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  4. Pitman v State of Queensland (Queensland Health) - [2022] QIRC 399

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Pitman v State of Queensland (Queensland Health)[2022] QIRC 399

Pitman v State of Queensland (Queensland Health)[2022] QIRC 399

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Pitman v State of Queensland (Queensland Health) [2022] QIRC 399

PARTIES:

Pitman, Joshua

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

PSA/2022/602

PROCEEDING:

Public Service Appeal – Appeal against a discipline decision

DELIVERED ON:

17 October 2022

MEMBER:

McLennan IC

HEARD AT:

Brisbane

ORDER:

  1. The decision appealed against is confirmed.

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL – appeal against a discipline decision – where appellant is employed by the State of Queensland as an Environmental Health Officer – 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 applied for an exemption under the category of 'genuinely held religious belief' – where exemption not granted – where internal review of exemption refusal decision was not sought – where appellant received show cause letter – where appellant subsequently first dose vaccinated on 23 February 2022 – where appellant subsequently second dose vaccinated on 16 March 2022 – where appellant issued with reprimand – where appellant appeals decision to issue reprimand – decision appealed against confirmed

LEGISLATION & OTHER INSTRUMENTS:

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

Public Service Act 2008 (Qld)

Health Employment Directive No. 12/21 – Employee COVID-19 vaccination requirements cl 7, cl 8,

CASES:

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

Huntington v State of Queensland (Queensland Health) [2022] QIRC 290

Reasons for Decision

  1. [1]
    Mr Joshua Pitman is employed as an Environmental Health Officer by Queensland Health ('the Department') at the Cairns and Hinterland Hospital and Health Service (CHHHS).
  1. [2]
    Mr Pitman was subject to the Health Employment Directive No. 12/21 - Employee COVID-19 vaccination requirements ('the Directive').  He falls under Group 2, cl 7.1 of the Directive which covers workers in a facility where clinical care or support is required.  Mr Pitman was subject to the mandatory vaccination requirements at cl 8.1 of the Directive.
  1. [3]
    Mr Pitman did not comply with the requirement that he receive the first COVID vaccine dose by 30 September 2021 and a second one by 31 October 2021.
  1. [4]
    Rather, Mr Pitman applied for an exemption on 30 September 2021.  Mr Pitman asserted that he was unable to meet the COVID-19 vaccination requirements on the grounds of a "genuinely held religious belief".  In support of his exemption application, Mr Pitman provided a letter from the Senior Pastor of Calvary Chapel Kaneohe.[1]
  1. [5]
    Mr Pitman's exemption application was refused in correspondence from CHHHS dated 10 December 2021, that also:
  • directed Mr Pitman to comply with the Directive within 7 days of receipt - and to provide confirmation of same;
  • advised Mr Pitman that failure to follow such lawful direction may result in disciplinary action; and
  • alerted Mr Pitman that he may request a review of the exemption refusal decision and the process and timeframe for doing so.
  1. [6]
    Significantly, Mr Pitman did not request a review of the exemption refusal decision, despite the clear opportunity to do so.
  1. [7]
    On 4 January 2022, the Respondent submitted that Mr Pitman confirmed to his line manager[2] in a telephone call that he was not vaccinated - nor was he willing to get vaccinated.
  1. [8]
    Two days later, CHHHS issued correspondence to Mr Pitman advising that he was now required to show cause as to why a disciplinary finding should not be made against him in relation to the following allegation:

You have contravened a direction given to you, pursuant to Health Employment Directive No 12/21, you have not received your first and second dose of a COVID-19 vaccine by 31 October 2021.[3]

  1. [9]
    Mr Pitman had opportunity to submit an explanation within 14 days as to why a disciplinary finding should not be made against him.  He was also suspended from duty on normal remuneration at that time.
  1. [10]
    On 19 January 2022, Mr Pitman provided a written response to the CHHHS.  By cover email, Mr Pitman stated (in part) that:

…I am not against taking an appropriate vaccine.  I have outlined my reasons in the document attached.  I am far more comfortable with COVAX and maybe Novavax pending further investigation.

