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  4. Friis v State of Queensland (Queensland Ambulance Service) - [2022] QIRC 360

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Friis v State of Queensland (Queensland Ambulance Service)[2022] QIRC 360

Friis v State of Queensland (Queensland Ambulance Service)[2022] QIRC 360

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Friis v State of Queensland (Queensland Ambulance Service) [2022] QIRC 360

PARTIES:

Friis, Michael

(Appellant)

v

State of Queensland (Queensland Ambulance Service)

(Respondent)

CASE NO:

PSA/2022/550

PROCEEDING:

Public Service Appeal – Appeal against decision under a directive

DELIVERED ON:

15 September 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 SERVICES APPEAL – Where the applicant is 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 two doses of a COVID-19 vaccine by 27 February 2022 unless the employee has a valid exemption – where applicant applied for an 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 to provide confirmation of vaccination – where decision imposed is fair and reasonable – decision appealed against 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 Michael Friis is employed by the State of Queensland (Queensland Ambulance Service) ('QAS'), in the position of Advanced Care Paramedic II. Mr Friis appeals a decision to refuse his request for an exemption from the requirement to be administered a COVID-19 vaccine.
  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 Friis' 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 employees 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 30 September 2021, Mr Friis applied for an exemption to the mandatory vaccine requirements identifying 'other exceptional circumstances'. Although Mr Friis contends that he had submitted two COVID-19 vaccination exemption requests to the QAS, the QAS records indicate that only one exemption application was submitted by Mr Friis. Mr Friis stated that he had numerous concerns regarding the COVID-19 vaccine, including its safety and efficacy, his ability to provide consent, the potential risks to himself if he were to take a 'medication that has no long-term testing', and that there was a 'low rate of death'.
  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').
  1. [6]
    On 1 February 2022, Mr Friis was provided with an opportunity by the QAS to submit any updated or additional information in support of his existing application. On 8 February 2022, in support of his application, Mr Friis made claims that COVID-19 was 'weaking in severity', and there was evidence that the COVID-19 vaccination was 'ineffective at preventing infection and transmission'. In addition, Mr Friis claimed that being unvaccinated would only be a risk to that individual (who is unvaccinated), and on that basis, he claims that the decision to be vaccinated should remain a personal choice.
  1. [7]
    By letter dated 2 March 2022, the QAS determined to refuse Mr Friis' exemption application. On 16 March 2022, Mr Friis requested an internal review of the decision to refuse his exemption application reiterating his concerns regarding the risk, safety and efficacy of COVID-19 vaccines, and his ability to provide consent. On 26 March 2022, Mr Friis also requested that the QAS provide him with a copy of a QAS risk assessment regarding COVID-19 vaccination for the Laidley station and the West Moreton region.
  1. [8]
    By letter dated 13 April 2022, the QAS advised Mr Friis that it had confirmed the decision dated 2 March 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 Friis 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 Friis 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 4 May 2022, Mr Friis appealed the decision of the QAS. Mr Friis identified the basis of his appeal in the following terms:

Having has my Request for exemption from the Covid-19 vaccine mandate requirements rejected I made a request for an internal review. This internal review upheld the original decision. I am, therefore, requesting an external review of my case and am able to provide the information and facts that I have previously submitted relating to my case.

I do not agree with the outcome from these review as aside from broad statements, I have not been provided with facts to substantiate these statements. In turn I have provided facts/evidence for my case and would like my request for exemption from the Covid-19 vaccine mandate reconsidered.

  1. [10]
    Mr Friis attaches to the appeal notice the decision together with his request for an exemption and his written submissions relied on by him in the internal review. From these documents it can be inferred that Mr Friis raises four grounds upon which he contends that the decision was not fair and reasonable. These grounds can be addressed, in summary, as follows:
  1. (a)
    safety and efficacy ('ground one');
  2. (b)
    immediate and long-term effects ('ground two');
  3. (c)
    consent ('ground three'); and
  4. (d)
    the death rate associated with COVID-19 ('ground four').[1]
  1. [11]
    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. [12]
    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.[2]  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. [13]
    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.[3]  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.[4]
  1. [14]
    For the reasons contained herein, I have found that the decision was fair and reasonable.

The decision

  1. [15]
    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 Friis' request for exemption from compliance with the QAS HR Policy was correctly refused.
  1. [16]
    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.

In your request for a review dated 16 March 2022, you outlined that following concerns:

  1. The efficacy of the various vaccines/ The low death rate from COVID-19.
  2. The potential risk to yourself from medication that has no long-term testing regarding safety both immediate and long term.
  3. The issue of informed consent.

I note these are similar concerns that you submitted in your original request for an exemption decided by Mr Clarke.

While I note your submissions, your views regarding the safety, efficacy and potential personal risks from the COVID-19 vaccine and not supported. Queensland health's position remains that the COVID-19 vaccinations are safe and reliable. 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. Evidence from around the world (including the TGA) demonstrates that the COVID-19 vaccines are safe and effective.

