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  4. Batchelor v State of Queensland (Queensland Ambulance Service) - [2022] QIRC 336

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Batchelor v State of Queensland (Queensland Ambulance Service)[2022] QIRC 336

Batchelor v State of Queensland (Queensland Ambulance Service)[2022] QIRC 336

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Batchelor v State of Queensland (Queensland Ambulance Service) [2022] QIRC 336

PARTIES: 

Batchelor, Phebe Edna

(Appellant)

v

State of Queensland (Queensland Ambulance Service)

(Respondent)

CASE NO.:

PSA/2022/552

PROCEEDING:

Public Service Appeal – Fair Treatment Decision

DELIVERED ON:

29 August 2022

MEMBER:

Power 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 – appellant sought an exemption to COVID-19 vaccination requirements of the QAS Human Resources Policy – Employee COVID-19 Vaccination Requirements – exemption was refused – decision to deny exemption fair and reasonable

LEGISLATION:

Industrial Relations Act 2016 (Qld), ss 562B and 562C

Public Service Act 2008 (Qld), s 194

CASES:

Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245

Clark v State of Queensland (Queensland Health) [2022] QIRC 170

Gilmour v Waddell & Ors [2019] QSC 170

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

Reasons for Decision

Introduction

  1. [1]
    Mrs Phebe Edna Batchelor ('the Appellant') is employed by the State of Queensland (Queensland Ambulance Service) ('QAS'; 'the Respondent') as an Advanced Care Paramedic.
  1. [2]
    On 13 September 2021, the QAS Human Resource Procedure – COVID-19 Vaccine Requirements ('the Procedure') was published, with the effective date of 12 October 2021. The Procedure required all existing and prospective employees who fall within a 'high risk group'[1] to receive 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. The Procedure provides that vaccination requirements detailed within the Procedure are a mandatory condition of employment.
  1. [3]
    The Procedure provides an exemption application will be considered where the employee has a recognised medical contraindication, the employee has a genuinely held religious belief and/or where another exceptional circumstance exists.[2]
  1. [4]
    On 30 September 2021, the Appellant submitted an 'Employee COVID-19 vaccine exemption application form' (the 'exemption application'), seeking for an exemption from obtaining any COVID-19 vaccination identifying a 'recognised medical contraindication' in accordance with the Procedure. The Appellant provided a letter from Dr Robert Hensen, Consultant Haematologist dated 11 October 2021 in support of the exemption application.
  1. [5]
    On 31 January 2022, the Procedure was replaced by the QAS Human Resources Policy – Employee COVID-19 Vaccination Requirements ('the Policy'), which required that all existing employees must have received the first and second dose of a COVID-19 vaccine by 27 February 2022. The Policy outlines that the mandatory requirement to be vaccinated against COVID-19 applies to all existing and prospective employees who work in the following cohorts within QAS:
  1. (a)
    all QAS employees working in or providing services to residential aged care facilities and residential aged care within a multipurpose health service;
  1. (b)
    all QAS employees who are employed to work in a hospital or other healthcare setting where clinical care or support is provided; and
  1. (c)
    all other QAS employees who are employed in roles that require attendance at a hospital or other facility where clinical care or support is provided.
  1. [6]
    The Policy provides for the same circumstances as the Procedure upon which an exemption to the vaccination requirements could be sought.
  1. [7]
    On 1 February 2022, the Respondent informed the Appellant of the Policy which replaced the Procedure. As the exemption application had yet to be decided, the Appellant was provided with the opportunity to, inter alia, provide any further information in support of the exemption application. On 7 February 2022, the Appellant advised that she wished to provide additional information.
  1. [8]
    On 8 March 2022, Mr Ray Clarke, Executive Director, Workforce, advised the Appellant that her exemption application had been refused. The Appellant was directed to comply with the Policy to receive the first dose and provide confirmation of compliance within seven days from receipt of the letter.
  1. [9]
    On 21 March 2022, the Appellant requested an internal review of the decision to refuse the Appellant's exemption application.
  1. [10]
    On 13 April 2022, Acting Assistant Commissioner John Hammond, Strategic Operations, confirmed the decision to refuse the Appellant's exemption application.
  1. [11]
    On 4 May 2022, the Appellant filed an appeal notice, appealing against the decision of A/AC Hammond dated 13 April 2022, pursuant to s 194(1)(eb) of the Public Service Act 2008 (Qld).