I believe the reasons I have provided are more than sufficient for an exemption to be reconsidered until a more appropriate vaccine is available…[4]

  1. [11]
    But Mr Pitman had not sought a review of the exemption refusal decision.  His response was not a different avenue for his exemption application to be reconsidered.  That opportunity had since passed.
  1. [12]
    Mr Pitman's submission as to why a disciplinary finding should not be made against him traversed a variety of concerns including:
  • religious beliefs;
  • safety of vaccine;
  • economic coercion;
  • adherence to integrity and other core values;
  • legal defence pertaining to "Constitutional Law about Rights to Own Body";
  • COVID-19 statistics;
  • mandates inconsistent with democratic society;
  • limitation on human rights not warranted; and
  • vaccinated employees can fulfil tasks involving interaction with vulnerable people.
  1. [13]
    Mr Pitman asserted that he was not anti-vax, as he has had all the other "proven and documented" vaccines applicable.
  1. [14]
    However, the show cause response provided by Mr Pitman on 19 January 2022 did not convey an intention to comply with the Directive. 
  1. [15]
    In fact, Mr Pitman stated that his "…conscience is deeply troubled about the current vaccines.  Please note the word 'current'.  I am not rebellious, but I will stand against wickedness in all its forms.  I will consider all other future vaccines if that is required.  I have outlined why I cannot take the current vaccines…"
  1. [16]
    Whilst Mr Pitman claimed he was "not against taking an appropriate vaccine", he certainly evinced no clear plans to do so.
  1. [17]
    On 25 January 2022, the CHHHS again wrote to Mr Pitman stating that the allegation against him was found to be substantiated, without reasonable excuse.  That correspondence noted that Mr Pitman had still not received a COVID-19 vaccination.  The disciplinary action of termination of employment was proposed - and Mr Pitman was provided an opportunity to show cause within seven days why that proposed action should not be taken.
  1. [18]
    Further the CHHHS correspondence explained Mr Pitman's appeal rights with respect to the disciplinary finding decision, including the process and timeframe for doing so.  Ultimately though, Mr Pitman did not take steps to appeal that decision either.
  1. [19]
    On 31 January 2022, Mr Pitman provided his written response to the proposed disciplinary action of termination of employment.  That document was titled "Notice of Response, Non-Consent, Conscientious Objection and Further and Better Particulars" and stated Mr Pitman "…now DEMAND evidence and proof from you (Employer) to justify your actions in this Notice in twenty-eight (28) days of receipt of this Notice." 
  1. [20]
    In that correspondence, Mr Pitman further asserted that the CHHHS had "…failed to justify how you considered my genuinely held religious belief does not warrant me an exemption to taking provisionally approved trial drugs for a disease with 99+% recovery rate." 
  1. [21]
    He complained that risk assessments had not been provided in relation to dangers of COVID vaccines and other information. 
  1. [22]
    Mr Pitman noted that he was:

…willing to work from home until such a time as a more suitable vaccine is made available.  Such vaccines that would have been an option are the Novavax and Covax that I have been researching their validity since the middle of last year.  I have always maintained I am not against acquiring an appropriate vaccine, however, in your response to my letter dated 19 January 2022, you failed to acknowledge that point.  At the time of the letter titled 'Private and Confidential', which was sent and received on the 19 January 2022, the current vaccines that I could not, voluntarily receive, due to a genuinely held religious belief which was outlined in the aforementioned letter, were Pfizer, Astrazeneca and Moderna vaccines.[5]

  1. [23]
    Mr Pitman essentially repeated his earlier assertion that he could not comply with the mandate due to a genuinely held religious belief, with respect to the vaccines currently available: Pfizer, Astrazeneca and Moderna.
  1. [24]
    Though Mr Pitman did then indicate some conditional intention to comply with the Directive, flirting with the prospect of accessing the Novavax vaccine at some future date in these terms:

…In my correspondence, however, I left it open to the prospect of acquiring a vaccine that did not contravene my beliefs and/or my conscience.  As the Novavax vaccine has now been approved, and will be available later in February, you have failed to provide me the opportunity to acquire a vaccine that does not breach my religious belief, and therefore, disallow me the ability to comply with the directive or requirement you have mandated…[6]

  1. [25]
    On 8 February 2022, Mr Pitman emailed the CHHHS (in part) stating:

…I am willing to take the two (2) doses of Novavax.  I would be doing this for the purpose of keeping my job, if the vaccine mandate is still in place when the Novavax becomes available.

Jacinta mentioned on Friday 4 February 2022 at approximately 15:00 pm via phone call, if I was willing to acquire the Novavax, provisions would be made to recommence working from home.

