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  4. Fawcett v State of Queensland (Queensland Ambulance Service) No 2 - [2022] QIRC 314

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Fawcett v State of Queensland (Queensland Ambulance Service) No 2[2022] QIRC 314

Fawcett v State of Queensland (Queensland Ambulance Service) No 2[2022] QIRC 314

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Fawcett v State of Queensland (Queensland Ambulance Service) No 2 [2022] QIRC 314

PARTIES:

Fawcett, Philip

(Appellant)

v

State of Queensland (Queensland Ambulance Service)

(Respondent)

CASE NO:

PSA/2022/425

PROCEEDING:

Public Service Appeal – Appeal against a fair treatment decision 

DELIVERED ON:

11 August 2022

MEMBER:

Hartigan IC

HEARD AT:

On the papers

ORDER:

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

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL –  where applicant employed as an advanced care paramedic in the Queensland Ambulance Service ('QAS') – where QAS issued direction on 13 September 2021 and a further direction on 31 January 2022 requiring certain employees to receive a first dose and a second dose of a COVID-19 vaccine by 27 February 2022 unless the employee has a valid exemption – where applicant applied for exemption from complying with requirement to be vaccinated – where respondent rejected applicant's exemption application and directed applicant to receive a COVID-19 vaccine within seven days and provide confirmation of vaccination – where applicant appealed against decision to refuse exemption application and direction to receive a COVID-19 vaccine – where decision imposed is fair and reasonable – decision appealed against is confirmed

LEGISLATION:

Ambulance Service Act 1911 (Qld), s 41

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

Public Service Act 2008 (Qld), s 194

QAS Human Resource Procedure – COVID-19 Vaccination Requirements, cl 1, cl 2, cl 3, cl 5

CASES:

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).