I note that the decision of the Director-general, Queensland Health to require vaccination against COVID-19 was made considering the significant risk to the health and safety of healthcare workers, support staff, their families, and the patients under our care. The decision also took into consideration the potential impacts of the decision on human rights.

Whilst I against note your submissions on this topic, the decision does not itself compel a person to be vaccinated, but it does impose employment consequences upon people who do not meet the vaccination requirements of their role, as outlined within the QAS HR Policy, unless certain extenuating circumstances apply and an exemption is granted.

Having reviewed all of the relevant material, I am satisfied that Mr Clarke has appropriately considered the concerns that you have raised around these issued and I concur with his assessment. The concerns you have raised related to safety, efficacy, risk and informed consent are not supported and do not constitute 'another exceptional circumstance' for the purposes of granting an exemption from the COVID-19 vaccination requirements of your role.

  1. [17]
    The decision maker also considered the effects of the decision on Mr Friis' 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. [18]
    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. [19]
    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. [20]
    The QAS HR Policy sets out the mandatory vaccination requirements for all current and prospective employees working for the QAS.
  1. [21]
    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. [22]
    Clause 2 of the QAS HR Policy includes a table[5] which separates QAS employees into a group number based on their employee cohort. Relevantly, Mr Friis falls within one of the employee group numbers.
  1. [23]
    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. [24]
    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. [25]
    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. [26]
    Mr Friis' written submissions[6] are brief and are substantively contained in the following three points:
  • I have previously requested a risk assessment be performed relating to the implementation of the mandatory COVID-19 vaccinations in my workplace which also included a request for consultation as part of this process. As yet, I have had not been contacted regarding his nor have I been involved in any discussion to this end.
  • I have also previously submitted two COVID-19 vaccination exemption requests – both of which have been denied. You have a copy of these for your consideration.
  • I maintain that I am ready, willing and able to resume my role as a Paramedic with the Queensland Ambulance Service – Which I have done for the best part of 24 years – should I be given the opportunity.
  1. [27]
    As noted above, Mr Friis' written submissions from the internal review were attached to the appeal notice. I will consider these submissions together with the written submissions filed as directed in this appeal.
  1. [28]
    In considering the appeal, I will adopt the grounds of appeal as set out in paragraph [10] above.

The Grounds of Appeal – consideration  

  1. [29]
    It is convenient to deal with Mr Friis' grounds of appeal together.
  1. [30]
    At the outset, it must be remembered, that this is an appeal of a decision refusing to grant Mr Friis an exemption from the QAS' mandatory vaccine requirements. The exemption request form identifies three grounds upon which an exemption may be sought. The three grounds are:
  1. (1)
    unable to receive any COVID-19 vaccine due to a recognised medical contraindication;
  2. (2)
    unable to receive any COVID-19 vaccine due to a genuinely held religious belief;  or
  3. (3)
    other exceptional circumstances.
  1. [31]
    The exemption request identifies the requirement to establish 'other exceptional circumstances' as follows:

In extremely limited circumstances, an exemption may be granted where an employee can demonstrate 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 circumstances must exist.

Where this can be demonstrated, the employee's circumstances will be considered on an individual basis in accordance with Queensland health's legislative obligations and industrial arrangements however exemption will only be granted in exceptional circumstances.

  1. [32]
    Relevantly, it is noted that vaccine hesitancy and conscientious objection, by themselves, are not considered exceptional circumstances. Mr Friis identified on his application for an exemption that he has a number of 'concerns' relating to the mandating of the various COVID-19 vaccines. These included, in summary, Mr Friis' concerns regarding the efficacy of the vaccines, the potential risk to Mr Friis regarding the safety of the vaccines, informed consent, and the low rate of death from COVID-19.
  1. [33]
    The decision had regard to Mr Friis' concerns and considered his concerns as follows:

Whilst I note your submissions, your views regarding the safety, efficacy and potential personal risks from the COVID-19 vaccine and not supported. Queensland health's position remains that the COVID-19 vaccinations are safe and reliable. COVID-19 vaccines have undergone all of the usual assessment including peer review and publication of phase one, phase two and three clinical trials and review by multiple licensing bodies including the Therapeutic Good Administration (TGA). The vaccines are now in routine clinical use to prevent disease. Evidence from around the world (including the TGA) demonstrates that the COVID-19 vaccines are safe and effective.

I note that the decision of the Director-General, Queensland Health to require vaccination against COVID-19 was made considering the significant risk to health and safety of healthcare workers, support staff, their families, and the patients under our care. The decision also took into consideration the potential impact of the decision on human rights.

Whilst I note again your submission on this topic, the decision does not itself compel a person to be vaccinated, but it does impose employment consequences upon people who do not meet the vaccination requirements of their role, as outlined within the QAS HR Policy, unless certain extenuating circumstances apply and an exemption is granted.

Having reviewed all of the relevant material, I am satisfied that Mr Clarke has appropriately considered the concerns that you have raised around these issues, and I concur with his assessment. The concerns you have raised do not constitute 'another exceptional circumstance' for the purposes of granting an exemption from the COVID-19 vaccination requirements of your role.

