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Brown v State of Queensland (Queensland Ambulance Service)[2022] QIRC 312

Brown v State of Queensland (Queensland Ambulance Service)[2022] QIRC 312

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Brown v State of Queensland (Queensland Ambulance Service) [2022] QIRC 312

PARTIES:

Brown, Lyndsey

(Appellant)

v

State of Queensland (Queensland Ambulance Service)

(Respondent)

CASE NO.:

PSA/2022/409

PROCEEDING:

Public Service Appeal

DELIVERED ON:

9 August 2022

HEARING DATE:

4 August 2022

HEARD AT:

Brisbane

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 – 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 – where appellant has genuinely held religious beliefs – consideration of human rights – whether respondent considered alternative arrangements – where decision is fair and reasonable – decision appealed against confirmed

LEGISLATION & OTHER INSTRUMENTS:

Human Rights Act 2019 (Qld) s 13

Industrial Relations Act 2016 (Qld) 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:

Bloxham v State of Queensland (Queensland Police Service) [2022] QIRC 037

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

APPEARANCES:

Mrs L Brown, the Appellant herself.

Mr L Casey and Ms K White for the Respondent.

Reasons for Decision

Introduction

  1. [1]
    Mrs Lyndsey Brown (the Appellant) is employed as an Advanced Care Paramedic II 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 provided 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 21 September 2021, the Appellant applied for an exemption on the basis of a 'genuinely held religious belief'.[4]
  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 she intended to comply with the vaccination mandate, wished for her original exemption application to be considered under the Policy provisions with no amendments or whether she wished to provide any updated information in support of her original exemption application.[5]
  1. [8]
    On 2 February 2022, the Appellant responded to Mr Clarke's correspondence and provided further documentation in support of her existing exemption application.[6]
  1. [9]
    On 17 February 2022, Mr Clarke advised the Appellant her exemption application had been refused.[7] On 24 February 2022, the Appellant requested an internal review of the refusal.[8]
  1. [10]
    On 25 March 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 4 April 2022.

Jurisdiction

The decision subject of this appeal

  1. [11]
    I am satisfied the Decision constitutes a 'fair treatment decision' and the Appellant has used her 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. [12]
    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. [13]
    The Decision was given on 25 March 2022 and the Appeal Notice was filed on 4 April 2022. Therefore, I am satisfied the Appeal Notice was filed by the Appellant within the required timeframe.

What decisions can the Commission make?

  1. [14]
    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. [15]
    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. [16]
    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. [17]
    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. [18]
    The relevant principles in considering whether a decision is 'unreasonable' were enunciated by Ryan J in Gilmour v Waddell & Ors (emphasis added, citations removed):[9]

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. [19]
    In accordance with the Directions Order issued on 13 April 2022, the parties filed written submissions.
  1. [20]
    The Appellant sought the opportunity to provide oral submissions to the Commission and I granted leave for the Appellant to do so at a Hearing on 4 August 2022. The Respondent was invited but elected not to provide oral submissions in reply.
  1. [21]
    I have carefully considered all oral and written submissions but have determined not to approach the writing of this decision by summarising the entirety of those arguments. 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. [22]
    Clause 1 of the Policy relevantly provides:

The COVID-19 virus has been shown to disproportionately affect healthcare workers, including paramedics, and health support staff and poses a significant risk to Queensland Ambulance Service (QAS) 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 policy requires QAS employees who are identified as being in high risk groups to be vaccinated against COVID-19.

Prospective and existing QAS 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, vehicles, car parks, with people working with suspected or actual COVID-19 patients) or to be exposed to the virus due to the nature of their work.
  1. [23]
    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.