Reasons for Decision

Introduction

  1. [1]
    Mr Philip Fawcett is employed by the State of Queensland (Queensland Ambulance Service) ('QAS'), in the position of Advanced Care Paramedic.
  1. [2]
    On 13 September 2021, the QAS issued the Code of Practice and the QAS Human Resource Procedure – COVID-19 Vaccination Requirements ('the QAS HR Procedure’), which required all existing and prospective QAS employees who fall within certain high-risk groups to be vaccinated against COVID-19, unless the employee has a valid exemption. Relevantly, Mr Fawcett's employment as an Advanced Care Paramedic falls within a high-risk group of QAS employees that are required to be vaccinated against COVID-19.
  1. [3]
    The QAS HR Procedure provides that existing employee who fall within the high-risk groups must have received the first dose of a COVID-19 vaccine by 30 September 2021 and a second dose of a COVID-19 vaccine by 31 October 2021, unless the employee has a valid exemption.
  1. [4]
    On 29 September 2021, Mr Fawcett applied for an exemption to the mandatory vaccine requirements, on the basis of 'other exceptional circumstances'. Mr Fawcett attached two letters from Kennedy Spanner Lawyers dated 27 and 29 September 2021 in support of the application. These letters detailed concerns regarding the risk associated with COVID-19 vaccinations generally, the lack of risks assessment and consultation and concerns regarding the impact of human rights.
  1. [5]
    On 31 January 2022, the QAS HR Procedure was replaced by the QAS HR Policy - Employee COVID-19 Vaccination Requirements ('the QAS HR Policy'). After the implementation of the QAS HR Policy, the QAS wrote to Mr Fawcett providing him an opportunity to provide any further submissions or material to support his application.
  1. [6]
    On 4 February 2022, Mr Fawcett provided further documentation to the QAS in support of his application, this included, what Mr Fawcett described as a list of 'peer reviewed studies linking covid vaccines to various adverse effects'.
  1. [7]
    By letter dated 17 February 2022, the QAS determined to refuse Mr Fawcett's exemption application. On 1 March 2022, Mr Fawcett requested an internal review of the decision stating that the QAS did not provide a risk assessment and referred to the 'massive amount of evidence emerging regarding the very real and serious adverse side effects from the experimental Covid-19 vaccines'. Mr Fawcett also put a proposal to the QAS which included that he would undergo a blood screen at his own expense, and if antibodies could be detected on the blood screen there would be no need for Mr Fawcett to be vaccinated.
  1. [8]
    By letter dated 23 March 2022, the QAS advised Mr Fawcett that it had confirmed the decision dated 17 February 2022 and that his application for exemption from compliance with the QAS HR Policy on the basis of other exceptional circumstances had been denied ('the decision'). The QAS directed Mr Fawcett to receive the required dose of a COVID-19 vaccine and provide written confirmation that he had received the required dose within seven days of receipt of the decision ('the direction'). The QAS further advised Mr Fawcett that should he fail to follow the direction, he may be liable for disciplinary action pursuant to s 18A of the Ambulance Service Act 1991 (Qld) ('the Ambulance Service Act')
  1. [9]
    On 8 April 2022, Mr Fawcett appealed the decision of the QAS and relies on the following grounds in support of his appeal, as relevantly summarised:
  1. (a)
    the COVID-19 vaccines cannot be considered safe having regard to the lack of studies about the long-term effects of the vaccine, and there are numerous studies emerging regarding the multiple and serious side effects associated with the vaccines;
  1. (b)
    the COVID-19 vaccines can hardly be considered effective noting the ongoing boosters, high infection and hospitalisation rate;
  1. (c)
    Mr Fawcett has offered to demonstrate that he can maintain naturally acquired markers for immunity via routine serology testing and that the naturally acquired immunity is as effective as vaccination;
  1. (d)
    Mr Fawcett contends that he is currently under direct threat of disciplinary action and presumably retrenchment, this constitutes undue pressure, coercions and manipulation and renders the direction to get the vaccination illegal. Mr Fawcett refers to the 'criteria for valid consent' in the Australian Immunisation Handbook in this regard and notes that he was not consulted about the possibility of a human resource policy change which would jeopardise his employment;
  1. (e)
    in the decision, the decision maker does not cite any evidence regarding the safety and efficacy of the vaccines and ignores the evidence provide by Mr Fawcett; and
  1. (f)
    due to Mr Fawcett's personal circumstances, he can not afford to take an experimental vaccine or lose his employment and the decision maker has not take this into account in its decision.
  1. [10]
    The appeal is made pursuant to s 197 of 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 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.[1] 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.[2] 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.[3]
  1. [13]
    For the reasons contained herein, I have found that the decision was fair and reasonable.

The decision

  1. [14]
    In the decision, the decision maker ultimately determined that the decision made by the delegate was fair and reasonable in all of the circumstances and that Mr Fawcett's request for exemption from compliance with the QAS HR Policy was correctly refused.
  1. [15]
    The decision maker provided the following reasons in support of its decision:

Considerations

Your exemption application which was considered by Mr Clarke was made on the grounds of 'another exceptional circumstance'. My consideration of the grounds raised by you in your internal review request are outlined below.

I note the following concerns raised by you in your original exemption request were addressed by Mr Clarke in the exemption outcome letter dated 17 February 2022:

  • concerns regarding risk and consultation;
  • concerns regarding the safety of COVID-19 vaccines; and
  • concerns regarding your ability to provide free and informed consent.

Many of the matters you have raised in your internal review request cover the same concerns raised in your exemption application which have been addressed by Mr Clarke. I am satisfied that Mr Clarke has appropriately considered the concerns that you have raised around these issues and having reviewed the material, I concur with his assessment.

I note that many of your concerns relate to your views around the safety of COVID-19 vaccines. Please be advised that COVID-19 vaccines 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 (TGA). The vaccines are now in routine clinical use to prevent disease and serious illness. Evidence from around the world demonstrates that the COVID-19 vaccine is safe and has a very high level of efficacy.

Given that Queensland is transitioning to an environment where COVID-19 is endemic, it js inevitable that every Queenslander will eventually be exposed to COVID-19. Safe and effective vaccines for COVID-19 that prevent severe illness are now widely available and endorsed by regulatory authorities globally, including Australia's TGA. High vaccination coverage among workers in settings with the potential for exposure to COVID-19, particularly those serving vulnerable cohorts, wilt be a key determinant of health outcomes for Queenslanders and the impact of COVID-19 on health care delivery across the State.

