Slykerman v State of Queensland (Queensland Health)
[2022] QIRC 39
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- Unreported Judgment
- Slykerman v State of Queensland (Queensland Health)[2022] QIRC 39
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Slykerman v State of Queensland (Queensland Health)[2022] QIRC 39
Slykerman v State of Queensland (Queensland Health)[2022] QIRC 39
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Slykerman v State of Queensland (Queensland Health) [2022] QIRC 039 |
PARTIES: | Slykerman, Heidi (Appellant) v State of Queensland (Queensland Health) (Respondent) |
CASE NO: | PSA/2022/14 |
PROCEEDING: | Public Service Appeal – Appeal against a decision made under a directive |
DELIVERED EX TEMPORE ON: | 14 February 2022 |
MEMBER: | Dwyer IC |
HEARD AT: | Brisbane |
HEARING DATE: | 14 February 2022 |
ORDER: |
|
CATCHWORDS: | PUBLIC SERVICE – APPEAL – appeal of decision under directive – where appellant employed by the State of Queensland as a Clinical Nurse School Based Youth Nurse – where the Health Employment Directive No.12/21 – Employee COVID-19 vaccination requirements required employees to receive at least a first dose of a COVID-19 vaccine by 30 September 2021 and receive the second dose of a COVID-19 vaccine by 31 October 2021 – where the appellant sought an exemption due to genuine religious belief – where exemption was refused – risk posed to the health and wellbeing of patients, colleagues and other stakeholders – where decision to refuse religious exemption fair and reasonable – where decision reviewing exemption decision confirmed |
LEGISLATION: | Industrial Relations Act 2016 (Qld) ss 562B, 562C Health Employment Directive No. 12/21 - Employee COVID-19 vaccination requirements cl 7, 8, 10 |
CASES: | Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018) Tilley v State of Queensland (Queensland Health) [2022] QIRC 002 |
APPEARANCES: | Ms H Slykerman the appellant Ms S O'Kane and Ms K Black of the State of Queensland (Queensland Health) |
Reasons for Decision (ex tempore)
Background
- [1]Ms Heidi Slykerman is employed by the Torres and Cape Hospital and Health Service ('the Health Service'). She is employed as a school-based youth health nurse.
- [2]On 11 September 2021, Queensland Health issued the Health Employment Directive No. 12/21 - Employee COVID-19 vaccination requirements ('the Directive'). The Directive required employees identified within certain groups to receive a COVID-19 vaccination on specified dates.[1] Ms Slykerman was one of those employees.
- [3]The Directive further provided that an employee did not have to comply if they were granted an exemption.
- [4]The Directive provided that an exemption would be considered where an employee:
- has a recognised medical contraindication; or
- a genuinely held religious belief; or
- in other exceptional circumstances.[2]
- [5]On 26 September 2021, Ms Slykerman applied for exemption on the basis of a genuinely held religious belief.
- [6]The exemption application form indicates two requirements for consideration of a religious exemption:
- a letter specifying the applicants deeply held religious belief that prevents them from receiving the vaccine; and
- a letter from a religious leader or official specifying their affiliation or connection to a religious group.
- [7]Ms Slykerman is a practising Christian and member of the Baptist Church. Ms Slykerman's application for exemption was accompanied by a personal letter setting out that her Christian faith did not condone abortion, and that an (asserted) association between the vaccines and a product known as 'MRC-5' meant that she could not take any of the vaccines available at the time of her application.[3]
- [8]Ms Slykerman's application was also accompanied by a letter from Pastor Morgan Slykerman, her husband, and the leader of the Cooktown Baptist Church. The letter from Mr Slykerman confirmed the beliefs held by Ms Slykerman as being consistent with those of the church.
- [9]Accordingly, Ms Slykerman complied with the evidentiary requirements prescribed in the exemption application.
- [10]The exemption application was considered by Dr Marlow Coates. It appears from his decision that Dr Coates considered additional material beyond the application for religious exemption. Correspondence previously prepared by Ms Slykerman and addressed to her line manager on or about 18 September 2021 was also included in her application for exemption. That correspondence set out many additional matters of concern held by Ms Slykerman and included references to a variety of statutes and conventions ('the additional matters').
- [11]Having regard to material filed in this appeal[4] and her submissions at hearing, it would seem Ms Slykerman had not intended for these additional matters to be included in her religious exemption application.
- [12]Further, having regard to the decision of Dr Coates dated 3 December 2021, it is clear the vast majority of that decision deals with the additional matters that were not intended for consideration. Notwithstanding this, Dr Coates still deals with the religious exemption, albeit briefly.
- [13]On 15 December 2021, upon receiving the decision of Dr Marlow to reject her application for religious exemption, Ms Slykerman sought an internal review of this decision.