Consideration

  1. [24]
    The Appellant submits the Decision is unfair and unreasonable on the basis that:
  • the decision-maker failed to properly consider the exemption application;
  • the decision-maker did not give proper consideration to the Appellant's individual circumstances;
  • QAS have failed to undertake a risk assessment;
  • the decision-maker failed to take relevant considerations into account;
  • the decision-maker took irrelevant and incorrect matters into account;
  • the decision-maker made the Decision for an improper purpose;
  • the decision-maker failed to consider any alternative roles; and
  • the decision to issue a direction within the Decision is unreasonable.
  1. [25]
    During her oral submissions, within her written submissions and in correspondence dated 2 February 2022, the Appellant referred to several factors which appeared to form part of an argument that there were circumstances, other than her religious beliefs, that warrant the granting of an exemption. Those submissions include:
  • there is a high workload and staff shortage within QAS and therefore it is now desirable and appropriate that the Appellant return to her normal operational duties;
  • the Appellant is prepared to maintain a high level of PPE, hygiene, social distancing and regular testing; and
  • the Appellant expressed an interest in undertaking alternative working arrangements.
  1. [26]
    Further, on 24 February 2022, in her request for an internal review of the original exemption refusal (and as expanded on in her oral submissions), the Appellant raised the following issues:
  • alternative evidence suggests the vaccinations do not prevent transmission or contraction of COVID-19 and therefore the Appellant's human rights in relation to religious belief ought to be more heavily weighed;
  • there is no adequate medical evidence supporting the Respondent's position; and
  • the Appellant requested further information from the Respondent.
  1. [27]
    I will deal with each of matters issued in turn.

Failed to properly consider the exemption application

  1. [28]
    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. [29]
    The Appellant annexed to her original exemption application a document titled 'Affidavit of Membership in the Confraternity of Our Lady of Fatima' signed by Bishop Athanasius Schneider. That affidavit states the Appellant:

Is a perpetual member of the Confraternity of Our Lady of Fatima in good standing and as such holds to the following deeply held religious belief that

the crime of abortion is so monstrous that any kind of concatenation with this crime, even a remote one, such as vaccines that use aborted fetal cells for the testing or production, is immoral and cannot be accepted under any circumstances by a Catholic.