I am willing and able to work from home…

  1. [26]
    Mr Pitman's email stopped short of providing a clear timeframe as to when he would comply with the Directive.  Neither did he resile from the various demands contained in the "Notice of Response, Non-Consent, Conscientious Objection and Further and Better Particulars", specifically reminding the CHHHS that its response to his "legal document" was "required before the 28 February 2022".
  1. [27]
    On 16 March 2022, Mr Pitman finally provided CHHHS with proof of vaccination.  He had received the first dose of Novavax on 23 February 2022 - and the second dose on 16 March 2022.
  1. [28]
    On 15 May 2022, CHHHS issued Mr Pitman correspondence conveying the much less onerous disciplinary penalty of "a reprimand".  That disciplinary determination took account of both Mr Pitman's newly minted 'double vaccinated' status and his show cause response.
  1. [29]
    Appropriately, the CHHHS correspondence once again explained Mr Pitman's appeal rights, process and timeframes.
  1. [30]
    It is the disciplinary action decision of "a reprimand" that is the subject of Mr Pitman's appeal.

Statutory framework for public service appeals

  1. [31]
    The appeal is made pursuant to chp 11 of the Industrial Relations Act 2016 (Qld) ('the IR Act'), which provides the Queensland Industrial Relations Commission ('the Commission') with jurisdiction to deal with appeals under the Public Service Act 2008 (Qld).
  1. [32]
    An appeal is a review of a decision. It is not a rehearing of the matter on its merits.[7]  I am required to review the decision to issue Mr Pitman with a reprimand to determine whether that decision was fair and reasonable.[8]
  1. [33]
    The IR Act limits the powers of the Commission with respect to such appeals and the orders that can be made, namely:[9]
  1. (a)
    confirm the decision appealed against; or
  1. (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 permitted under a directive of the commission chief executive under the Public Service Act 2008 that the commission considers appropriate; or
  1. (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

  1. [34]
    Parties in these proceedings have provided the Commission with written submissions, in accordance with directions issued on 8 June 2022.

Mr Pitman's submissions

  1. [35]
    Mr Pitman's submissions filed on 15 June 2022 again traversed the variety of concerns he had earlier submitted to be relevant to the CHHHS's consideration of whether or not to substantiate the allegation and make a disciplinary finding against him.  He stated "I will now take this time to reiterate my past correspondence, which was not addressed, as a defence why a disciplinary action should not be taken against myself…"  Mr Pitman's arguments are summarised at paragraph [12] of this Decision and need not be repeated here in full.
  1. [36]
    Mr Pitman asserted that he had applied for exemption on the grounds of genuinely held religious belief:

…according to the due process and provided a letter…from Pastor J. D. Farag, explaining why acquiring Pfizer, Astrazeneca or Moderna was impossible.  The fact that no consideration to my beliefs, working situation, the high survival rate of Covid or providing another option in the refusal of my exemption request, portrays a purposeful attack on my job, the means by which I provide for my family, when I complied and desired to comply with the requirements.

  1. [37]
    In that submission, Mr Pitman appeared to me not to have grasped that whilst it was open to him to make an exemption application, that application was then to be considered and a determination made.  It was never the case that such exemption applications were to be automatically granted as of right.  While it was open to Mr Pitman to elect to contest the exemption refusal decision at that point by requesting an internal review – he did not do so. 
  1. [38]
    In reply submissions filed on 30 June 2022, Mr Pitman did then acknowledge that "I also understand that the Directive allowed for exemption considerations, but not guaranteed."  Mr Pitman wrote "…the disciplinary finding against me was due to the fact that I did not receive two doses of a Covid-19 vaccine for 5 months after the direction was placed.  However…I was continually trying to appeal the decision regarding the disciplinary action taken against me, even though it was continually rejected."
  1. [39]
    Ultimately, Mr Pitman sensibly conceded that:

I acknowledge that when I received the correspondence informing me that my exemption had been rejected, I was provided with details on how to request an internal review of the rejection and the timeframe to do so.  I acknowledge that I did not request an investigation.  I regret not asking for an internal review into the decision made.  I know I cannot change the fact that I did not.

  1. [40]
    Mr Pitman went on to explain the reason he did not do so was that he was due to commence leave a week after the exemption refusal was received, found the situation stressful, could not access his work emails whilst on leave, and so could not contact anyone further about it until returning from leave on 4 January 2022.
  1. [41]
    Mr Pitman's reply submissions assert both that the "sole reason" he did not take the three initial vaccines available was his "religious beliefs" – but then persists in pressing for CHHHS's "to explain why it was justified to infringe on my right to religious freedom" by demanding "supporting evidence to justify their decisions regarding infringing on my human rights and coercing me into a medical procedure."  He said:

As I have stated in my initial appeal, the Covid 19 vaccines, as far as research has shown, does not prevent transmissibility nor contractibility.  I would ask that the Respondent provide evidence on how not receiving the vaccine places the groups and individuals listed at risk.  As the Respondent is making the claim "I was a risk whilst unvaccinated," the 'burden of proof' is on the Respondent to prove the claim...

