;
  • she has never received any disciplinary action throughout her employment;
  • she is not a clinical healthcare worker, does not provide any care to patients and does not see patients;
  • she wishes to continue working from home on a full-time basis and being unvaccinated is not an indication that she can no longer carry out her duties effectively;
  • her role does not necessitate that she work from a healthcare facility;
  • she has repeatedly requested a risk assessment to her role in the workplace which has never been provided to her by the State;
  • she has many documents and peer published evidence that vaccines are not '… safe and effective'; and
  • she does not believe she has been treated fairly and does not believe she has engaged in any conduct that is commensurate with her being disciplined or her employment being terminated.
  1. [14]
    The State contends that Ms Higgins' appeal is misconceived because the decision to ask Ms Higgins to show cause why a disciplinary finding should not be made against her and the decision to suspend her with remuneration are decisions that cannot be appealed under ch 7, pt 1 of the PS Act.
  1. [15]
    For the reasons that follow, Ms Higgins' appeal against the decisions to ask her to show cause why a disciplinary finding should not be made against her and her appeal against the decision to suspend her with remuneration are misconceived, and pursuant to s 562A(3)(b)(ii) of the Industrial Relations Act 2016 ('the IR Act'), I cannot hear her appeal against those decisions.
  1. [16]
    It also appears that, being fair to Ms Higgins who represents herself, she appeals against the review of the decision not to grant her an exemption under the Directive. I will consider her appeal against that review decision.
  1. [17]
    However, for the reasons that follow, the review of the exemption decision was fair and reasonable and I confirm that review decision.

The Directive

  1. [18]
    Clause 1 of the Directive provides that compliance with it is mandatory.
  1. [19]
    Clause 2 of the Directive provides that its purpose is to outline COVID-19 vaccination requirements for existing employees and prospective employees employed to work in the identified high risks groups designated in the Directive.
  1. [20]
    Clause 4 of the Directive provides that it applies to all health service employees employed, and prospective employees to be employed, under the Hospital and Health Boards Act 2011 in Hospitals and Health Services and in the Department.
  1. [21]
    Clause 6 of the Directive (Risk management) provides:

The COVID-19 virus has been shown to disproportionately affect healthcare workers and health support staff and poses a significant risk to Queensland Health patients, and the broader community.

In recognition of the risks posed by the virus, as well as workplace health and safety obligations incumbent upon both the organisation and employees, this HED requires health service employees who are identified as being in high risk groups to be vaccinated against COVID-19.

Prospective and existing health service employees subject to these requirements have been identified based on the following risk profile:

  • They are working in an area with suspected or confirmed COVID-19 patients or an area that a COVID-19 patient may enter.
  • They are coming into direct or indirect contact with people who work in an area with COVID‑19 patients or an area that a suspected or actual COVID-19 patient may enter.
  • They are unable to observe public health requirements (e.g. physical distancing, working in areas of high population density, rapid donning/doffing of personal protective equipment (PPE) in emergent situations).
  • They have the potential to expose patients, clients, other staff or the broader community to the virus (e.g. occupying shared spaces such as lifts, cafeterias, car parks, with people working with suspected or actual COVID-19 patients).
  1. [22]
    Clause 7 of the Directive (Requirement for vaccination) provides:

7.1 In acknowledgment of the risks posed by the COVID-19 virus to the health and safety of Queensland Health employees, patients and the broader community, clauses 8 and 9 of this HED require all existing and prospective employees who are or are to be employed to work in the cohorts as categorised in accordance with Table 1 (below), to be vaccinated as a condition of employment, subject to certain limited exemptions described in clause 10 of this HED.

  1. [23]
    Table 1 relevantly defines Group 2 to be:

All health service employees who are employed to work in a hospital or other facility where clinical care or support is provided.

This may include:

  • both clinical and non-clinical employees.
  1. [24]
    Table 1 relevantly defines Group 3 to be:

All other health service employees who are employed in roles that require attendance at a hospital or other facility where clinical care or support is provided.