  1. [30]
    On 2 February 2022, the Appellant provided further supporting documentation in the form of a letter from Fr Damien Fox, Parish Priest of Society of St Pius X Ltd dated 3 December 2021. The correspondence relevantly states:
  • the Appellant "is a baptized Catholic and long-standing parishioner of chapels services by priests of 'the Society of St Pius X'";
  • the Appellant "has a sincere and ongoing strong commitment to the teachings of the Catholic Church";
  • "The Catholic Church teaches that a person may be required to refuse a medical intervention, including a vaccination, if his or her conscience, informed by the teachings of the Church, comes to this judgment";
  • "There is a moral duty to refuse the use of medical products, including certain vaccines, that are created using human cell lines derived from abortion; however, it is permissible to use such vaccines only under case-specific conditions – if there are no other alternatives available and the intent is to preserve life";
  • "A person is morally required to obey his or her conscience";
  • "the Catholic Church has firmly and consistently condemned abortion under any and all circumstances";
  • "a Catholic may legitimately refuse a vaccine based on the Church's teachings concerning therapeutic proportionality… an assessment of whether the benefits of a medical intervention outweigh the undesirable side-effects and burdens in light of the integral good of the person, including spiritual, psychological, and bodily goods";
  • the Human Rights Act 2019 (Qld) provides for "freedom of thought, conscience, religion and belief"; and
  • the acceptance of the COVID-19 vaccination would be contrary to the Appellant's religious beliefs.
  1. [31]
    The Appellant also submitted a document titled 'Clarification on the importance of Conscience and Vaccine Mandates' by the Australian Catholic Medical Association as well as a document titled 'Vaccine Exemption Resource for Individuals' by the 'National Catholic Bioethics Center'.
  1. [32]
    Through the exemption application form, the Appellant was put on notice that although the Respondent may accept she has a genuinely held religious belief, her request would be "considered in accordance with Queensland Health's obligations and that approval will be only provided in exceptional circumstances."
  1. [33]
    In her oral submissions, the Appellant expanded on her view that the Respondent had not properly contemplated and balanced her religious belief grounds against the efficacy of the COVID-19 vaccinations. The Appellant questioned why the Respondent would include provision to apply for an exemption on the basis of religious beliefs if they were going to rely on the Chief Health Officer's advice as a basis to refuse her request.  The Appellant contends the decision-maker based his decision on the premises that COVID-19 will kill and vaccination is the only way to reduce risk – and although that may be valid reasoning to mandate the vaccination with provision for exemptions, it is not valid reasoning to base a decision on about the exemption. The Appellant argued that the Decision is unreasonable in light of current data suggesting vaccination has very limited impact on transmission rates, other staff are vaccinated and she has recently recovered from COVID-19.
  1. [34]
    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 should not be granted in the circumstances. 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 and ATAGI's advice that the highest priority for providing optimal community-wide protection against COVID-19 is achieving very high vaccination coverage of primary vaccination doses for all eligible Australians.[10] On that basis, 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. [35]
    The Appellant contends that "the proper process" would have been to consider and weigh the risk that she would pose to others if allowed to continue working against the restriction on her human rights. During her oral submissions, the Appellant also argued the decision-maker should have considered the impacts of the Decision on the workforce, including staff shortages and staff coverage.
  1. [36]
    The Appellant's arguments in this regard indicate the Appellant does not appreciate the importance and purpose of the Policy as well as the significant risk the COVID-19 virus carries and how it disproportionately affects healthcare workers connected to patients, vulnerable people and the broader community.
  1. [37]
    Although I appreciate the Appellant's concern for her colleagues and the community, ultimately the balancing of risk is not the Appellant's decision – it is the Respondent's decision. The decision-maker clearly expressed that permitting a person who has not complied with the vaccination requirements to work in a healthcare setting is an arrangement that is limited and temporary in nature and "not required to be activated within the QAS environment at this time." Even if staff shortage issues have resulted from the Policy, it is open to the Respondent to determine that the risk of unvaccinated QAS employees attending to their duties is too significant. The Appellant may disagree with that course, however her differing view does not render the Decision unfair or unreasonable.
  1. [38]
    The Appellant also raised arguments with respect to human rights and in her oral submissions she submitted that individual human rights had been effectively swept under the carpet. However, I note the decision-maker stated:

The QAS HR Policy makes vaccination compulsory for certain workers and others in specific circumstances to protect the community during the pandemic. I acknowledge that my decision may engage a number of your human rights, including your right to recognition and equality before the law, your right to freedom of thought, conscience, religion and belief and your right to take part in public life (through employment in the public service). I am satisfied that any limits on human rights engaged are justified by the need 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 and to discharge the Department of Health's legal obligations including under the Work health and Safety Act 2011. I do not consider there is any less restrictive means, other than vaccination, which would sufficiently ensure your safety and the safety of other staff and patients.

  1. [39]
    I have taken into consideration the Appellant's arguments with respect to human rights and note s 13(1) of the Human Rights Act 2019 (Qld) (the HR Act) provides that "A human right may be subject under law only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom." Section 13(1) of the HR Act clearly indicates that rights are generally not absolute and are allowed to be limited in justifiable circumstances.
  1. [40]
    I am satisfied the Respondent's consideration of human rights does not render the Decision unfair or unreasonable. I accept the Respondent's conclusion to be reasonable in light of the need to ensure the readiness of QAS in responding to the COVID-19 pandemic as well as to ensure the safety of other employees, patients and the community more broadly. The Appellant's views on human rights simply differ to that of the Respondent and a differing view does not render the Appellant's circumstances 'exceptional'.
  1. [41]
    As I similarly concluded in Bloxham v State of Queensland (Queensland Police Service),[11] the Respondent thoroughly considered and appropriately concluded that any limitation of a human right by virtue of the Decision is reasonable and justified in light of competing interests and the seriousness of those interests. On that basis, I reject the Appellant's arguments that the Decision was not fair and reasonable by virtue of the consideration of her human rights.
  1. [42]
    For the reasons outlined above, I reject the Appellant's argument that the decision-maker failed to properly consider her exemption application. The Appellant's religious beliefs were taken into consideration, and it was reasonable for the Respondent to weigh those beliefs against the purposes of the Policy. The decision-maker did not merely apply the Policy without careful consideration. I am satisfied the Decision is based on intelligible justification that is not negated by the fact the Appellant may have differing views.