I reaffirm it is the position of the QAS that there are no less restrictive means other than vaccination (including in conjunction with other risk control measures) which are open to the organisation to keep you, your colleagues, and persons accessing healthcare safe.

In the broader context of your role and taking into account the ongoing risks associated with the operating environment of the QAS impacted by COVID-19, I do not consider that the grounds contained in your exemption application or internal review request constitute sufficient rationale to justify an exemption from the requirement for vaccination when having regard for the exemption framework provided or the obligations of the QAS as an employer under the Work Health and Safety Act 2011.

In your internal review request, you have also raised that natural immunity should negate the requirement for vaccination against COVID-19 and have proposed to undergo regular serology screening for COVID-19 antibodies.

Please be advised that past SARS-CoV-2 infection is not considered a contraindication to vaccination. Individuals who have had COVID-19 are advised to receive the same number of COVID-19 vaccine doses as people who have never been infected.

It is also the recommendation from ATAGI that people with SARS-CoV-2 infection can be vaccinated when they have recovered from their confirmed infection or can defer for up to 4 months after the onset of the infection (with or without symptoms). Commencement or continuation of further vaccination should not be deferred for more than four months.

It is also the advice of ATAGI that people who have prolonged symptoms of COVID-19 can still be vaccinated but the optimal timing should be determined on a case-by-case basis in consultation with their healthcare provider.

Individuals are encouraged to consider vaccination soon after infection and recovery if they:

  • Have a risk factor that puts them at high risk of severe disease from COVID 19
  • Have a higher risk of being exposed to COVID-19 (e.g. occupational risk factor)
  • Have not completed a COVID-19 vaccination primary course
  • Are unsure if they have had an infection with SARS-CoV-2.

Accordingly, while I acknowledge your submissions, the health advice is that people who have had COVID-19 should receive the same number of COVID-19 vaccine doses as people who have never been infected. The QAS accepts this advice from ATAGI and by virtue of the risk factors identified in the QAS HR Policy, is of the view that vaccination remains a requirement of your role and is not considered grounds for an exemption from this requirement.

  1. [16]
    The decision maker also considered the effects of the decision of Mr Fawcett's human rights as follows:

Human Rights considerations

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, 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 QAS'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.

Relevant legislation and Policy

  1. [17]
    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 –

(eb) a decision a public service employee believes is unfair and unreasonable (a fair treatment decision)

  1. [18]
    Section 41 of the Ambulance Service Act provides for the issuing of codes of practice and is in the following terms:

41 Codes of practice

  1. (1)
    The commissioner may issue codes of practice, not inconsistent with this Act, relating to—
  1. (a)
    the functions, powers, conduct, discipline and appearance of service officers; and
  2. (b)
    the performance of duties and the training of service officers; and
  3. (c)
    any functions imposed or powers conferred by this Act.
  1. (2)
    The commissioner may amend or revoke a code of practice.
  2. (3)
    Wilful failure to comply with a code of practice is grounds for disciplinary action.
  1. [19]
    The QAS HR Policy sets out the mandatory vaccination requirements for all current and prospective employees working for the QAS.
  1. [20]
    Clause 1 of the Directive 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. [21]
    Clause 2 of the QAS HR Policy includes a table[4] which separates QAS employees into a group number based on their employee cohort. Relevantly, Mr Fawcett falls within one of the employee group numbers.
  1. [22]
    Clause 3 of the QAS HR 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. [23]
    Clause 5 of the QAS HR 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 was fair and reasonable