This may include:

  • the requirement to attend hospitals, quarantine facilities, vaccination clinics/hubs, fever clinics, dental clinics, outpatient services, prison health services, disability care services, including residential or sub-acute care for people with disability, or any other location where health service employees provide care or support to patients/clients.
  1. [25]
    Clause 8 of the Directive (Existing employees) relevantly provides:

8.1  Existing employees currently undertaking work or moving into a role undertaking work listed in a cohort of Table 1, must:

a. have received at least the first dose of a COVID-19 vaccine by 30 September 2021; and

b.  have received the second dose of a COVID-19 vaccine by 31 October 2021.

  • An existing employee must provide to their line manager or upload into the designated system:

a.  evidence of vaccination confirming that the employee has received at least the first dose of a COVID-19 vaccine by no later than 7 days after receiving the vaccine.

b.  evidence of vaccination confirming that the employee has received the second dose of a COVID-19 vaccine by no later than 7 days after receiving the vaccine.

  1. [26]
    Clause 10 of the Directive (Exemptions) provides:

10.1  Where an existing employee is unable to be vaccinated they are required to complete an exemption application form.

10.2  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.

10.3  If an existing employee is granted an exemption, they do not have to comply with clause 8 or 9 of this HED for the duration of that exemption.

The relevant facts

  1. [27]
    The following facts are not in dispute.
  1. [28]
    On 30 September 2021, Ms Higgins made an application for an exemption from the Directive ('Ms Higgins' exemption application'). The basis upon which Ms Higgins made her exemption application was that there were exceptional circumstances such that she should be exempt from the operation of the Directive.
  1. [29]
    In her exemption application, Ms Higgins stated:

The extenuating circumstances are contained in the attached letters, both dated 30 September 2021 and attached to my email with this application. The letters express my concerns and questions and supports my application for exemption. I await a detailed response in order to assist me in making an informed decision regarding benfits [sic] and/or risks that relate to Covid vaccine.

My concerns also are the process for the implementation of these directives which have breached both my award and my EBA in terms of consultation and dispute resolution and that the threat of termination also conflicts with Human Rights, Work Health & Safety and my contract of employment with MHHS, especially when there are alternatives available to protect both me, other staff, the public and patients.

  1. [30]
    In Ms Higgins' letter dated 30 September 2021, she expressly referred to the Directive and expressly referred to the Queensland Health Human Resources Policy about COVID‑19 vaccination requirements ('the Policy')[1] and stated that before she made 'a decision in this matter' she wished to be fully informed and appraised of all relevant facts.
  1. [31]
    To that end, Ms Higgins' letter was a series of questions to her Line Manager and to the Human Resources team in the Health Service to which she sought answers.
  1. [32]
    By way of summary, the questions Ms Higgins put were:
  • whether the request was being made under a specific law or a public health order and to specify the law or public health order;
  • the circumstances under which her Line Manager believed the direction (that she be vaccinated) was a reasonable direction having regard to:
  1. –the nature of her workplace;
  2. –the extent of community transmission of COVID-19 in the location of the workplace;
  3. –the effectiveness of the relevant vaccine in reducing the risk of transmission;
  4. –her individual work circumstances; and
  5. –whether she (Ms Higgins' Line Manager) was accommodating employees who had a legitimate reason for not being vaccinated and the details of those accommodations;
  • the 'tier' under which Ms Higgins' Line Manager was classifying her work;
  • the approved legal status of the COVID-19 vaccine and whether it was under experimental or provisional approval in Australia;
  • details and assurances that the vaccine has been fully, independently and rigorously tested against control groups and the subsequent outcomes of those tests including its long-term safety, its effect on pregnant recipients, its use for children and its future generational safety along, with the data used to come to those conclusions;
  • the full list of contents of the vaccine that she was asked to receive and if any are toxic to the body;
  • all adverse reactions associated with the vaccine in Australia since its introduction, including deaths and disablement supported by the latest relevant data;
  • the likely risks of fatality or serious side effects, should she be unfortunate enough to contract COVID-19 after being vaccinated and the likelihood of recovery and long‑term side effects supported by the appropriate data; and
  • confirmation that she will not be under any duress or coercion from '… you or a representative of your company, as my employer, to force me to have this vaccination including threatened loss of employment.'
  1. [33]
    Ms Higgins then stated:

Once I have received the above information in full and I am satisfied that there is no threat to my health and safety, I will be happy to accept your offer to receive the treatment, but with certain conditions, namely:

  1. I receive written confirmation from an authorised officer that no harm will come to me after receiving this vaccination.
  1. Once the requested information is provided to me and confirmed by a medical doctor, you, Queensland Health will undertake to accept full legal and financial responsibility for any injuries occurring to myself as a result of receiving this vaccination.
  1. In the event that I choose to decline the offer of vaccination, please confirm that:
  1. (a)
    it will not compromise my workplace position and remuneration; and
  2. (b)
    that I will not be subjected to any unreasonable disciplinary processes; and
  3. (c)
    I will not suffer prejudice and discrimination as a result.

In the interim and until I receive a detailed response to this letter, (excepting any leave periods), I will report for work and wear an approved mask in the workplace at all times in accordance with any reasonable workplace requirements.

  1. [34]
    By letter dated 17 November 2021, Mr Seymour advised Ms Higgins that her application for exemption had not been approved ('the exemption decision'). In doing so, Mr Seymour stated:

In your request dated 30/09/2021, you identified that there were "Other exceptional circumstances" and are subsequently seeking an exemption to the conditions of the Directive.

Your application for an exemption and the supporting documents you submitted were considered by the MHHS Exemption Panel Committee ('the Committee') and relevant specialist expertise was sought in relation to your individual circumstances.

In relation to your correspondence regarding risk assessment please find following [sic] response.

The COVID-19 virus presents significant risk to the health and safety of healthcare workers and support staff, their families and the patients under our care. Evidence from around the world demonstrates not only the safety of the COVID-19 vaccine, but the very high-level efficacy. Peer reviewed studies published in reputable medical journals have shown that vaccination reduces the risk of hospitalisation and death by over 90%, when compared to the unvaccinated. It also means staff are much less likely to transmit the virus to others, including importantly, to our sometimes immunocompromised patients.

In recognition of the risks posed by the virus, as well as workplace health and safety obligations incumbent upon both the organisation and employees, Queensland Health has adopted the sensible and reasonable mitigation strategy of requiring its employees who are identified as being in high risk groups to be vaccinated against COVID-19. This strategy is implemented by the Health Employment Directive No. 12/21 Employee COVID-19 vaccination requirements (HED) and the Human Resources Policy B70 Employee COVID-19 vaccination requirements (Policy).

Prospective and existing health service employees subject to these requirements have been identified based on the following risk profile:

  • They are working in an area with suspected or confirmed COVID-19 patients or an area that a COVID-19 patient may enter.
  • They are coming into direct or indirect contact with people who work in an area with COVID‑19 patients or an area that a suspected or actual COVID-19 patient may enter.
  • They are unable to observe public health requirements (e.g. physical distancing, working in areas of high population density, rapid donning/doffing of personal protective equipment (PPE) in emergent situations).
  • They have the potential to expose patients, clients, other staff or the broader community to the virus (e.g. occupying shared spaces such as lifts, cafeterias, car parks, with people working with suspected or actual COVID-19 patients).

In the immediate term, the strategy adopted requires employees to:

  • have received at least the first dose of a COVID-19 vaccine by 30 September 2021 and have received the second dose of the vaccination by 31 October 2021; and
  • provide evidence of their vaccination to their line manager or upload it into the designated system.

Steps taken to review your request

In assessing your application for an exemption, the Committee considered all of the information available including your request, any supporting evidence provided by you, and the requirements of your role.

The Committee approached consideration of your application with intention of the Directive and Policy 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 and Policy contemplates the high degree of 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. The Committee also considered the impact on your human rights.

Following their consideration of your request, the Committee have recommended that your request for an exemption is denied. I have considered the advice of the Committee and have accepted their recommendation.

In assessing your individual circumstances, human rights and discriminable elements/factors, it was determined that this be balanced with the overarching policy intent. With this in mind, vaccination is the most reliable protection to sufficiently ensure the safety of yourself, other staff members and patients.

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 your 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.