Applied a rule or policy without regard to the Appellant's specific circumstances

  1. [43]
    The Appellant contends the decision-maker applied the vaccination mandate and the position that "there are no less restrictive means other than vaccination" without regard for her specific circumstances. The Appellant submits that in doing so, the decision-maker did not consider the matters she had raised in her correspondence, did not undertake any risk assessment nor properly consider her human rights.
  1. [44]
    Upon review of the material, it appears that again the Appellant has a differing view to that expressed by the Respondent. A differing view does not render the Decision unfair or unreasonable. My reasons follow.
  1. [45]
    The Appellant has expressed a willingness to wear proper PPE and undertake alternative measures such as social distancing and regular testing as an alternative to receiving the COVID-19 vaccination. That is not a reasonable alternative to getting vaccinated. The Respondent determined that vaccination, when used in combination with other risk control measures, constitutes the most effective and reliable risk control measures that are currently reasonably practicable. In light of the Chief Health Officer's direction, I accept that determination to be reasonable. The fact that the Appellant has a different view, does not render the Decision unreasonable.
  1. [46]
    Significantly, the Policy contemplates the fact that paramedics are unable to observe public health requirements at times, including physical distancing, working in areas of high population density and rapid donning/doffing of PPE in emergent situations. The measures proposed by the Appellant should supplement the requirements under the Policy, not replace those requirements. It is simply not operationally feasible for the Respondent to devolve to each individual employee the responsibility to implement and undertake precautionary measures, at their own election and on their own accord instead of following the Policy.
  1. [47]
    With respect to the Appellant's argument regarding alternative arrangements not being considered, 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. [48]
    That excerpt suggests alternative arrangements had been appropriately considered.
  1. [49]
    The Appellant's role as an Advanced Care Paramedic II 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 her duties.[12] I appreciate that the positions of Mr Radev and the Appellant are different but consider that the same principle applies in both circumstances.
  1. [50]
    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".[13] 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, her colleagues and the broader community.
  1. [51]
    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. [14]

  1. [52]
    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. 
  1. [53]
    I have already considered the issue of human rights at [38] – [41] above.
  1. [54]
    Overall, I am satisfied the Respondent took into consideration the Appellant's submissions and did not merely apply a blanket rule but rather appropriately considered and assessed her individual circumstances.

Failure to undertake any risk assessment

  1. [55]
    The Appellant contends the decision-maker failed to undertake a risk assessment and did not give any consideration to the number of the Appellant's co-workers who are vaccinated, the impact a single unvaccinated staff member would have on the risk profile, the number of possible patients who are vaccinated, the number of people with whom the Appellant comes in contact and the Appellant's living arrangements. Further, the Appellant contends the decision-maker did not take into consideration the fact that she cannot transmit the COVID-19 virus if she does not have the virus and that she would be able to ascertain whether she has the virus by undertaking a PCR or RAT before each shift.
  1. [56]
    I have already considered the Appellant's arguments with respect to her proposed alternative measures at [45] – [46] above.
  1. [57]
    With respect to the Appellant's arguments regarding risk assessments and what she contends should have been considered, I refer to Industrial Commissioner Dwyer's decision in Gundrum v State of Queensland (Queensland Health) ('Gundrum'), where he concluded:[15]

[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.[16]

[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.[17]

…

  1. [58]
    I follow Industrial Commissioner Dwyer's reasoning in Gundrum as extracted above.