Appeal principles

  1. [12]
    The appeal must be decided by reviewing the decision appealed against.[3] Because the word 'review' has no settled meaning, it must take its meaning from the context in which it appears.[4] An appeal under ch 11 pt 6 div 4 of the Industrial Relations Act 2016 (Qld) ('the IR Act') is not by way of rehearing,[5] but involves a review of the decision arrived at and the decision making process associated therewith.
  1. [13]
    The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.[6] The issue for determination is whether the decision of A/AC Hammond dated 13 April 2022 to confirm the decision to refuse the Appellant's exemption application was fair and reasonable. Findings which are reasonably open to the decision maker are not expected to be disturbed on appeal.

What decisions can the Industrial Commissioner make?

  1. [14]
    In deciding this appeal, s 562C of the IR Act provides that the Industrial Commissioner may:
  1. (a)
    confirm the decision appealed against; or
  1. (b)
    set the decision aside and substitute another decision; or
  1. (c)
    set the decision aside and return the issue to the decision maker with a copy of the decision on appeal and any directions considered appropriate.

Grounds of Appeal

  1. [15]
    The Appellant, in the appeal notice, appeals the decision based on medical and religious grounds. The Appellant contends that the decision to confirm the refusal of the exemption application is unfair and unreasonable, in that:
  1. (a)
    the Appellant has a medical history of autoimmune conditions and whilst the Respondent acknowledges the Appellant's concerns regarding the significant risks of vaccination which exacerbates autoimmune conditions, there was no acknowledgment of the risk the vaccination posed to the Appellant;
  1. (b)
    the Appellant currently has a temporary medical exemption with the Australian Immunisation Register ('AIR') due to having recovered from COVID-19 which the Respondent has disregarded;
  1. (c)
    the Respondent's concern of any risk that the Appellant potentially poses to other colleagues, patients and the general community by being unvaccinated is 'purely theoretical' as there is growing scientific evidence around immunity after recovery from COVID-19; and
  1. (d)
    it is unlikely that the Appellant will contract COVID-19 again and consequently cannot spread COVID-19.

Submissions

  1. [16]
    The Commission issued a Directions Order calling for submissions from both parties following receipt of the appeal notice. The submissions are summarised below.

Appellant's submissions

  1. [17]
    In support of her appeal, the Appellant submits, in summary, that:
  1. (a)
    the Appellant has sought further explanation and clarity as to the information required regarding a medical exemption and have received no specific or meaningful responses;
  1. (b)
    the Appellant has a genuine, significant and complex medical history that is evolving and is being investigated for an autoimmune disease with the Appellant's general practitioner and specialists continuing to assess the Appellant's medical situation;
  1. (c)
    the Respondent has refused to recognise the Appellant's immunity to COVID-19 due to a previous COVID-19 infection on the grounds the Australian Technical Advisory Group on Immunisation ('ATAGI') guidelines stated that vaccination could be done as soon as the patient had recovered from the infection. However, that specific ATAGI guideline has since been changed;
  1. (d)
    the Appellant did not initially apply for a religious exemption given the insult of the request for 'proof' of the Appellant's belief as well as significant fear of retribution or being treated differently. The Appellant have only included religious beliefs as the Appellant's medical exemption has been disregarded;
  1. (e)
    the Appellant has a religious objection to the use of aborted foetal cells in the research, manufacture and testing of the COVID-19 vaccinations and the Appellant has an obligation to not participate at this time;
  1. (f)
    the Appellant has attempted to seek alternative work arrangements and requested to be returned to 'safe duties' in a communication centre while the Appellant was pregnant during the pandemic in 2020, where the role the Appellant was acting in was entirely remote. However, this request has been refused;
  1. (g)
    the administrative changes to the Appellant's employment condition have resulted in significant effects on the Appellant's employment and as such, should be managed under the QAS Displaced Tenured Employees HR Procedure;
  1. (h)
    natural justice has not been afforded as the assessment has been subject to bias and prejudice;
  1. (i)
    the exemption process has not been open and transparent to the staff that have been affected by it;
  1. (j)
    there has been inconsistency in relation to people being given 'alternate duties' to work from home and some staff were given work while others were advised that there was no work available;
  1. (k)
    the Appellant's personal vaccination status and that of other staff has been shared without justification or consent on multiple occasions;
  1. (l)
    the Appellant has not received any unsolicited contact from her officer in charge or any QAS management to enquire on the Appellant's welfare or to check on the progress of the exemption application;
  1. (m)
    no information or policy has been provided or is available in relation to future employment or relocation prospects for staff with an approved exemption; and
  1. (n)
    there have been no exemptions to COVID-19 vaccinations approved by the Respondent to date.