  1. [24]
    As noted above, the role of the Commission in an appeal such as this, is to conduct a review of the decision to determine if it is fair and reasonable.
  1. [25]
    Mr Fawcett's written submissions[5] are largely in the same terms as the written submissions that were attached to his appeal notice. Mr Fawcett, in his written submissions, contends that he has serology test results which 'indicate previous infection and consequently proof of immunity'.
  1. [26]
    Mr Fawcett's submissions in relation to the appeal have been categorised as follows:
  1. (a)
    safety and efficacy;
  1. (b)
    consent;
  1. (c)
    evidence; and
  1. (d)
    personal circumstances.
  1. [27]
    The QAS submits that the decision to confirm the refusal of Mr Fawcett's exemption application was fair and reasonable. In this regard, the QAS contend that the QAS HR Policy is based on the Chief Health Officer's ('CHO's) direction regarding health care settings and entry into hospitals and that Mr Fawcett is captured by the CHO direction on the basis that he is a healthcare worker.
  1. [28]
    I will consider the appeal within the categories as set out above.

Safety and efficacy

  1. [29]
    The appeal notice and written submissions filed by Mr Fawcett clearly indicate that Mr Fawcett has concerns about the long-term effects and safety of the COVID-19 vaccines. Mr Fawcett submits that there are numerous studies regarding the emerging and serious adverse effects of the vaccine.
  1. [30]
    The decision maker notes that many of Mr Fawcett's concerns relate to the safety of the COVID-19 vaccines and notes that the COVID-19 vaccines has gone through the usual assessments, including phase one, two and three trials and reviews by multiple licensing bodies including the Therapeutic Goods Administration and are in routine clinical use.
  1. [31]
    It is clear from Mr Fawcett's submissions in relation to this appeal that he is hesitant to be administered one of the COVID-19 vaccines due to his concerns regarding the safety and efficacy of the vaccines. Mr Fawcett has cited purported information contained in a number of 'studies' in support of his submissions.
  1. [32]
    Vaccine hesitancy does not constitute a ground of exceptional circumstances that would support an exemption application. Whilst Mr Fawcett is entitled to hold the view he does in relation to the safety and efficacy of the COVID-19 vaccines, it is not incumbent on the QAS to accept Mr Fawcett's view.[6]
  1. [33]
    In this regard, the QAS has had regard to the fact the COVID-19 vaccinations have been approved by the TGA and ATAGI. Given the regulatory role of the TGA and ATAGI, I consider it fair and reasonable for the QAS to rely on the TGA's approval of the vaccines to support its conclusions that the vaccines are safe and effective. Mr Fawcett submits that his natural immunity and proposed willingness for serology testing could be relied on to permit him to return to work. The decision maker responded to this submission in the decision and concluded that past COVID-19 infection is not considered a contraindication to vaccination and individuals who have previously been infected are still required to be administered COVID-19 vaccines. Further, the decision maker found that there are no less restrictive means other than vaccination which are open to the QAS to keep QAS employees and persons accessing healthcare safe.
  1. [34]
    Neither the QAS HR Policy nor the CHO direction permit serology testing results as an alternative to being vaccinated nor do they permit the provision of a negative COVID-19 test as a basis for an exemption.
  1. [35]
    I consider that it was open, on the material available to the decision maker, to determine that Mr Fawcett's alternative proposal was not a means by which he could avoid compliance with the QAS HR Policy. In the circumstances, I consider it fair and reasonable that the decision maker determined that such a proposal did not constitute another exceptional circumstance which would warrant an exemption from compliance from the QAS HR Policy.