- [14]On 21 December 2021, Mr Dean Davidson issued an internal review decision. It is apparent that on this occasion, the decision did not delve (in detail) into the additional matters. The key aspect of the decision made by Mr Davidson is as follows:
Furthermore, I am satisfied that Dr Coates responded to the information you submitted in your exemption request, specifically your concerns regarding the safety and efficacy of the vaccines. The Covid-19 vaccines are safe, effective and have been endorsed by the required regulatory authorities across the world and in particular the (sic) Australia’s Therapeutic Goods Administration (TGA).
Your exemption request based upon a genuinely held religious belief was considered in detail against the requirements of the Directive. The Directive considers the high level of risk to the health and wellbeing of patients, your colleagues, and other key stakeholders who access services from the TCHHS from already vulnerable communities.
Following my review, I can advise that the decision regarding your exemption request has not changed and your request remains denied.
(Emphasis added)
- [15]This is the decision that is now appealed by Ms Slykerman.
Statutory framework for public service appeals
- [16]Chapter 11 of the Industrial Relations Act 2016 (Qld) ('the IR Act') provides the Queensland Industrial Relations Commission ('the Commission') with jurisdiction to deal with appeals under the Public Service Act 2008 (Qld).
- [17]
- [18]The IR Act limits the powers of the Commission with respect to such appeals and in terms of the orders that can be made, namely:[7]
- (a)confirm the decision appealed against; or
- (b)for an appeal against a promotion decision - set the decision aside and return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate; or
- (c)for another appeal - set the decision aside and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.
Submissions of the parties
- [19]The parties in these proceedings filed written submissions in accordance with Directions on 28 January 2022 and 4 February 2022. Additionally, Ms Slykerman's appeal notice contains a short submission at Part C.
- [20]In her appeal notice, Ms Slykerman identifies two grounds (or 'points') for her appeal. In essence she submits:
- there was 'no recognition' of her deeply held religious belief; and
- there was no evidence to support the claim that she was a greater risk to patients, colleagues and other key stakeholders if she were unvaccinated.
- [21]In her written submissions filed on 28 January 2022, Ms Slykerman expands on these points. Ms Slykerman's submissions are premised by the proposition that she has not been presented with evidence that she presents a greater risk to others whilst unvaccinated and therefore there is no basis for the Health Service to rely on such a risk when dismissing her religious exemption application.
- [22]Ms Slykerman's written submission also descends into commentary about other steps for risk mitigation, though these are not matters that were before, or considered by the decision maker.
- [23]The Health Service's submissions primarily point to the lack of evidence supplied by Ms Slykerman to negate their safety concerns, and otherwise generally restate the risk as justification for the exemption refusal.
Consideration
- [24]At the outset it must be observed that there is a fundamental disconnect in the opinions of the parties with respect to the efficacy of the vaccines. It is not simply the case that Ms Slykerman has a religious objection to taking the vaccine. It is important to note that Ms Slykerman's concerns about the rejection of her religious exemption are intertwined with her views about the efficacy of vaccines. That is, Ms Slykerman does not accept the proposition (relied on by the Health Service) that the vaccines have been shown to reduce the risk of transmission of COVID-19. Consequently, she considers there is no compelling reason to refuse her application for a religious exemption.
- [25]It is this difference that underpins the entirety of the dispute between the parties.
Religious exemption
- [26]With respect to the matter under point one in her appeal notice, Ms Slykerman says there was 'no recognition' of her deeply held religious beliefs. In fairness to her, I accept her concerns arising from the decision of Dr Coates. As I noted above, Dr Coates' decision was less than fulsome in dealing with the religious exemption. Indeed, I consider the reasons dealing with the religious exemption in Dr Coates' decision were inadequate.
- [27]However, I am not reviewing that decision. Further, any unfairness arising from that decision is overcome by the way in which it was dealt with in Mr Davidson's decision.
- [28]Indeed, were there any doubt as to a clear enunciation of the reasons, it is removed by the words of her own appeal notice. Ms Slykerman reveals her understanding of the reason for the rejection where she says:
It was merely stated that the risks to patients, colleagues and other key stakeholders superseded my religious beliefs.
- [29]Ms Slykerman's use of the term 'merely' here is illuminating. The term is used subjectively, and it demonstrates how Ms Slykerman fails to accept the importance of competing considerations of workplace and community safety and how they could take precedence over her religious beliefs.
- [30]Ms Slykerman's true complaint is not that her religious beliefs have not been recognised. It is that they have not been given the degree of recognition that she thinks they deserve. Ms Slykerman's views in this regard are undoubtedly informed by her views on the efficacy of the vaccines.
- [31]As an aside, it ought to be noted for Ms Slykerman's benefit that the decision to reject her application for exemption is not in any way a criticism or diminishment of her religious beliefs. Ms Slykerman's beliefs are in no way controversial and are shared by many people around the world.
- [32]It is not the case that Ms Slykerman's religious beliefs have been cast aside without consideration or recognition. It is simply that, in these unprecedented times, difficult choices must be taken that require weighing personal beliefs and freedoms against the greater good of the community.
