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  4. Miric v State of Queensland (Queensland Health) - [2022] QIRC 309

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Miric v State of Queensland (Queensland Health)[2022] QIRC 309

Miric v State of Queensland (Queensland Health)[2022] QIRC 309

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Miric v State of Queensland (Queensland Health) [2022] QIRC 309

PARTIES: 

Miric, Elizabeth

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

PSA/2022/455

PROCEEDING:

Public Service Appeal – Appeal against a decision under a directive

DELIVERED ON:

9 August 2022

MEMBER:

Hartigan IC

HEARD AT:

On the papers

ORDER:

  1. The Appellant is granted an extension of time in which to lodge the appeal.
  1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed.
  1. Pursuant to s 566(1)(b) of the Industrial Relations Act 2016 (Qld), the stay of the decision issued on 20 April 2022 is revoked.

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL – appeal against a decision under a directive – where appellant applied for exemption from Queensland Health Human Resource Policy Employee COVID-19 vaccination requirements ('the Policy') on the grounds of other exceptional circumstances – where appellant submits that her role does not fall within an employee cohort to which the Policy applies –  where appellant requested individual risk assessment – where appellant expressed concerns about safety and efficacy of the COVID-19 vaccines – where respondent rejected appellant's exemption application on the basis of other exceptional circumstances – where appellant's role does fall within an employee cohort covered by the Policy – where appellant has not provided any evidence in support of her exemption application – where respondent not obligated to conduct an individual risk assessment or consider reasonable alternatives  – where decision fair and reasonable –  decision appealed against confirmed – stay of decision revoked 

INDUSTRIAL LAW – QUEENSLAND – APPEALS – application to extend time in which to commence appeal – where appeal lodged one day out of time – whether extension of time ought to be granted – consideration of relevant factors – application granted

LEGISLATION:

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

Public Service Act 2008 (Qld), s 194

Hospital and Health Boards Act 2011 (Qld), s 51A, s 51E

Queensland Health Human Resource Policy Employee COVID-19 cl 1, cl 2, cl 3, cl 5

CASES:

A1 Rubber (Aust)Pty Ltd v Chapman (Office of Industrial Relations) [2019] ICQ 016

Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245

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

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344)

Reasons for Decision

Introduction

  1. [1]
    Dr Elizabeth Miric is employed by the State of Queensland (Queensland Health) ('the Department'), in the position of Principal Advisor, Safety and Wellbeing, People and People Safety and Performance.
  1. [2]
    On 11 September 2021, the Department issued the Queensland Health Human Resource Policy Employee COVID-19 vaccination requirements ('the Policy'), which requires certain categories of employees to have received two doses of a COVID-19 vaccine and provide their line manager with evidence of confirmation of vaccination.[1] On 30 September 2021, the Director of the People Safety and Performance branch ('PSP') sent correspondence to employees employed in a PSP role and confirmed that as in interim arrangement, PSP roles will not be identified as requiring mandatory vaccination, however, this was subject to change in the future. On 23 December 2021, following a meeting with the PSP branch, it was determined that with the exception of three roles, all PSP roles were required to be vaccinated in accordance with the Policy. Relevantly,
    Dr Miric's role was one of the roles identified as requiring compliance with the Policy.
  1. [3]
    On 5 January 2022, Dr Miric applied for an exemption from the Policy on the basis of other exceptional circumstances. Dr Miric attached a letter to her application[2] expressing her concern regarding the assessment of her role under the Policy and the safety and efficacy of COVID-19 vaccines.
  1. [4]
    On 14 February 2022, the Department determined to refuse Dr Miric's application for exemption from compliance with the Policy. Dr Miric sought an internal review of this decision on 1 March 2022.
  1. [5]
    By letter dated 22 March 2022, the Department advised Dr Miric that it had confirmed the decision dated 14 February 2022 and that her application for exemption from compliance with the Policy on the basis of other exceptional circumstances had been denied ('the decision'). The Department directed Dr Miric to receive the required dose of a COVID-19 vaccination and provide written confirmation that she had received the required dose within seven days of receipt of the decision ('the direction').
  1. [6]
    By appeal notice filed in the Industrial Registry on 13 April 2022, Dr Miric appealed the decision of the Department and relies on the following grounds in support of her appeal, as set out in her appeal notice:

The decision to take the Covax as admitted by my employer, impinges on my human rights. The directive was made well after I was already employed. I have stated and continue to state that I am eager and willing to work and wear the appropriate PPE in at-risk situations.