  1. [35]
    Mr Seymour then issued Ms Higgins with the direction to comply with the Directive. Specifically, Mr Seymour stated that Ms Higgins must receive the required dose and provide written confirmation that she has complied with the requirement to be vaccinated against COVID-19 within seven calendar days of her receipt of his letter and that should she fail to follow that lawful direction, she may be liable for disciplinary action pursuant to s 187(1)(d) of the PS Act.
  1. [36]
    Ms Higgins, as was her right, requested a review of the exemption decision.
  1. [37]
    By letter dated 22 December 2021 from Mr Terry Johnson, chief executive of the Health Service, Ms Higgins was informed that a review of the exemption decision had been undertaken and that, for the reasons given in his correspondence, Mr Johnson was not persuaded to overturn the exemption decision. By way of summary, the reasons Mr Johnson did not overturn the exemption decision were:
  • the Department and the Health Service had satisfied their obligations in regard to risk assessments required under the Work Health and Safety Act 2011;
  • in recognition of the risks posed by the COVID-19 virus, as well as workplace health and safety obligations incumbent upon both the organisation and employees, the Department had adopted the reasonable mitigation strategy of requiring employees to be vaccinated against COVID-19, being a strategy implemented through the Directive and the Policy;
  • the COVID-19 vaccination requirements were mandated in the Directive with legislative provision under s 51A of the Hospital and Health Boards Act 2011;
  • the Department was of the view that COVID-19 presented significant risk to the health and safety of healthcare workers, support staff, their families and the patients under the Department's care and that evidence from around the world demonstrated not only the safety of the COVID-19 vaccine, but the very high-level efficacy;
  • vaccines approved for use within Australia are not experimental, in that they have undergone all the usual assessments, including peer review and publication of phase one, two and three clinical trials and are reviewed by multiple licensing bodies, including the Therapeutic Goods Administration and that, further, the vaccines are now in routine clinical use to prevent disease and that they are not used to treat disease; and
  • he considered that Ms Higgins may be required to attend and undertake the functions of her role in a healthcare facility and as such, she was required to ensure that she met the vaccination requirements set out in the Directive.
  1. [38]
    Mr Johnson gave a direction to Ms Higgins that she had to receive the required dose of a vaccine in accordance with the requirements set out in the Directive and the Policy and provide confirmation that she had complied with that requirement to be vaccinated within seven days of her receipt of his letter. Mr Johnson also stated that her failure to follow that direction may mean she is liable for disciplinary action pursuant to s 187(1)(d) of the PS Act.
  1. [39]
    By letter dated 23 December 2021, Mr Seymour informed Ms Higgins of the decision against which she has appealed.
  1. [40]
    Mr Seymour set out the specific allegation, namely, that in contravention of a direction given to her by a reasonable person, she had not received her second dose of a COVID‑19 vaccine by 31 October 2021. Particulars of that allegation were provided to Ms Higgins, being particulars which, in my view, were sufficient to allow Ms Higgins to respond to the allegation.
  1. [41]
    Mr Seymour stated that he considered that Ms Higgins may be liable to disciplinary findings on the basis that, pursuant to s 187(1)(d) of the PS Act, she may have contravened, without reasonable excuse, a direction given to her as a public service employee by a responsible person, specifically, the direction given to her by sub‑cl 8.1 of the Directive.

Ms Higgins' submissions

  1. [42]
    In her written submissions, Ms Higgins submits that:
  • she is not a healthcare worker, she is in a non-clinical role which does not require patient contact and she poses no risk to any persons when she works remotely 100% of the time, which she can do by remote electronic contact which is consistent with the State's encouragement and promotion of flexible working arrangements;
  • the COVID-19 vaccinations are all undergoing evaluation with the Therapeutic Goods Administration and are provisionally approved;
  • Directive 01/20 - Employment Arrangements in the Event of a Health Pandemic, issued by the Office of Industrial Relations, provided, amongst other things, that workplace arrangements would be varied to accommodate business continuity planning for the health pandemic;
  • mandatory vaccination and boosters are a breach of s 17(c) of the Human Rights Act 2019, which provides that a person must not be subjected to medical or scientific experimentation or treatment without the person's full, free or informed consent;
  • she has an unblemished employment history with service over 10 years and the mandatory vaccination directive '… is manipulative via punishment to those who have made an informed decision and chosen not to vaccinate'; and
  • this issue has resulted in causing her undue stress and undue pressure, resulted in her suspension as from 23 December 2021, has resulted in a threat of her being suspended without pay, has resulted in the threat of disciplinary action, including the threat of dismissal, which threatens her livelihood being a single parent with a dependent child and it is '… bullying, coercion and manipulation!'.
  1. [43]
    In oral submissions, Ms Higgins additionally submitted that:
  • she may consider receiving new vaccines as they are approved but not the four vaccines currently approved by the Therapeutic Goods Administration;
  • she could work from home as she has done in the past, which is a reasonable basis for her to be exempted from the vaccination requirement;
  • she has not been redeployed elsewhere in the 10 years she has worked at the Health Service;
  • the decision appealed against will affect her livelihood;
  • she is fearful of the vaccine and would rather get the virus; and
  • it was not fair that she should have action taken against her that may result in her being suspended without pay due to her own conscientious choice when circumstances about the effect of the virus may change in the months to come.
  1. [44]
    Ms Higgins confirmed with me today that, presently, she has not complied with any of the directions given to her to be vaccinated.