…

If there is no evidence to support such a claim, then it stands to reason I was not a risk holding to my religious beliefs.

  1. [42]
    Mr Pitman reiterated his "objection to the vaccines available at the time was that aborted foetal cells had been used in research and production of the vaccines."  But added that "I included other reasoning in addition to religious beliefs due to the fact that the first reason had been rejected.  I was doing so to further justify myself.  However in no way was my decision based solely on the added reasons.  I would have complied with the direction if no aborted foetal cells had been used, even if I had other concerns."
  1. [43]
    Foundationally, Mr Pitman's appeal disputes that CHHHS's decision to impose a reprimand was fair and reasonable because:

I acknowledge that when the disciplinary findings were made, I was not fully vaccinated.  I had been disputing the disciplinary actions, as it was unreasonable and unfair to discipline me based on a religious objection, and the fact that I was making steps to research and find a vaccine that I could have during this time in order to comply with the mandate.

  1. [44]
    Essentially, Mr Pitman argued that his delay in complying with the Directive was reasonable because it took some time for a vaccine to become available that would not go against his religious beliefs – and, once identified, he needed to research when Novavax would be available to him locally.

Submissions of the Department

  1. [45]
    The Department maintains it was reasonable to determine to impose a reprimand, having regard to the following matters:
  • the Directive constituted a lawful and reasonable direction;
  • Mr Pitman did not comply with that requirement within the prescribed timeframe;
  • the non-compliance was without reasonable excuse, as Mr Pitman does not have an approved exemption;
  • Mr Pitman did not request an internal review of the exemption refusal;
  • the process was procedurally fair;
  • that Mr Pitman received the required two doses of a COVID-19 vaccine

"some five months after the obligation in HED 12/21 was imposed"; and

  • the personal, professional and financial impact of the prior proposed disciplinary action of termination of employment, and whether an alternative disciplinary penalty would be more appropriate in the circumstances.
  1. [46]
    The Department's submissions emphasised the point that "…an exemption application will be considered where the employee has a recognised medical contraindication, the employee has a genuinely held religious belief or where another exceptional circumstance exists.  The obligation under the Directive is for the Department to consider an application for exemption, it is not obliged to grant an exemption."
  1. [47]
    The Department submitted that "The effect of Mr Pitman failing to comply with HED 12/21 for five months was that he was unable to undertake the inherent requirements of the role for that five months and was suspended from duty on full remuneration for this period."

Consideration

  1. [48]
    On 4 January 2022, during a phone call with his manager, Mr Pitman confirmed "that he remained unvaccinated and was not willing to become vaccinated."
  1. [49]
    When CHHHS advised Mr Pitman the disciplinary penalty under consideration was 'termination of employment', he obtained the first dose of Novavax just under a month later.
  1. [50]
    Mr Pitman explained his delay in getting vaccinated and his intentions, in these terms:

I would also like to clarify my statement regarding my willingness to receive a future Covid Vaccine.  I was not able to truthfully confirm that I would take a Covid vaccine, as I did not know at the time if Novavax would be approved in Australia.  If I had stated 'I will definitely get one', this would have been a lie because I could not confirm that one would become available that would not go against my religious beliefs.  My correspondence made it clear that I would consider all the future vaccines to come and have one that did not go against my conscience.  Therefore, it can be seen that I was willing to receive a Covid vaccine, and the Respondent's use of words to try and imply that I never 'confirmed', is unreasonable, as it is clearly implied by my communication with them.  Also, this statement is further backed up by my immediate contact with them once I confirmed the Novavax had been approved.  I continued to do my own research to find out the dates that the Novavax would be available in a location I could obtain it, further showing my eagerness and willingness to comply with the mandate.