Consent

  1. [36]
    Mr Fawcett contends that he has been subjected to undue pressure, coercion and manipulation in respect to giving consent to receive the COVID-19 vaccine and that this renders the QAS HR Policy invalid and illegal. Mr Fawcett further contends that he was not consulted about a policy change that would jeopardise his employment and that he has not seen a risk assessment for the COVID-19 vaccines.
  1. [37]
    The QAS denies Mr Fawcett's contention that he has been the subject of undue pressure, coercion and manipulation in receiving the COVID-19 vaccine. The QAS submit that Mr Fawcett has not been deprived of free and informed consent, nor has he been threatened against his will to receive the vaccine. The QAS submit that Mr Fawcett remains free not to consent to receiving a COVID-19 vaccine, however, a consequence of this choice is that Mr Fawcett cannot perform his duties as an Advanced Care Paramedic. The QAS relies on Kassam v Hazzard; Henry v Hazzard[7] in this regard.
  1. [38]
    Mr Fawcett has not consented to receiving the vaccine and accordingly, he has not been administered the vaccine. He has exercised his choice not to be vaccinated and there is no evidence before me that he has been denied that opportunity. However, in exercising that choice Mr Fawcett has also chosen to not comply with his employer's direction. There are potential consequences that may follow the exercise of that choice including the commencement of disciplinary processes due to his failure to comply with the QAS HR Policy. That is no different to any other circumstances in which an employee chooses to, or to not comply with a lawful and reasonable request of their employer. Accordingly, there is no evidence before me that Mr Fawcett was subjected to undue pressure, coercion or manipulation in respect to giving consent to receive the COVID-19 vaccine and, relevantly, Mr Fawcett has not consented to being administered the COVID-19 vaccine. 
  1. [39]
    The QAS contend that it complied with its obligations under the Work Health and Safety Act 2011 (Qld) (the 'WHS Act') to consult with employees and with registered unions in relation to the introduction of the vaccine mandate. This consultation included dedicated meetings with the registered unions representing employees and employees who are eligible to be union members.
  1. [40]
    The QAS further contend that there is no lawful basis upon which Mr Fawcett can request a risk assessment undertaken by the QAS in relation to vaccines, and further, that the Therapeutic Goods Administration has approved the COVID-19 vaccine for use, that this is a matter of public record and that the QAS was not required to conduct its own risk assessment in relation to the COVID-19 vaccines, nor was it required to provide
    Mr Fawcett with such a risk assessment.
  1. [41]
    I am satisfied on the material relied on in this matter that appropriate consultation and risk assessments with respect to QAS' obligation under the WHS Act occurred. There was no requirement, in the circumstances of this matter, that Mr Fawcett be personally consulted in circumstances where organisation consultation occurred.
  1. [42]
    I do not consider that Mr Fawcett's submissions in relation to consent has established the decision was not fair and reasonable. 

Evidence

  1. [43]
    Mr Fawcett submits that the decision maker has disregarded the studies he provided in his exemption application and further submits that there is no credible evidence in support of the decision maker's statement in relation to COVID-19 transitioning to 'endemic'.
  1. [44]
    It is unclear from Mr Fawcett's submission, how the decision maker's statement in relation to COVID-19 transitioning to 'endemic' and the alleged lack of evidence to support the statement renders the decision as not fair and reasonable. This is particularly in circumstances where the decision is in relation to the refusal of Mr Fawcett's application for an exemption from compliance with the QAS HR Policy on the grounds of other exceptional circumstances. Further, Mr Fawcett argues that the decision maker did not have regard to the studies he submitted in support of his exemption application.
  1. [45]
    In the decision, the decision maker sets out a non-exhaustive list of the matters taken into consideration when determining the exemption application, relevantly, this included documents attached to Mr Fawcett's exemption application, including, 'a document titled Peer Reviewed Medical Papers Submitted to Various Medical Journals, Evidencing A Multitude of Adverse Events in Covid-19 Vaccine Recipients'. The decision maker determined that the grounds contained within Mr Fawcett's exemption application do not constitute a sufficient rationale to justify an exemption from the QAS HR Policy.
  1. [46]
    It is clear that the decision maker did in fact have regard to the studies provided in Mr Fawcett's exemption application, however ultimately determined that the grounds did not support a valid exemption. Further, I do not consider that a consideration of whether COVID-19 is transitioning to 'endemic' is relevant to a determination of whether the grounds nominated by Mr Fawcett's in his exemption application support a valid exemption.
  1. [47]
    I am satisfied that the decision maker had regard to the material referred to by Mr Fawcett and placed appropriate weight on the consideration of that material. The fact that Mr Fawcett has identified articles of ranging credibility to support his view with respect to the efficacy of the COVID-19 vaccines does not constitute a basis upon which it could be argued that because the decision maker placed little weight on those articles, that the decision was not fair and reasonable. It was not encumbent upon the decision maker to accept Mr Fawcett's argument simply because Mr Fawcett has found commentary on the internet which he says supports his position.
  1. [48]
    Further, it was open on the material for the decision maker to conclude that Mr Fawcett did not furnish any evidence to support his request for an exemption. Accordingly, I do not consider that Mr Fawcett's submissions with respect to evidence establish that the decision is not fair and reasonable.