The State's submissions

  1. [45]
    In written submissions, the State submitted that:
  • Ms Higgins' appeal against the decision was misconceived because:
  1. –a person cannot appeal against the decision to suspend him or her without remuneration; and
  2. –a person cannot appeal against a decision made under ch 6, pt 2 of the PS Act as a fair treatment decision other than a finding under s 187 that a disciplinary ground exists for the person; and
  • the decision not to grant Ms Higgins an exemption under the Directive was fair and reasonable because the only basis upon which she claimed there were exceptional circumstances, such that she should be granted an exemption, was that she was hesitant to receive the vaccine and she provided no evidence showing a medical contraindication.
  1. [46]
    In further submissions today, Mr O'Gorman, on behalf of the State, submitted that:
  • the impact of the virus on the Health Service may mean that Ms Higgins may not be allowed to work from home and could be deployed to work anywhere; and
  • to the extent any risk assessments had to be done, they were done when the Directive was introduced.

Ms Higgins' appeal against the decision is misconceived

The decision to ask Ms Higgins why a disciplinary finding should not be made against her

  1. [47]
    Pursuant to s 195(3A)(b) of the PS Act, a person cannot appeal against a fair treatment decision made under ch 6, pt 2, other than a finding under s 187 that a disciplinary ground exists for the person.
  1. [48]
    To the extent Ms Higgins appeals against the decision to ask her to show cause why a disciplinary finding should not be made against her, Ms Higgins' appeal is misconceived and is incompetent. The effect of s 195(3A)(b) of the PS Act is that an appeal cannot be made against such a decision.
  1. [49]
    I will not hear that aspect of Ms Higgins' appeal.

The decision to suspend with remuneration

  1. [50]
    Pursuant to s 194(1)(bb) of the PS Act, an appeal may only be made against a decision to suspend a public service employee without entitlement to normal remuneration under s 137 of the PS Act.
  1. [51]
    To the extent Ms Higgins appeals against the decision to suspend her with remuneration, that appeal is misconceived and is incompetent. Such an appeal is not permitted by the PS Act.
  1. [52]
    I will not hear that aspect of Ms Higgins' appeal.