- [33]In the circumstances I do not accept that there was no recognition of Ms Slykerman's religious beliefs as she contends.
No evidence of risk
- [34]In relation to point two, the Directive represents (in its simplest form) a lawful and reasonable direction to Ms Slykerman. Following oral submissions today, I am satisfied that the lawfulness of the Directive is not in dispute. In essence, Ms Slykerman disputes the reasonableness of the direction for her to be vaccinated.
- [35]While not directly contended, Ms Slykerman presumably does not accept that she poses a heightened risk of transmission to colleagues and clients if she remains unvaccinated and consequently, she insists on proof. Ms Slykerman has adopted a position whereby she considers that the Health Service bears the onus to prove the reasonableness of the direction for her to be vaccinated. Ms Slykerman, without any lawful basis to do so, continues to demand access to the risk assessment undertaken by the Health Service in relation to vaccines, and proof that she is a heightened risk of transmission.
- [36]The difficulty for Ms Slykerman in adopting this position is that the weight of medical and scientific evidence is against her. The Directive has its origins in a directive issued by the Chief Health Officer. The Chief Health Officer is the most senior medical officer in the State of Queensland. It is trite to observe that all policy and laws regarding regulation and control of the population (at a State and Federal level) during the pandemic have been made with medical and scientific data at their foundation.
- [37]Given that the vast majority of control and containment measures adopted in Queensland and around the world have been broadly consistent (including the mass vaccination of populations), there has been ample opportunity for Chief Health Officers and governments to examine the reliability of the opinions held by the greater majority of the world's scientific community. These views (which are now commonly known) include that vaccination reduces transmission in a number of ways, namely, it can prevent people contracting the virus, it can limit the severity and the duration for which they experience it, and/or it can potentially reduce the ability of an infected person to spread the virus.
- [38]Whilst medical science has not arrived at exact conclusions of these outcomes, and whilst there are almost certainly anecdotal examples of failings by the vaccines in one setting or another, one thing that is universally clear from the available data is that being vaccinated will at least give a person a chance of avoiding serious (or any) infection that they would not have if unvaccinated. In simple terms: if there is a chance to avoid infection, there is a chance to avoid transmission. A chance is not a guarantee; however, it is better than nothing at all.
- [39]In the context of these now well-known and accepted facts, the direction of the Health Service is reasonable. Contrary to Ms Slykerman's assertions, it is not the Health Service that needs to defend an unreasonable direction but rather, it is for Ms Slykerman to present cogent evidence to support her insistence that the direction is unreasonable.
- [40]Ms Slykerman has produced no independent or credible evidence to support her position that she is at no greater risk of transmitting the virus than her vaccinated colleagues. While there is no doubt as to the sincerity of her reservations about the efficacy of the vaccines to prevent transmission, it is not incumbent on the Health Service to simply accept Ms Slykerman's view.[8] At all times the onus was on Ms Slykerman to provide proof to displace the widely accepted science.
- [41]In the circumstances I reject Ms Slykerman's second ground of appeal. In circumstances where a direction is (on any objective consideration) both lawful and reasonable, the onus rests with Ms Slykerman to prove the unreasonableness. She did not. In the absence of such evidence the decision of Mr Davidson was fair and reasonable.
Conclusion
- [42]The global pandemic has produced a number of unusual and difficult challenges for people in their everyday lives. The unprecedented nature of the pandemic has been fertile ground for confusion, doubt, and fear. In this instance, Ms Slykerman has had her deeply held religious beliefs tested in a way I am certain she never expected. I am not without some sympathy for Ms Slykerman in circumstances where she is undoubtedly facing an extraordinary dilemma.
- [43]Having regard to the decision under review, I am satisfied that Ms Slykerman's religious beliefs were properly considered by the decision maker. As sincere and genuine as those beliefs may be, I consider that prioritising the health and safety of Ms Slykerman's colleagues and her community was reasonable in the circumstances.
- [44]In all of the circumstances, I consider the decision to refuse a religious exemption was open to the decision maker and is fair and reasonable.
Order
- [45]In all of the circumstances, I make the following order:
- The decision appealed against is confirmed.
Footnotes
[1] Health Employment Directive No. 12/21 - Employee COVID-19 vaccination requirements, cls 7 and 8.
[2] Ibid cl. 10
[3] MCR-5 has its origins in cells extracted from a human foetus procured through an abortion. Ms Slykerman did not have the option of the Novavax vaccine at the time of her exemption application, but she indicated at hearing that she is currently not prepared to take it as booster doses are from the other suite of vaccines.
[4] Attachment 3 to the Respondent’s submissions filed 4 February 2022.
[5] Industrial Relations Act 2016 (Qld) s562B; Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018), 5.
[6] Industrial Relations Act 2016 (Qld) s 562B(3).
[7] Ibid s 562C.
[8] Tilley v State of Queensland (Queensland Health) [2022] QIRC 002.