Failure to take relevant considerations into account

  1. [59]
    The Appellant lists a number of considerations she contends the decision-maker failed to take into account.
  1. [60]
    The Decision referred to ATAGI's advice that the highest priority for providing optimal community-wide protection against COVID-19 is achieving high vaccination coverage. Further, the Decision provides that the COVID-19 vaccinations have undergone 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. I am satisfied that those considerations were the most appropriate and reasonable in the circumstances.
  1. [61]
    The Appellant contends the decision-maker failed to properly consider the possible consequences in the event she were to transmit the virus while working – including that the vast majority of people are vaccinated, the mildness of symptoms, availability of treatments and transmissibility between vaccinated people. Again, it is clear the Appellant has a different view about the risk and consequences of transmitting the COVID-19 virus. It appears the Appellant contemplates a scenario where she is the only unvaccinated employee permitted to work. It is peculiar that the Appellant would consider it appropriate that the vaccination status of others negates the need for her to comply with the Policy. Further, although the Appellant may have experienced mild symptoms and had access to treatments, that does not mean that the patients and colleagues that she comes in contact with will. 
  1. [62]
    The decision-maker relevantly considered the Appellant's religious beliefs against the purpose of the Policy and reasonably concluded that she should not be granted an exemption in the circumstances.

Consideration of irrelevant (or factually incorrect) matters

  1. [63]
    The Appellant submits the decision-maker considered a number of irrelevant or factually incorrect matters. The Appellant makes a number of assertions such as "Daily PCR or RAT testing in conjunction with full PPE is… significantly more effective at preventing transmission of COVID-19 to my colleagues and persons accessing healthcare" and "While vaccination may reduce the severity of the symptoms from which a person who contracts COVID-19 may suffer… it clearly has no significant impacts on the transmissibility of the virus." Further, the Appellant submits that closing state borders and imposing snap lockdowns "was clearly more effective at preventing the spread of COVID-19."
  1. [64]
    The Appellant's assertions are not supported by evidence, but clearly evince her personal views. The fact the Appellant considers those matters to be factually correct when perhaps the decision-maker did not, does not render the Decision unfair or unreasonable.

Improper purpose

  1. [65]
    The Appellant contends the decision-maker made the Decision for an improper purpose, including to force her to be vaccinated, prevent unvaccinated paramedics from working for QAS, promote the Queensland Government's position in relation to vaccination, for publicity "and/or" to avoid any publicity. It is clear that these submissions constitute the Appellant's speculation and non-acceptance that the Decision was made after consideration of the Appellant's circumstances, to achieve the purpose of the Policy. 
  1. [66]
    With respect to the Appellant's arguments regarding consent, I am not satisfied that the Appellant has been deprived consent in respect to receiving the COVID-19 vaccination, nor has she been "forced". The Appellant may freely choose not to receive the COVID-19 vaccination - it is not being forced upon her. The alternative to consenting to the vaccination is to elect not to receive it – the Appellant has freely made that decision. There is no obligation that the Appellant continue to work for QAS.
  1. [67]
    The issue of consent was also considered in the matter of Kassam v Hazzard; Henry v Hazzard[18] 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.

Failure to consider alternative roles

  1. [68]
    I have considered the Appellant's arguments in this regard at [47] – [52] above.

The decision to issue a Direction

  1. [69]
    The Appellant takes issue with the decision-maker's concluding direction to receive a first dose of a COVID-19 vaccination and provide evidence of having done so by 1 April 2022. However, clearly the direction came off the back of the decision-maker's refusal of the Appellant's exemption application. A further direction was a reasonable and natural course to follow after the decision-maker determined that the Appellant's religious beliefs were not grounds for an exemption.
  1. [70]
    The Appellant referred to a "medical exemption". However, there is no information before me that suggests the Appellant applied for an exemption on the basis of a medical contraindication. In any event, that "medical exemption" ceased on 17 May 2022. Further, taking accrued leave is not an appropriate mechanism by which the Appellant can circumvent the Policy requirements.
  1. [71]
    The decision to issue a direction was not only fair and reasonable, but to be expected following the rejection of the Appellant's exemption application.

Questions and requests for further information

  1. [72]
    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 and QAS's legislative obligations and industrial arrangements however limited exemptions will be granted. 