  1. [51]
    Ultimately, Mr Pitman did not become fully vaccinated and provide evidence of same as required until 16 March 2022 "some 50 days after the disciplinary findings had been made against him."
  1. [52]
    In my view, CHHHS's decision to impose the penalty of a reprimand was fair and reasonable for the suite of reasons outlined in paragraph [45] above. 
  1. [53]
    This Commission has held that the Directive constituted a lawful and reasonable direction.
  1. [54]
    Mr Pitman's various submissions reveal vaccine hesitancy writ large.  However, it has been held that is not an exceptional circumstance.
  1. [55]
    It is uncontroversial that Mr Pitman did not comply with the requirement to be fully vaccinated within the timeframes prescribed in the Directive. 
  1. [56]
    Whilst Mr Pitman sought exemption on the grounds of his "genuinely held religious beliefs", that was refused.  And so Mr Pitman did not have a reasonable excuse for his continued non-compliance.  I agree with the Respondent's submission that "…it is clear Mr Pitman's true complaint is not that his religious beliefs have not been recognised, but that they have not been given the degree of recognition that he thinks they deserve" and that "he failed to accept the importance of competing considerations of workplace and community safety and how they could take precedence over his religious beliefs."  That is a neat summary of what was going on in this case.
  1. [57]
    Mr Pitman also notably did not exercise his rights for an internal review of that decision – nor file any other appeal until this. 
  1. [58]
    There was no issue with the process undertaken by CHHHS – it was procedurally fair.  I further note the assistance provided to Mr Pitman by staff working in the COVID-19 Workforce Cell, evidenced (in part) by the email exchanges of 8 February 2022 whereby it was suggested that he may "wish to amend your response to advise of your intention to obtain both doses of Novavax (if that is the case), please do so today."  I also see that Mr Pitman was told that "…if I was willing to acquire the Novavax, provisions would be made to recommence working from home."  Despite all that, Mr Pitman was still persisting with demanding CHHHS's response to his template 'Notice' show cause response and providing the vaccination undertaking "if the vaccine mandate is still in place when the Novavax becomes available."
  1. [59]
    Although Mr Pitman himself did not propose an alternative disciplinary penalty to the termination of his employment, CHHHS did carefully consider the personal, professional and financial impact of that and itself determined the much lesser penalty of a reprimand to be more appropriate in the circumstances.
  1. [60]
    In several core aspects, this case is analogous with the recent decision in Huntington v State of Queensland (Queensland Health).[10] The observations of Industrial Commissioner Dwyer in that matter are apposite and I follow his conclusions here:

[42] I can fully appreciate how the decision-maker came to their conclusion and I consider in the circumstances that the decision was, in every respect, fair and reasonable. Ms Huntington appears to somehow confuse her eventual compliance with actual compliance. But it is an inescapable fact that despite her vaccination in early March 2022 she was, for the majority of the period between September 2021 and February 2022 contravening a lawful and reasonable direction of her employer.

[43] The Directive specified precise dates by which Ms Huntington was required to be vaccinated. While subsequent vaccination might serve to mitigate the effects of her non-compliance, it does not extinguish the fact that Ms Huntington did not comply with the Directive because she did not receive those vaccinations on the dates stipulated.

[44] In circumstances where she has not offered a reasonable excuse for her conduct, she remains liable to sanction for her non-compliance.

[45] In my view, Ms Huntington ought to consider herself fortunate that the sanction of termination of employment was not imposed irrespective of her subsequent compliance. In general terms, the obligation of an employee to comply with a lawful and reasonable direction is deeply embedded in every employment relationship. It is a fundamental requirement, and any breach of that requirement is liable to shatter the trust required to sustain the employment relationship.

[46] Ms Huntington can be grateful her employer has elected to impose a lighter sanction and has been prepared to give her an opportunity to continue her employment…

Order

  1. [61]
    I make the following order:
  1. The decision appealed against is confirmed.

Footnotes

[1] J. D. Farag.

[2] Acting Manager Environmental Health Services, CHHHS.

[3] Correspondence from CHHHS to Mr Pitman, 6 January 2022, 1.

[4] Email from Mr Pitman to CHHHS, 19 January 2022.

[5] Correspondence from Mr Pitman to CHHHS, 31 January 2022, 10 – 11.

[6] Correspondence from Mr Pitman to CHHHS, 31 January 2022, 10 – 11.

[7] Industrial Relations Act 2016 (Qld) s 562B; Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018), 5.

[8] Industrial Relations Act 2016 (Qld) s 562B(3).

[9] Ibid s 562C.

[10] [2022] QIRC 290, [42] – [46].

Close

Editorial Notes

  • Published Case Name:

    Pitman v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Pitman v State of Queensland (Queensland Health)

  • MNC:

    [2022] QIRC 399

  • Court:

    QIRC

  • Judge(s):

    McLennan IC

  • Date:

    17 Oct 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
Huntington v State of Queensland (Queensland Health) [2022] QIRC 290
2 citations
Jump To
Cite 1 - [2022] QIRC 290
Cite 2 - [2022] QIRC 290

Cases Citing

No judgments on Queensland Judgments cite this judgment.

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