  1. [7]
    The notice of appeal also indicated that Dr Miric was applying for an extension of time to lodge the appeal and provided the following reason as to why the appeal could not be lodged within the 21-day time period:

I have attempted to send my application within 21 days and have sent it via email on 12/04/22. However, I was advised that it must be posted or handed at the office. I have elected to send by express post, in which case I am not sure if it will arrive within the 21 days stipulated.

  1. [8]
    The appeal has been filed one day out of time.
  1. [9]
    On 20 April 2022, this Commission ordered that the decision the subject of the appeal be stayed until determination of the appeal or further order of the Commission pursuant to s 566(1) of the Industrial Relations Act 2016 (Qld) ('the IR Act'). 
  1. [10]
    The appeal is made pursuant to s 197 of the Public Service Act 2008 (Qld) ('the PS Act'), which provides that an appeal under Ch. 7, Pt. 1 of the PS Act is to be heard and determined under Ch. 11 of the Industrial Relations Act 2016 (Qld) ('the IR Act') by the Queensland Industrial Relations Commission.
  1. [11]
    Sections 562B(2) and (3) of the IR Act, which commenced operation on 14 September 2020, replicates the now repealed ss 201(1) and (2) of the PS Act.[3] Section 562B(3) of the IR Act provides that the purpose of an appeal is to decide whether the decision appealed against was fair and reasonable. Accordingly, the issue for my determination in this appeal is whether the decision is fair and reasonable.
  1. [12]
    I must decide the appeal by reviewing the decision appealed against. The word 'review' has no settled meaning and, accordingly, it must take its meaning from the context in which it appears.[4] An appeal under Ch. 7, Pt. 1 of the PS Act is not a re-hearing but, rather, involves a review of the decision arrived at and the decision-making process associated with it.[5]
  1. [13]
    For the reasons contained herein, I have determined to grant Dr Miric an extension of time to commence her appeal. I have further determined that the decision the subject of the appeal was fair and reasonable.

Discretion to hear the appeal out of time

  1. [14]
    Dr Miric's appeal notice provides that she attempted to file the appeal on 12 April 2022 but was advised that it must be either lodged in the Industrial Registry or posted due to the appeal documents exceeding the allowable page length. A review of Dr Miric's physical appeal notice clearly indicates that it is over 30 pages in length, and consequently, in accordance with Practice Direction 3 of 2021, is not considered 'filed' until a hard copy has been received by the Industrial Registry. 
  1. [15]
    The Department, in its written submissions, notes that the appeal has been filed one day out of time and contends that Dr Miric has not demonstrated a good reason as to why the timeframe should be extended, noting that she bears the onus of establishing that the justice of the case requires an extension of time and that the appeal notice states that documents over 30 pages must be supplied to the Industrial Registry in hard copy form before it will be accepted for filing.
  1. [16]
    Dr Miric, in her written submissions, acknowledges that the appeal was expected to be filed on 12 April 2022, however, submits that there is a discretion to allow for the acceptance of the application and that without evidence that the delay was unduly burdensome on the Department, the Department's submissions should be disregarded.
  1. [17]
    Section 564(2) of the IR Act bestows a discretion on the Commission to allow an appeal to be started within a longer period. In this regard, s 564(2) of the IR Act provides as follows:
  1. Time limit for appeal

…

  1. (2)
    However, on an application made during or after the appeal period, the industrial tribunal may allow an appeal to be started within a longer period.