  1. [73]
    I note the Appellant did not formally apply for an exemption on the basis of 'other exceptional circumstances' – however her submissions tend to indicate that she believes she should be exempt for a number of reasons in addition to her genuinely held religious beliefs.
  1. [74]
    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. [75]
    The Appellant has also raised several issues with the weight, interpretation and ambiguity of medical evidence behind the Respondent's submissions. In doing so, the Appellant refers to her own research. Again, the issue for the Appellant is that her differing views are not 'exceptional' and on that basis, the Respondent had a fair and reasonable cause to refuse her exemption request. Further, the Respondent is concerned with more than just the risk the Appellant's vaccination status poses to her colleagues and the community – they are also concerned with the readiness of the QAS to respond to the needs of the public.
  1. [76]
    I note that within the Decision, the decision-maker outlines the reasons why the Respondent is of the view that COVID-19 presents significant risk. In a reasonable attempt to address the Appellant's submissions, the Respondent notes the Chief Health Officer is the most senior medical officer in the State, the mandate was introduced to ensure compliance with the CHO Direction and to meet its duty of care to staff, patients and the public. The Respondent also notes the COVID-19 vaccinations have been approved by the Therapeutic Goods Administration and the Australian Technical Advisory Group on Immunisation. Despite those comments, I accept QAS is not required to provide the Appellant with assurances concerning the safety or efficacy of the COVID-19 vaccinations.
  1. [77]
    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.[19]  

  1. [78]
    Although the Appellant may not have received answers to her queries or has not been satisfied with certain responses, those factors do not constitute an "exceptional circumstance".

Other matters

  1. [79]
    The Appellant also made a series of other arguments in her submissions. 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.[20]

  1. [80]
    I similarly conclude that the remaining matters raised by the Appellant evince her 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 other circumstances relevant to this matter.

Conclusion

  1. [81]
    The Appellant presented various reasons for why she contends her exemption application should have been accepted and why the refusal was not fair or reasonable. I have considered those submissions and conclude that the reasons for refusal were reasonably justified on the evidence before the decision-maker.
  1. [82]
    The Decision set out evidence in support of the ultimate conclusion to refuse the Appellant's exemption request.
  1. [83]
    I am satisfied the Decision included intelligible justification following consideration of relevant matters.
  1. [84]
    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, 4 April 2022, 1.

[2] Respondent's Submissions, 22 April 2022, [4].

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

[4] Respondent's Submissions, 22 April 2022, [9].

[5] Ibid [11].

[6] Ibid [12].

[7] Ibid [13].

[8] Ibid [14].

[9] [2019] QSC 170, [207]-[210], citing Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, [63]-[76].

[10] Letter from Mr J. Hammond to the Appellant, 25 March 2022.

[11] [2022] QIRC 037, 11 [47].

[12] [2021] QIRC 414, [54].

[13] Ibid.

[14] [2022] QIRC 002.

[15] [2022] QIRC 226.

[16] 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.

[17] 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]. 

[18] [2021] NSWSC 1320.

[19] [2022] QIRC 030, 14.

[20] [2022] QIRC 002.

Close

Editorial Notes

  • Published Case Name:

    Brown v State of Queensland (Queensland Ambulance Service)

  • Shortened Case Name:

    Brown v State of Queensland (Queensland Ambulance Service)

  • MNC:

    [2022] QIRC 312

  • Court:

    QIRC

  • Judge(s):

    McLennan 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
Bloxham v State of Queensland (Queensland Police Service) [2022] QIRC 37
2 citations
Jump To
Cite 1 - [2022] QIRC 37
Cite 2 - [2022] QIRC 37
Brasell-Dellow v State of Queensland, (Queensland Police Service) [2021] QIRC 356
2 citations
Jump To
Cite 1 - [2021] QIRC 356
Cite 2 - [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
2 citations
Jump To
Cite 1 - [2021] QIRC 414
Cite 2 - [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
Smith v State of Queensland (Department of Environment and Science) [2022] QIRC 4001 citation
1

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