Personal circumstances

  1. [49]
    Mr Fawcett submits that the decision maker did not have regard to his individual circumstances, namely, that he is a single father of two young children and can not risk his health by being administered an experimental vaccine, and, that he can not afford to lose his career.
  1. [50]
    As noted above, the decision maker set out a non-exhaustive list of matters it considered when determining the exemption application. Relevantly, this included details regarding Mr Fawcett's 'family situation'. The decision maker made the following finding as set out in the decision:

In the broader context of your role and taking into account the ongoing risks associated with the operating environment of the QAS impacted by COVID-19, I do not consider that the grounds contained in your exemption application or internal review request constitute sufficient rationale to justify an exemption from the requirement for vaccination when having regard for the exemption framework provided or the obligations of the QAS as an employer under the Work Health and Safety Act 2011.

  1. [51]
    Accordingly, I am satisfied that the decision maker did have regard to Mr Fawcett's individual circumstances. Further I am satisfied it was open for the decision maker to ultimately conclude that the grounds proffered by Mr Fawcett did not constitute a sufficient rationale to justify an exemption.

Other matters raised by the Appellant

  1. [52]
    For completeness, I note Mr Fawcett raises a matter in his submissions in reply[8] which could be inferred as alleging a lack of procedural fairness.
  1. [53]
    Mr Fawcett submits that the QAS Human Resource Procedure – COVID-19 Vaccination Requirements ('the QAS HR Procedure') was replaced by the QAS HR Policy after he submitted his exemption application, which indicates that the 'change was made to close the gate on any exceptional circumstances that might be argued by an employee seeking an exemption'.
  1. [54]
    A review of the material filed in this matter confirms that the QAS HR Procedure was replaced by the QAS HR Policy on 31 January 2022, during the internal review process of Mr Fawcett's exemption application. The QAS wrote to Mr Fawcett and provided him with three options in relation to how he would like to progress his review, having regard to the newly implemented QAS HR Policy. By reply email dated 4 February 2022, Mr Fawcett determined to continue with the exemption application, which was to be determined under the Policy and elected to provide additional information which was to be included in his response. Mr Fawcett attached the additional material to the reply email.
  1. [55]
    I consider that Mr Fawcett was provided with an opportunity to provide any additional information he considered to be relevant to the newly implemented QAS HR Policy, and indeed did provide information which was considered by the decision maker in the decision.
  1. [56]
    Accordingly, I do not consider that Mr Fawcett has suffered any prejudice as a result of the change from the QAS HR Procedure to the QAS HR Policy during the internal review process.

Conclusion

  1. [57]
    For the foregoing reasons, I dismiss the appeal and confirm the decision subject to the appeal.

Order

  1. [58]
    Accordingly, I make the following order:

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

Footnotes

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

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

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

[4] Table 1.

[5] Filed on 30 May 2022.

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

[7] [2021] NSWSC 1320, [63].

[8] Filed on 14 June 2022.

Close

Editorial Notes

  • Published Case Name:

    Fawcett v State of Queensland (Queensland Ambulance Service) No 2

  • Shortened Case Name:

    Fawcett v State of Queensland (Queensland Ambulance Service) No 2

  • MNC:

    [2022] QIRC 314

  • Court:

    QIRC

  • Judge(s):

    Hartigan IC

  • Date:

    11 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
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
2 citations
Jump To
Cite 1 - [2018] QSC 319
Cite 2 - [2018] QSC 319
Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320
1 citation
Jump To
Cite 1 - [2021] NSWSC 1320

Cases Citing

Case NameFull CitationFrequency
Glen v State of Queensland (Queensland Ambulance Service) [2023] QIRC 3582 citations
1

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