…

  1. [18]
    Section 564(2) of the IR Act was considered by President Martin J in A1 Rubber (Aust)Pty Ltd v Chapman (Office of Industrial Relations)[6] as follows:

On an application to extend time, the approach of this Court was described by President Hall in the Neophytos Foundadjis v Collin Bailey in the following way:

“This Court has traditionally adhered to the view that s. 346 of the Industrial Relations Act 1999 represents a legislative assessment that in the ordinary category of cases, justice will best be served by adhering to a 21 day limitation period, though on occasion the limitation may defeat a perfectly good case and that the discretion to extend time should be exercised only where the applicant for an extension of time discharges a positive burden of demonstrating that the justice of the case requires the indulgence of a further period.” (citations omitted)

  1. [19]
    Accordingly, an appellant bears the burden of establishing that the justice of the case is one in which the Commission's discretion should be exercised.
  1. [20]
    The appeal has been filed one day out of time. I do not consider this to be a significant period of time.
  1. [21]
    Notwithstanding the Department submits that the appeal has been filed out of time and that statutory time frames should be respected, it is unclear from the Department's submissions whether it objects to the timeframe for the appeal being extended. Further, the Department has not particularised what prejudice it has suffered, if any, due to the one day delay in filing the appeal. However, I consider that if I do not permit Dr Miric to start her appeal within a longer period, she will suffer prejudice in that she will not be able to appeal the decision.
  1. [22]
    A review of the Commission file provides that the Industrial Registry advised Dr Miric of the filing requirements on 12 April 2022, this is the same day that Dr Miric signed the appeal notice containing the information about the filing requirements of documents over 30 pages. It is clear from Dr Miric's appeal notice that she made arrangements to have the appeal notice sent to the Industrial Registry by express post on 12 April 2022. A review of the Commission file provides that the Industrial Registry sent a copy of the appeal to the parties at 10:01am on 13 April 2022. Accordingly, the appeal was received by the Industrial Registry sometime prior to 10:01am on 13 April 2022.
  1. [23]
    I consider that Dr Miric made immediate arrangements for the filing of the appeal once the filing requirements came to her attention. I am therefore satisfied that, in the present circumstances, it is appropriate to grant Dr Miric's application for an extension of time to lodge her appeal.

The decision

  1. [24]
    The decision maker ultimately determined that the decision dated 14 February 2022, which sought to refuse Dr Miric's exemption application was fair and reasonable and that the original decision maker undertook the appropriate steps and consideration in relation to the exemption request.
  1. [25]
    The decision maker provided the following reasons in support of the decision:

My decision

In considering the requirements under PSC Directive 11/20 and the actions taken as  outlined above, I am Of the view that Mr Porter has undertaken appropriate steps and  consideration in relation to your mandatory vaccination exemption request. 

I am satisfied that your role as Principal Advisor falls within Group 3 for the purpose of the HR Policy B70. In reaching my view, I have considered the following:

  • Your duties as Principal Advisor which include:
  1. –consulting, advising, negotiating and raising the profile of health safety and wellbeing. This includes consulting with Health Safety and Wellbeing communities of practice within Queensland Health and across government agencies, and with unions, insurers, Regulators and other stakeholders.
  1. –Managing stakeholder relationships with Hospital and Health Services, Department of Health agencies, industry Regulators, insurers, unions, government agencies and community groups.
  1. –Monitoring, reviewing and undertaking complex analysis of health and safety incidents, performance reports and legislation to assist Officers to meet their Due Diligence duties, and to ensure the safety management system's effectiveness and maturation towards a best practice Safety Leadership Culture.
  • While I acknowledge you may have been able to perform these duties from 33 Charlotte Street or from home over the past two years due to the COVID-19  pandemic, this is not the Department's expectation moving forward. The relationships between Safety and Wellbeing and its stakeholders benefit from face to face interactions, including onsite visits with stakeholders who are located within hospitals and other facilities where clinical care or support is provided. The best way to understand the stakeholders' needs are to see them at work.
  • The Safety and Wellbeing Service Charter is in the final stages of being reviewed. The proposed Service Charter focuses on strengthening engagement and consultation with HHHs, including through onsite presence for matters such as external reviews, specific investigations and onsite visits. A meeting was held within the Safety and Wellbeing team about the changes to the Service Charter, and minutes of the meetings have been distributed within the team.