Respondent's submissions

  1. [18]
    The Respondent submits that the decision to confirm the refusal of the Appellant's exemption application was fair and reasonable. In support, the Respondent submits, in summary, that:
  1. (a)
    the letter from Dr Hensen dated 11 October 2021 did not report that the Appellant had a medical contraindication precluding her from safely receiving a COVID-19 vaccine;
  1. (b)
    the Appellant did not provide any evidence in support of her advice that she had been given a medical exemption due to having natural immunity;
  1. (c)
    A/AC Hammond carefully considered the Appellant's submissions and weighed these against the objects and requirements of the Policy;
  1. (d)
    the Appellant did not demonstrate any exceptional or extenuating circumstances relating to her as an individual that justified the granting of an exemption;
  1. (e)
    on the Appellant's own evidence, the Appellant's general practitioner and specialist were unable to provide her with a permanent medical exemption;
  1. (f)
    the Appellant did not provide any evidence of a medical condition which precluded her from being able to be safely administered the current COVID-19 vaccines prior to Mr Clarke's decision;
  1. (g)
    the Appellant's immunisation statement was not provided until after Mr Clarke made his decision and did not specify that she was completely unable to receive a COVID-19 vaccine indefinitely. Further, the Appellant has not explained why she did not provide a copy of the immunisation statement prior to the decision of Mr Clarke and in the absence of such evidence, it was fair and reasonable for Mr Clarke to refuse the exemption application. It was therefore fair and reasonable for A/AC Hammond to confirm Mr Clarke's decision;
  1. (h)
    while the Appellant's medical contraindication expired on 3 June 2022, if the matter was referred back to a new decision maker after that date, it is likely the same decision would be made;
  1. (i)
    the Appellant did not apply for an exemption on the basis of her religious beliefs and only raised these issues in her request for an internal review and in her submissions;
  1. (j)
    the letter from Reverend George Ayoub, Casino Presbyterian Church provided with the Appellant's submissions does not state that the Church is against COVID-19 vaccination;
  1. (k)
    the Appellant clearly holds a particular view regarding COVID-19 vaccines, however a public service appeal is not the forum for a debate about the merits of the science behind vaccines or public health policy to address the pandemic;
  1. (l)
    while the Appellant is entitled to hold views regarding the safety and efficacy of COVID-19 vaccines, it is not incumbent on the Respondent to accept her views, particularly noting the weight of medical and scientific evidence is against her;
  1. (m)
    it is not possible for the Appellant to be provided alternative work arrangements and the Respondent is not entitled to undertake a state-wide search of the public service to find another role for the Appellant. Further, temporary alternative arrangements are not a reasonable excuse for failing to comply with the Policy; and
  1. (n)
    the Appellant's human rights were taken into account throughout the exemption application process and A/AC Hammond determined any limitation to the Appellant's human rights was justified by the need to ensure the readiness of the health system in responding to the COVID-19 pandemic, and to protect the lives of employees, patients and the community.
  1. [19]
    The Respondent submits that, as the Chief Health Officer ('CHO') is the most senior medical officer in Queensland, the Policy is both lawful and reasonable and that once the CHO Direction relating to Workers in a healthcare setting (COVID-19 Vaccination requirements) was made, it was reasonable for the Respondent to determine and implement the Procedure and subsequent Policy to ensure compliance with the CHO Direction and to meet its duty of care to staff, patients and the public.
  1. [20]
    The Respondent made the following submissions regarding risk assessment and consultation:

… QAS employees have access to information in respect to safety and efficacy of vaccination. QAS is part of the Department of Health. The Department complied with its obligations under the Work Health and Safety Act 2011 to consult with employees and with registered unions representing employees in relation to the introduction of the vaccine mandate. The consultation included dedicated meetings with registered unions representing employees employed within the Department. The Work Health and Safety Act 2011 imposes a duty to consult so far as is reasonably practicable. What is reasonably practicable will depend on the individual circumstances, including the number of the workforce. Registered unions may negotiate with employers, not only on behalf of their members, but also on behalf of workers who are eligible for membership. Where registered unions agree with vaccine mandate 'consultation reached the level where the directive was not a matter of contention'.