  1. [34]
    The matters raised by Mr Friis do not support an exemption from receiving any COVID- 19 vaccine for exceptional circumstances. The concerns he raised in the exemption application and again in this appeal support a conclusion that Mr Friis is hesitant to be administered a COVID-19 vaccine because of the concerns he holds. Vaccine hesitancy does not constitute a ground of exceptional circumstances that would support an exemption application.
  1. [35]
    It is accepted that Mr Friis genuinely holds the concerns that he does regarding the COVID-19 vaccine. Whilst Mr Friis is entitled to hold such concerns and to express his views regarding the safety and efficacy of the COVID-19 vaccine, it is not incumbent on the QAS to accept Mr Friis' view.[7]
  1. [36]
    In this regard, the QAS has had regard to the fact that COVID-19 vaccinations have been approved by the TGA and ATAGI. Given the regulatory role of the TGA and the ATAGI, I consider it fair and reasonable for the QAS to rely on the approval of the vaccines by the appropriate regulators to support its conclusions that the vaccines are safe and effective.
  1. [37]
    For the reasons referred to above, such matters, in any event, do not form a basis upon which an exemption request may be granted. I am satisfied that appeal grounds one and two do not establish that the decision was not fair and reasonable.
  1. [38]
    Further, Mr Friis contends that he has been deprived of free and informed consent. Mr Friis contends that he has been the subject of coercion and that he is unable to give informed consent with respect to the administration of the COVID-19 vaccine. Mr Friis has been directed to adduce evidence that he has been administered the COVID- 19 vaccine. Mr Friis has chosen not to be administered the vaccine and in doing so, has exercised his choice. It is clear that Mr Friis has been free to refrain from providing his consent. The vaccine has not been administered without his consent. Relevantly, in order to be administered the COVID-19 vaccine, Mr Friis would be required to attend a properly authorised medical and/or pharmaceutical provider.
  1. [39]
    There is no evidence before me that Mr Friis has been administered the COVID-19 vaccine, indeed I am satisfied from Mr Friis' submission that he has not been administered the COVID-19 vaccine. Accordingly, I consider that Mr Friis has freely exercised his choice not to be administered the vaccine.
  1. [40]
    However, in exercising that choice, Mr Friis has seemingly chosen not to comply with a request made by his employer. There are potential consequences that may follow the exercise of that choice, including the commencement of a disciplinary process. That appears to be no different to any other circumstances in which it is alleged an employee chooses not to abide with a lawful and reasonable direction of their employer.
  1. [41]
    Further, Mr Friis argues that he has not been given evidence of the risks associated with the vaccine. The QAS Policy sets out the links to data and underlying information regarding the safety and efficacy of the COVID-19 vaccine. Mr Friis' dissatisfaction with that material or his failure to obtain further data does not form a basis for a request for an exemption. It is fair and reasonable for the QAS Policy to rely on the data and information it cites as reliable and probative. If Mr Friis holds particular concerns regarding his own personal health, then ordinarily such enquiries should be made by him to his treating medical practitioner as a starting point. There is no evidence before the Commission that Mr Friis has done so.
  1. [42]
    I am satisfied that appeal ground three does not establish that the decision was not fair and reasonable.
  1. [43]
    Finally, Mr Friis questions the data relied on and puts forward his own alternative data, from both cited and uncited sources regarding vaccination rates and deaths associated with COVID-19.  He does so in order to support an argument that the risks posed by COVID-19 should not be classed as 'significant' and subsequently there should be no 'need' to be vaccinated. Whilst Mr Friis is again entitled to hold this view in this regard, it is not incumbent upon QAS to abandon its reliance on data it concludes to be reliable and probative in favour of an assortment of largely unsourced data from Mr Friis. Further, Mr Friis' submissions go beyond the decision subject to this appeal and appears to question the decision of the Director-General, Queensland Health to require vaccination against COVID-19 due to what was considered the significant risk to the health and safety of healthcare workers, support staff, their families and the patients under Queensland healthcare. That decision is not a matter for my consideration in this appeal.
  1. [44]
    I am satisfied that appeal ground four does not establish that the decision was not fair and reasonable.

Conclusion

  1. [45]
    For the forgoing reasons, I am satisfied that the decision was fair and reasonable.

Order

  1. [46]
    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] Collectively, the 'grounds of appeal'.

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

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

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

[5] Table 1.

[6] Filed on 31 May 2022.

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

Close

Editorial Notes

  • Published Case Name:

    Friis v State of Queensland (Queensland Ambulance Service)

  • Shortened Case Name:

    Friis v State of Queensland (Queensland Ambulance Service)

  • MNC:

    [2022] QIRC 360

  • Court:

    QIRC

  • Judge(s):

    Hartigan IC

  • Date:

    15 Sep 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

Cases Citing

Case NameFull CitationFrequency
Allison v State of Queensland (Department of Education) [2024] QIRC 2632 citations
Daunt v State of Queensland (Department of Education) [2024] QIRC 2511 citation
Davenport v State of Queensland (Department of Education) [2024] QIRC 2062 citations
Rowe v State of Queensland (Department of Education) [2024] QIRC 2482 citations
1

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