The review of the exemption decision was fair and reasonable

  1. [53]
    The purpose of an appeal pursuant to ch 7, pt 1 of the PS Act is to decide whether the decision appealed against was fair and reasonable.[2] The issue for determination in such an appeal is whether the decision appealed against was fair and reasonable.[3]
  1. [54]
    The decision internally reviewing the exemption decision was conveyed to Ms Higgins by Mr Johnson's letter dated 22 December 2021.
  1. [55]
    As I have stated earlier, to be fair to Ms Higgins who is representing herself, I take it that her appeal included an appeal against the review of the exemption decision. Given the date the appeal notice was filed (11 January 2022) and assuming the appeal was also against the review decision, that appeal was made within time. The State did make submissions about why it contended the exemption decision was fair and reasonable.
  1. [56]
    In my view, the review of the exemption decision was fair and reasonable. There are a number of reasons for this decision.
  1. [57]
    First, Ms Higgins did not apply for an exemption on the basis that she had a recognised medical contraindication or that she had a genuinely held religious belief. The case for exemption made by Ms Higgins was that another exceptional circumstance existed, namely, her conscientious objection. Contrary to her submissions today, the exemption application proforma from the Department made it clear that vaccine hesitancy and conscientious objection were not, on their own, exceptional circumstances.
  1. [58]
    Secondly, having regard to the material provided as part of Ms Higgins' exemption application, at least to the extent of the material Ms Higgins has submitted as part of her appeal, there was no sound basis for Ms Higgins to claim that there were exceptional circumstances such that, on any reasonable basis, she should be exempted from the mandatory vaccination requirement.
  1. [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.'
  1. [60]
    In my view, the Directive does not contain an offer to receive treatment but contains a direction to particular employees to be vaccinated.
  1. [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.[4]
  1. [62]
    Thirdly, in her appeal submissions, Ms Higgins refers to the fact that, by agreement, she was able to perform her duties from home for 50% of her working hours between October 2020 and October 2021 and that she was granted a short-term arrangement to work from home from 1 November 2021 while her request for an exemption from the operation of the Directive was being considered. Ms Higgins seems to submit that those facts support her claim that because of her position as a typist, exceptional circumstances exist such that she should be exempt from the mandatory requirement to be vaccinated.
  1. [63]
    I do not accept those submissions having regard to the review decision.
  1. [64]
    The arrangement for Ms Higgins to work 100% of her hours of duty from home from 1 November 2021 was temporary whilst her application for an exemption was being considered. As the Health Service submits, that temporary arrangement was not a permanent long-term solution in the absence of vaccination.
  1. [65]
    Further, even if another agreement was made between the Health Service and Ms Higgins to work half or even some of her hours of duty from home, she would still be required to attend the Hospital to perform duties for her remaining hours of work, with the result that the Directive, and the requirement for her to be vaccinated, would have direct application to her.
  1. [66]
    Whilst Ms Higgins may make a flexible working arrangement request about the place where she works, the Health Service, pursuant to s 28(2) of the IR Act, may refuse that on reasonable grounds. To that extent, it is a matter for the Health Service to decide, having regard to its requirements to provide public health services, where Ms Higgins performs her duties. The Department also has the power to transfer her to other work locations.[5] It is not a stretch to envisage situations where, due to the pressures placed upon public health units by the COVID-19 pandemic, that Health Service employees, including employees in positions of the kind occupied by Ms Higgins, may be reasonably required to be temporarily redeployed to other work locations.
  1. [67]
    For these reasons, my opinion is that the review of the exemption decision, as undertaken, or as conveyed to Ms Higgins by Mr Johnson in his letter dated 22 December 2021, was fair and reasonable.

Conclusion

  1. [68]
    The initial questions in this case were whether Ms Higgins' appeal against the decision to ask her to show cause why a disciplinary finding should not be made against her and the decision to suspend her with remuneration were competent.
  1. [69]
    For the reasons I have given, Ms Higgins' appeal, to the extent they were made against those decisions, is not competent because it is misconceived. I decline to hear Ms Higgins' appeal against those decisions because the appeal of those decisions is misconceived.
  1. [70]
    In addition, for the reasons I have given, the review of the exemption decision was fair and reasonable. The decision reviewing the exemption decision is confirmed.

Orders

  1. [71]
    I make the following orders:
  1. Pursuant to s 562A(3)(b)(ii) of the Industrial Relations Act 2016, the Commission will not hear the Appellant's appeal against the decision because it is misconceived.
  1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the Appellant's appeal against the decision reviewing the decision not to grant the Appellant an exemption under the Health Employment Directive No. 12/21 - Employee COVID-19 vaccination requirements is confirmed.

Footnotes

[1] Human Resources Policy B70 Employee COVID-19 vaccination requirements (QH-POL-486).

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

[3] Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203; (2020) 305 IR 311, [4]-[7].

[4] Tilley v State of Queensland (Queensland Health) [2022] QIRC 002, [42] (Industrial Commissioner Hartigan).

[5] Hospital and Health Boards Act 2011 s 78.