Where I am satisfied HR Policy B70 applies to you, it is then necessary for me to consider whether the decision to decline your application for an exemption was fair and reasonable. I am satisfied it was for the following reasons:

  • It is clear you have a personal preference not to receive a COVID-19 vaccine. You have expressed concern about the safety and efficacy of the COVID-19 vaccines.
  • COVID-19 vaccines are not experimental. They have undergone all of the usual assessments including peer review and publication of phase one, two and three clinical trials and review by multiple licensing bodies including the Therapeutic Goods Administration.
  • Further, a COVID-19 vaccine is not a medical procedure. The vaccines are now in routine clinical use to prevent disease. They are not used to treat disease. You are not being forced to receive a medical procedure or medical treatment.
  • Prior to the introduction of HR Policy B70, the Department complied with its obligations under the Work Health and Safety Act 2011 to consult with employees and with the registered unions representing employees. The consultation included dedicated meetings with registered unions representing employees employed within the Department.
  • The Department undertook risk assessments for its whole workforce in satisfaction of its obligations under the Work Health and Safety Regulation 2011 (in particular, ss 34 and 36(2)). The Director-General received regular briefings from the Chief Health Officer regarding the risks of COVID-19. From these briefings, the Director General was satisfied there was a demonstrable level of risk associated with the work performed by employees to which HR Policy B70 applied. The Department's obligations do not require it to undertake a risk assessment for each and every role within it. Clause 1 of HR Policy B70 provides further information in relation to risk management of COVID-19 within the workplace.
  • I consider the importance of ensuring workers covered by HR Policy B70 comply with the direction to become vaccinated outweighs any individual concerns you may have. Vaccination has proven to be successful in preparing the State for outbreaks of COVID-19, including the most recent Omicron outbreak. Despite the surge in cases, rates of severe illness, hospitalisations and deaths were well below what modeling had predicted and the health system was not overwhelmed, The Chief Health Officer attributes this to the high vaccination coverage, noting that over 90% of people in Queensland are fully vaccinated.
  • High vaccination coverage among workers in settings with the potential for exposure to COVID-19 is a key determinant to the health outcomes for the Queensland community and health care delivery across the State. Further, limiting transmission within the workplace through COVID-19 vaccination will also reduce the likelihood of workplace outbreaks and staff shortages.
  • Vaccine hesitancy or a personal objection to receiving a COVID-19 vaccine does not amount to an exceptional circumstance.

I have therefore decided to confirm Mr Porter's decision to decline your application for exemption from vaccination. You are not exempt from the requirements of HR Policy B70.

  1. [26]
    The decision maker also considered the effect of the decision on Dr Miric's human rights as follows:

Human Rights considerations

HR Policy B70 and the Chief Executive Officer's directions make vaccination compulsory for certain workers and others in specific circumstances to be vaccinated to protect the community during the pandemic. I acknowledge that my decision engages or limits a number of your human rights, including your right to equality and non-discrimination, I am satisfied that those limits on human rights are justified by the need to ensure the readiness of the health systems in responding to the COVID-19 pandemic, and to protect the lives of employees, patients and the community they serve.

Relevant legislation and policy

  1. [27]
    Section 194 of the PS Act provides for decisions against which appeals may be made and relevantly includes:

194 Decisions against which appeals may be made

  1. (1)
    An appeal may be made against the following decisions –
  1. (a)
    a decision to take, or not take, action under a directive;

…

  1. [28]
    The Policy sets out the mandatory vaccination requirements for all current and prospective health service employees employed under the Hospital and Health Boards Act 2011 (Qld) ('HHB Act').
  1. [29]
    Section 51A of the HHB Act provides for the issuing of health employment directives and is set out in the following terms:

51A Health employment directives

  1. (1)
    The chief executive may issue health employment directives about the conditions of employment for health service employees.
  2. (2)
    Without limiting subsection (1), a health employment directive may be about the following—
  1. (a)
    remuneration for health executives and senior health service employees;
  2. (b)
    the classification levels at which health executives and senior health service employees are to be employed;
  3. (c)
    the terms of contracts for health executives and senior health service employees;
  4. (d)
    the professional development and training of health service employees in accordance with the conditions of their employment.
  1. (3)
    A health employment directive may apply to any or all of the following—
  1. (a)
    the department, a Service or all Services;
  2. (b)
    health service employees, or a stated type of health service employee.
  1. [30]
    Section 51E(1) of the HHB Act provides that, inter alia, a health employment directive that applies to an employee of the department is binding on the employee and the department.
  1. [31]
    The Policy sets out the mandatory vaccination requirements for all current and prospective employees of the Department.
  1. [32]
    Clause 1 of the Policy identifies the potential risk posed to relevant employees, and the risk profile of those employees as follows:

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. [33]
    Clause 2 of the Policy includes a table[7] which separates Queensland Health employees into a group number based on their employee cohort. Relevantly, Dr Miric falls within Group 3 which includes employees who are employed in roles that require attendance at a hospital or other facility where clinical care or support is provided.
  1. [34]
    Clause 3 of the Policy sets out the mandatory vaccination requirements for existing employees as follows:

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

  • have received the first dose and second dose of a COVID-19 vaccine by 27 February 2022.

An existing employee must provide their line manager or other designated person:

  1. 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.
  2. b. evidence of vaccination confirming that the employee has received both doses of a COVID-19 vaccine by no later than 7 days after receiving the vaccine.

An existing employee must maintain vaccine protection. Therefore, an existing employee is required to receive the prescribed subsequent dose/s of a COVID-19 vaccination (i.e. booster), as may be approved by the Australian Technical Advisory Group on Immunisation (ATAGI), within any recommended timeframe following the second dose. Evidence of vaccination, confirming the employee has received prescribed subsequent dose/s of the vaccine, is to be provided to their line manager or other designated person within 7 days of receiving the vaccination.

  1. [35]
    Clause 5 of the Policy provides that where an employee is unable to be vaccinated, an exemption may be considered and is in the following terms:

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.

Whether the decision is fair and reasonable

  1. [36]
    As noted above, the Commission, in an appeal such as this, is to conduct a review of the decision to determine whether it is fair and reasonable.
  1. [37]
    Dr Miric contends that the decision is not fair and reasonable on the basis that her role does not fall within the scope of the Policy and therefore should not be subjected to the COVID-19 vaccine mandate.
  1. [38]
    In support of this contention, Dr Miric makes the following submissions,[8] as relevantly summarised:
  1. (a)
    Dr Miric's role is an administrative based role, is very high level, and includes, writing and revisions of work health and safety policy, standards and guidelines, high level reporting of incidents and oversight of assurance activities to safety managers across Queensland Health;
  1. (b)
    Dr Miric does not work in a clinical role, or a healthcare worker role and has no contact with patients or with people working with COVID-19 patients;
  1. (c)
    due to the vast distances of the health services throughout Queensland, the Department has implemented online and video calls to allow Dr Miric to communicate with the safety managers and networks throughout Queensland which works very well;
  1. (d)
    for several extended periods throughout 2020 to 2022, Dr Miric has completed all of her work requirements from home and has not attended the office  since January 2022, demonstrating her role does not require person-to-person contact; and
  1. (e)
    Dr Miric's role does not fall into any of the groups listed in Table 1 of the Policy, nor is she required to attend any of the prescribed locations set out in the Policy.
  1. [39]
    Dr Miric submits that she is willing and able to wear any personal protective equipment as required during 'at-risk' situations, will undertake rapid antigen testing before attending work and will contain to maintain proper hygiene.
  1. [40]
    The decision maker clearly sets out the considerations she has had regard to when determining that Dr Miric's role is covered within Group 3 of the Policy. Relevantly, the decision maker notes that Dr Miric is required to undertake the following duties:
  1. –consulting, advising, negotiating and raising the profile of health safety and wellbeing. This includes consulting with Health Safety and Wellbeing communities of practice within Queensland Health and across government agencies, and with unions, insurers, Regulators and other stakeholders.
  1. –Managing stakeholder relationships with Hospital and Health Services, Department of Health agencies, industry Regulators, insurers, unions, government agencies and community groups.
  1. –Monitoring, reviewing and undertaking complex analysis of health and safety incidents, performance reports and legislation to assist Officers to meet their Due Diligence duties, and to ensure the safety management system's effectiveness and maturation towards a best practice Safety Leadership Culture.
  1. [41]
    Group 3 covers the following employees and prospective employees as set out in the Policy:

All other public 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/clinics.

  1. [42]
    The decision maker further notes, that whilst Dr Miric has been able to mostly perform these duties from home over the past two years due to COVID-19, the Department is moving to a new Safety and Wellbeing Service Charter focusing on strengthening engagement and consultation through onsite presence, and that a meeting was held with the Safety and Wellbeing team to advise of these changes.
  1. [43]
    The Department submits that it is not operationally possible for Dr Miric to perform her duties wholly from home on a permanent or indefinite basis, noting that Dr Miric's role requires her to be available to attend a hospital or a health service facility when required. Further, the Department submits that permitting Dr Miric to work from home due to Dr Miric not receiving a COVID-19 vaccination is not a solution to Dr Miric's ongoing refusal to comply with the Policy.
  1. [44]
    Having regard to Dr Miric's duties as set out by the decision maker, I consider that
    Dr Miric's role is captured under Group 3 of the Policy and therefore Dr Miric is required to comply with the Policy unless she is granted an exemption.
  1. [45]
    Further, I consider that the Department's contention that it is not operationally possible for Dr Miric to perform her duties wholly from home to be fair and reasonable, noting that the Department's expectation moving forward is an increase in an onsite presence to strengthen engagement and consultation. The work from home arrangements were clearly put in place on a short-term basis and I consider it fair and reasonable that the employer has expressed an expectation that employees are to return to the workplace going forward. Obviously, such a return to work will need to be managed in a reasonable way.
  1. [46]
    In Dr Miric's further submissions,[9] the following matters are raised in support of her contention that the decision is unjust and unreasonable:
  1. (a)
    the decision makes no reference to the work environment that Dr Miric works in, or the particulars of her functions within Queensland Health;
  1. (b)
    the decision makes a generic statement about the 'high level efficacy' of the vaccine, is wholly generic and is inadequate to be relied on as a justification for a workplace requirement, therefore it is impossible to conclude that an appropriate risk assessment has been supplied;
  1. (c)
    the decision fails to assess the risk presented to Dr Miric's position and there has been a failure to consider reasonable alternatives to vaccination; and
  1. (d)
    it is not sufficient to make a determination of Dr Miric's current situation based on a projection to alter her employment role, and no such alternation has occurred.
  1. [47]
    As noted above, the decision clearly sets out the duties Dr Miric is required to undertake in her role with the Department, which relevantly includes being available to attend hospitals or health service facilities when required to do so. I am satisfied that the decision maker had regard to the particular circumstances of the role performed by Dr Miric and formed a view that Dr Miric's role fell within Group 3 of the Policy. Having reviewed the material, including the role description for the role, the duties of the role set out in the decision appear to accord with the role description provided in the material. I consider that a conclusion that Dr Miric's role falls within Group 3 of the Policy was available to be made on the material before the decision maker.
  1. [48]
    In respect of Dr Miric's submission regarding the decision maker's failure to assess the risk presented to Dr Miric's position and the Department's failure to consider reasonable alternatives, the decision maker clearly notes that the Department undertook risk assessments for the whole workforce in satisfaction of its obligations under ss 36 and 34 of the Work Health and Safety Regulations 2011 (Qld) and also notes that the Department is not obliged to conduct individual risk assessments for each role. Further, whether reasonable alternatives are available for Dr Miric to be re-deployed in is not a relevant consideration with respect to Dr Miric's request to be exempt from compliance with the Policy and therefore not required to be considered by the decision maker.
  1. [49]
    Accordingly, I do not consider the decision maker's findings with respect to these matters renders the decision as not fair and reasonable.
  1. [50]
    Additionally, Dr Miric applied for the exemption on the basis of other extenuating circumstances. Dr Miric attached a letter, seemingly authored by herself, in support of her application. The letter states that she has sincere doubts regarding the efficacy of the COVID-19 vaccine and has sincere concerns about the effects of the COVID-19 vaccines on her health.
  1. [51]
    Dr Miric did not provide the decision maker at the time the application was made, or subsequently, with any documentation or material that indicates she has a medical or other contraindication that would preclude her from safely being administered a COVID-19 vaccine.
  1. [52]
    It is clear from the material filed in this matter that, Dr Miric is hesitant to be administered one of the COVID-19 vaccines due to her concern regarding the efficacy and effects on her personal health.
  1. [53]
    Vaccine hesitancy is not a ground for an exceptional circumstance that would support an exemption application. While Dr Miric is entitled to hold the concerns she has expressed in relation to the safety and efficacy of the COVID-19 vaccination, it is not incumbent on the Department to accept Dr Miric's view.[10] The Department has relied on reliable evidence, including the approval of the vaccine by the Therapeutic Goods Administration to satisfy itself as to the safety and efficacy of the COVID-19 vaccines. It was fair and reasonable for the decision maker to conclude that vaccine hesitancy or a personal objection to the COVID-19 vaccine does not amount to an exceptional circumstance.