Further, there is no lawful basis upon which Ms Batchelor can request access to a risk assessment undertaken by QAS in relation to vaccines, and proof that she is a heightened risk of transmission. The COVID-19 vaccinations have been approved by the TGA and the ATAGI. The TGA's approval of relevant vaccines is a matter of public record and is evidence of their safety and efficacy. QAS was not required to provide Ms Batchelor assurances concerning the safety or efficacy of the COVID-19 vaccines, and was not required to do its own risk assessment of the vaccines.

…

Appellant's submissions in reply

  1. [21]
    In reply, the Appellant submits, at the outset, that the Appellant has made no claims in relation to the lawfulness or reasonableness of the Policy as that is a matter before the courts.
  1. [22]
    The Appellant further submits, in summary, that:
  1. (a)
    the Appellant's medical history is both unique and 'exceptional' with risks associated to developing of life-threatening blood clots. The Appellant also has an autoimmune disease. The Appellant's haematologist attempted to reiterate this while being guarded for risk of unwanted attention from the Australian Health Practitioner Regulation Agency ('AHPRA');
  1. (b)
    the Appellant's individual circumstances were not assessed with the gravity that they should have been;
  1. (c)
    the Appellant was assured by both the acting officer in charge and the area director that the Appellant would not need to have an AIR exemption to have an approved QAS exemption;
  1. (d)
    the Appellant could have provided Mr Clarke with a copy of her immunisation statement had he simply asked for it. It was nevertheless provided to A/AC Hammond, however it was not taken into consideration;
  1. (e)
    the Respondent appears to imply that the only level of acceptable evidence would be a statement that the Appellant was 'completely unable to receive a covid-19 vaccination indefinitely';
  1. (f)
    the letter provided by Reverend Ayoub is a statement to the length of the Appellant's relationship with God and to prove her 'deeply held religious belief' and highlights that open discussion about the Appellant's faith has caused her to be the target of unwanted conflict during her life. The Respondent could not have properly considered the Appellant's religious views as they did not seek any additional information even though it was offered;
  1. (g)
    the Respondent's request or demand for a statement that the Appellant's 'church is against covid-19 vaccination' is further evidence that the Respondent did not consider the impact of the Policy on the Appellant's faith and has simply disregarded the request;
  1. (h)
    the Respondent's statement that the Appellant holds 'particular views regarding COVID-19 vaccines' implies that the Appellant is an 'anti-vaxer' and is clearly prejudicial in an attempt to discredit or devalue the Appellant's position and amounts to discrimination under freedom of political views; and
  1. (i)
    it is not unreasonable, with the Appellant's medical history, to hold reservations to the safety of many medications or medical procedures, including vaccinations.

Consideration

  1. [23]
    Consideration of an appeal of this kind requires a review of the decision by A/AC Hammond to determine if the refusal of the Appellant's exemption application was fair and reasonable in the circumstances.
  1. [24]
    The COVID-19 vaccine exemption application form provides that employees may seek an exemption to the vaccination requirements in circumstances where the employee has a recognised medical contraindication to the COVID-19 vaccine, where the employee has refused the COVID-19 on grounds of a genuinely held religious belief, or other exceptional circumstances which preclude them from meeting the COVID-19 vaccine requirements.
  1. [25]
    The Appellant applied for an exemption to the mandatory vaccine requirements on the basis that she had a 'recognised medical contraindication to the COVID-19 vaccine'. The Appellant did not request an exemption on the basis of a genuinely held religious belief in her exemption application.
  1. [26]
    The Appellant provided a letter from Dr Hensen in support of her application. In response to the Respondent providing a further opportunity to provide additional information,[7] the Appellant advised the Respondent that she had tested positive to COVID-19 during the New Year period and had been given a medical exemption due to having natural immunity. No evidence was provided to support this contention at this time.
  1. [27]
    Mr Clarke determined on 8 March 2022 that the Appellant's exemption application had been refused. The Appellant sought an internal review of Mr Clarke's decision and following the review, A/AC Hammond confirmed the decision to refuse the exemption.
  1. [28]
    The grounds of appeal outlined by the Appellant in the appeal notice can be summarised as asserting that the QAS did not consider her personal medical situation, including her temporary medical exemption, and a contention that natural immunity offers more robust protection than that offered by vaccination. The submissions filed in support of the appeal traverse broader matters beyond the scope of the appeal.
  1. [29]
    The Appellant states in the appeal notice that she has a medical history of chronic large vessel DVT, mitral valve prolapse and regurgitation and has been under investigation for an autoimmune disease, Lupus. Although the Appellant states that she was given advice by her General Practitioner and Haematologist that COVID-19 vaccination posed greater risk than benefit in her situation, no evidence was provided of this advice. The Appellant states that neither practitioner was willing to apply for an exemption on her behalf or write a letter recommending against vaccination 'for fear of possible repercussions from AHPRA and the AMA against their medical licences'. There is no evidence before me in support of this submission.
  1. [30]
    The decision by Mr Clarke considered the letter provided of Dr Hensen, noting the following excerpt:

On the question of COVID-2 vaccination the medical community is encouraging patients to get vaccinated with Pfizer/Moderna if they are in the younger age cohort (<40 years). Patients with a prior history of central venous sinus thrombosis (CVST) or abdominal venous clots, antiphospholipid Ab syndrome, prior HITTS or allergy to the AZ vaccine excipients. The rate of VITTS (vaccine-induced thrombotic thrombocytopenic syndrome) was found to occur at an incidence of ~5 per million in the UK population aged under 40 years. Pfizer has lower rates of CVST and higher risk of myopericarditis.

Against this is the considerable mortality and morbidity of COVID which can cause a high-risk clotting and bleeding disorder in severely affected patients. The risk of this occurring would be higher in young patients than the risk of vaccine side-effects and thus widespread vaccination with ongoing booster shots is the appropriate public health measure both for reducing the severity of infection in the individual and diminishing public viral transmission.

  1. [31]
    Mr Clarke reasonably determined that the letter from Dr Hensen did not suggest that the Appellant is unable to receive a COVID-19 vaccination due to a medical contraindication.
  1. [32]
    The Appellant submits that her natural immunity following contraction of COVID-19 gave rise to an exemption by the AIR that was not considered by Mr Clarke. Mr Clarke demonstrated consideration of this matter in his decision, stating:

I note that you advised in your email of 7 February 2022 that you have had a positive PCR test and have since been granted an exemption to COVID-19 vaccinations due to grounds of a medical contraindication from the Australian Immunisation Register due to natural immunity…

Past SARS-CoV-2 infection is not 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 four 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.

…

  1. [33]
    The decision by A/AC Hammond demonstrated consideration of the Appellant's personal circumstances, stating:

You have stated "I note that you have ignored my AIR exemption that states I am 'medically contraindicated' to all currently available COVID-19 vaccinations in line with current ATAGI guidelines" and "I will not at any point be consenting to COVID 19 vaccination".

As you would be aware, the notification of a medial contraindication that is provided in relation to a previous COVID-19 infection on the Australian Immunisation Register is temporary in nature. As explained by Mr Clarke, the recommendation from ATAGI is that people with previous COVID-19 infection can be vaccinated when they have recovered from their confirmed infection. This is of particular importance for individuals who perform roles such as yours, with risk factors that have been identified as requiring vaccination in accordance with the QAS HR Policy.

In the absence of evidence that you have received an anti-SARS-CoV2 monoclonal antibody treatment or convalescent plasma which would warrant a deferral of the COVID-19 vaccine, I am satisfied that Mr Clarke has appropriately considered the concerns that you have raised about this issue in his letter dated 8 March 2022 and I concur with his assessment.

  1. [34]
    The Appellant submits that she offered to provide additional information at multiple times, however she had not been contacted by the Respondent to seek additional information. The onus of providing supporting medical evidence lies with the Appellant, and there is no obligation on the Respondent to seek out further evidence on the Appellant's behalf.
  1. [35]
    The Appellant did not provide a copy of the AIR statement prior to Mr Clarke making his decision. This is perplexing given that the Appellant had become infected with COVID-19 and consequently, was contraindicated for a period of time following infection. The Appellant submits, 'I could have easily provided Mr Clarke with a copy of my AIR statement had he simply asked for it'. It seems that the Appellant has entirely misunderstood the responsibility she had to support her exemption application with evidence. Notwithstanding the lack of supporting evidence, Mr Clarke did consider the Appellant's temporary contraindication. A review of Mr Clarke's decision considers the material that was before him at the time of the decision. In those circumstances, it was open to Mr Clarke to refuse the exemption application and for A/AC Hammond to confirm that decision was fair and reasonable.
  1. [36]
    The AIR statement that was ultimately provided advised that the Appellant's contraindication expired on 3 June 2022. There is no evidence in this appeal indicating that the Appellant has any other contraindication preventing her from safely following the Policy after this date.
  1. [37]
    I am satisfied that the decision by A/AC Hammond reasonably considered the individual medical circumstances of the Appellant in confirming the decision of Mr Clarke to refuse the exemption application.
  1. [38]
    In the request for an internal review of Mr Clarke's decision, the Appellant advised that she is a person of strong Christian faith who has been actively involved in her church since childhood. The Appellant did not apply for an exemption based on the grounds of a 'genuinely held religious belief' and consequently, this submission was not considered by Mr Clarke.
  1. [39]
    The Appellant submits that the letter provided by Reverend Ayoub is a statement to the length of her relationship with God and proves her deeply held religious belief. The Appellant further submits that the Respondent did not give any thought to the impact of their direction on her faith and simply disregarded her request.
  1. [40]
    Notwithstanding the failure to nominate 'genuinely held religious belief' as a ground for exemption at the application stage, A/AC Hammond considered the Appellant's submissions regarding her religious beliefs, and stated the following:

…

Please be assured the QAS is committed to providing an inclusive and respectful workplace that respects every person's right to freedom to demonstrate a religion individually or as part of a group, whether that be in public or in private.

However, the QAS must balance these matters against the purposes of the vaccination requirement contained in the QAS HR Policy, in the current circumstances. As previously advised, the Director-General's decision to require staff to be vaccinated against COVID-19 was made considering the work health and safety obligations of the QAS and the significant risk to the health and safety of healthcare workers, support staff, patients, the families of these persons and other stakeholders.

While I acknowledge your stated genuinely held religious beliefs, these beliefs do not outweigh the purposes of the vaccine requirements in the QAS HR policy and I consider that prioritising the health and safety of your colleagues and your community is reasonable at this time.

  1. [41]
    A/AC Hammond considered the Appellant's submission regarding her religious belief and determined that these beliefs did not outweigh the safety of the other employees and the community. This determination was open to the decision maker. The Appellant included a copy of the matter Clark v State of Queensland (Queensland Health) ('Clark')[8] with her submissions, although did not specifically refer to the case. I note that in Clark, it was determined that the decision be set aside and returned it to the decision maker following a determination that the reasons for the decision did not meaningfully address how the religious beliefs were considered with respect to the exemption application. This matter can be distinguished from Clark on the basis that A/AC Hammond demonstrated that the Appellant's religious beliefs were considered as part of his decision.
  1. [42]
    I am satisfied that A/AC Hammond considered the Appellant's human rights when coming to his decision. A/AC Hammond reasonably acknowledged the impact on the Appellant's human rights, however determined that these impacts were reasonably justified and that no other reasonably practicable, effective and less restrictive way was available to ensure the safety of the Appellant, other staff and patients. I am satisfied that this determination was reasonable in the circumstances.
  1. [43]
    The relevant principles in considering whether a decision is 'unreasonable' were outlined by Ryan J in Gilmour v Waddell & Ors:[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.[10]

  1. [44]
    Applying the principles outlined above, I do not consider that the decision lacks justification in the circumstances. For the foregoing reasons, I am satisfied that the internal review decision confirming the decision not to grant the Appellant an exemption under the Policy was fair and reasonable.
  1. [45]
    I order accordingly.

Order

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

Footnotes

[1] 'High risk group' is identified under cl 3.3.2 of the Procedure.

[2] The Procedure, cl 3.6.2.

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

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

[5] Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5 as to the former, equivalent provisions in s 201 of the Public Service Act 2008 (Qld).

[6] IR Act s 562B(3).

[7] Following the replacement of the Procedure with the Policy.

[8] [2022] QIRC 170.

[9] [2019] QSC 170.

[10] Ibid [207]-[209].

Close

Editorial Notes

  • Published Case Name:

    Batchelor v State of Queensland (Queensland Ambulance Service)

  • Shortened Case Name:

    Batchelor v State of Queensland (Queensland Ambulance Service)

  • MNC:

    [2022] QIRC 336

  • Court:

    QIRC

  • Judge(s):

    Power IC

  • Date:

    29 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
2 citations
Jump To
Cite 1 - [1995] HCA 10
Cite 2 - [1995] HCA 10
Clark v State of Queensland (Queensland Health) [2022] QIRC 170
2 citations
Jump To
Cite 1 - [2022] QIRC 170
Cite 2 - [2022] QIRC 170
Gilmour v Waddell [2019] QSC 170
3 citations
Jump To
Cite 1 - [2019] QSC 170
Cite 2 - [2019] QSC 170
Cite 3 - [2019] QSC 170
Goodall v State of Queensland [2018] QSC 319
2 citations
Jump To
Cite 1 - [2018] QSC 319
Cite 2 - [2018] QSC 319

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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