Close

Editorial Notes

  • Published Case Name:

    Higgins v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Higgins v State of Queensland (Queensland Health)

  • MNC:

    [2022] QIRC 30

  • Court:

    QIRC

  • Judge(s):

    Merrell DP

  • Date:

    27 Jan 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
Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203
2 citations
Jump To
Cite 1 - [2020] QIRC 203
Cite 2 - [2020] QIRC 203
Morison v State of Queensland (Department of Child Safety, Youth and Women) (2020) 305 IR 311
2 citations
Jump To
Cite 1 - (2020) 305 IR 311
Cite 2 - (2020) 305 IR 311
Tilley v State of Queensland (Queensland Health) [2022] QIRC 2
2 citations
Jump To
Cite 1 - [2022] QIRC 2
Cite 2 - [2022] QIRC 2

Cases Citing

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Bakhash v State of Queensland (Department of Education) [2022] QIRC 3622 citations
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Brew v State of Queensland (Queensland Health) [2022] QIRC 2592 citations
Brown v State of Queensland (Queensland Ambulance Service) [2022] QIRC 3122 citations
Churchward v State of Queensland (Department of Education) [2025] QIRC 62 citations
Clarke v State of Queensland (Queensland Health) [2022] QIRC 893 citations
Collins v State of Queensland (Queensland Health) [2022] QIRC 2152 citations
Currie (Murray) v State of Queensland (Department of Education) [2022] QIRC 2692 citations
Daley v State of Queensland (Department of Education) [2023] QIRC 2771 citation
Daunt v State of Queensland (Department of Education) [2024] QIRC 2511 citation
Davies v State of Queensland (Queensland Health) [2022] QIRC 1512 citations
De Bruyns v State of Queensland (Queensland Health) [2024] QIRC 303 citations
De Martin v State of Queensland (Queensland Health) [2023] QIRC 2651 citation
Donnelly v State of Queensland (Queensland Health) [2022] QIRC 1493 citations
Elliott v State of Queensland (Queensland Health) [2022] QIRC 1392 citations
Elliott v State of Queensland (Queensland Health) [2022] QIRC 3322 citations
Fitzgerald v State of Queensland (Queensland Health) [2023] QIRC 874 citations
Fletcher v State of Queensland (Queensland Health) [2023] QIRC 452 citations
Graffunder v State of Queensland (Queensland Health) [2022] QIRC 764 citations
Hanson v State of Queensland (Queensland Health) [2022] QIRC 2722 citations
Harris v State of Queensland (Queensland Health) [2022] QIRC 1532 citations
Harry v State of Queensland (Queensland Health) [2022] QIRC 2932 citations
Janulewicz v State of Queensland (Queensland Health) [2023] QIRC 261 citation
Jones v State of Queensland (Queensland Ambulance Service) [2023] QIRC 222 citations
Jones v State of Queensland (Queensland Health) [2023] QIRC 752 citations
Knight v State of Queensland (Queensland Ambulance Service) [2022] QIRC 2832 citations
Mahon v State of Queensland (Queensland Health) [2022] QIRC 1562 citations
Maina v State of Queensland (Queensland Health) [2022] QIRC 1002 citations
Major v State of Queensland (Queensland Ambulance Service) [2023] QIRC 1132 citations
McGarry v State of Queensland (Queensland Health) [2023] QIRC 323 citations
McIver v State of Queensland (Queensland Health) [2022] QIRC 1213 citations
McKinney v State of Queensland (Queensland Health) [2023] QIRC 1324 citations
Murray v State of Queensland (Department of Environment and Science) [2022] QIRC 2002 citations
Neville v State of Queensland (Queensland Health) [2022] QIRC 921 citation
Nicholson v State of Queensland (Department of Education) [2022] QIRC 2712 citations
O'Neill v State of Queensland (Queensland Ambulance Service) [2022] QIRC 3082 citations
Richter v State of Queensland (Queensland Health) [2022] QIRC 2102 citations
Sankey v State of Queensland (Department of Education) [2024] QIRC 1972 citations
Smith v State of Queensland (Department of Environment and Science) [2022] QIRC 4001 citation
Stys v State of Queensland (Queensland Ambulance Service) [2022] QIRC 2652 citations
Tadeo v State of Queensland (Department of Education) [2022] QIRC 1772 citations
Thorley v State of Queensland (Department of Education) [2022] QIRC 1332 citations
1

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