Conclusion

  1. [54]
    Dr Miric has failed to establish that the decision was not fair and reasonable. Further, Dr Miric has not demonstrated that she should be exempt from compliance with the Policy on the basis of other exceptional circumstances.
  1. [55]
    Consequently, I am satisfied that the decision subject to this appeal is fair and reasonable.

Order

  1. [56]
    Accordingly, I make the following orders:
  1. The Appellant is granted an extension of time in which to lodge the appeal.
  1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed.
  1. Pursuant to s 566(1)(b) of the Industrial Relations Act 2016 (Qld), the stay of the decision issued on 20 April 2022 is revoked.

Footnotes

[1] QH Human Resource Policy Employee COVID-19 vaccination requirements, cls 2 and 3. 

[2] Respondent's submissions filed on 4 May 2022, Attachment 4.

[3] See the Public Service and Other Legislation Amendment Act 2020 (Qld).

[4] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261 (Mason CJ, Brennan and Toohey JJ).

[5] Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018).

[6] [2019] ICQ 16.

[7] Table 1.

[8] Filed on 27 April 2022.

[9] Filed on 11 May 2022.

[10] Tilley v State of Queensland (Queensland Health) [2022] QIRC 022, [39] – [42].

Close

Editorial Notes

  • Published Case Name:

    Miric v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Miric v State of Queensland (Queensland Health)

  • MNC:

    [2022] QIRC 309

  • Court:

    QIRC

  • Judge(s):

    Hartigan IC

  • Date:

    09 Aug 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
A1 Rubber (Aust) Pty ltd v Chapman (Office of Industrial Relations) [2019] ICQ 16
2 citations
Jump To
Cite 1 - [2019] ICQ 16
Cite 2 - [2019] ICQ 16
Brandy v Human Rights & Equal Opportunity Commission (1995) 183 CLR 245
2 citations
Jump To
Cite 1 - (1995) 183 CLR 245
Cite 2 - (1995) 183 CLR 245
Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10
1 citation
Jump To
Cite 1 - [1995] HCA 10
Chiotakis v Queensland Museum Network [2022] QIRC 22
1 citation
Jump To
Cite 1 - [2022] QIRC 22
Goodall v State of Queensland [2018] QSC 319
3 citations
Jump To
Cite 1 - [2018] QSC 319
Cite 2 - [2018] QSC 319
Cite 3 - [2018] QSC 319
Hunter Valley Dev Pty Ltd v Cohen (1984) 3 FCR 344
1 citation
Jump To
Cite 1 - (1984) 3 FCR 344

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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