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  4. Elsworthy v State of Queensland (Queensland Ambulance Service) - [2022] QIRC 412

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Elsworthy v State of Queensland (Queensland Ambulance Service)[2022] QIRC 412

Elsworthy v State of Queensland (Queensland Ambulance Service)[2022] QIRC 412

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Elsworthy v State of Queensland (Queensland Ambulance Service) [2022] QIRC 412

PARTIES:

Elsworthy, Melanie Brooke

(Appellant)

v

State of Queensland (Queensland Ambulance Service)

(Respondent)

CASE NO:

PSA/2022/546

PROCEEDING:

Public Service Appeal – Appeal against a fair treatment decision

DELIVERED ON:

28 October 2022

MEMBER:

Hartigan IC

HEARD AT:

On the papers

ORDER:

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

CATCHWORDS:

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

LEGISLATION:

Ambulance Service Act 1911 (Qld) s 41

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

Public Service Act 2008 (Qld), s 194

QAS Human Resource Procedure – COVID-19 Vaccination Requirements

QAS HR Policy Employee COVID-19 Vaccination Requirements cl 1, cl 2, cl 3 and 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]
    Ms Melanie Brooke Elsworthy is employed by the State of Queensland (Queensland Ambulance Service) ('the QAS'), in the position of Advanced Care Paramedic II.
  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, Ms Elsworthy's employment as an Advanced Care Paramedic falls within a high-risk group of QAS employees that are required to be vaccinated against COVID-19.
  1. [3]
    The QAS HR Procedure provides that an existing employee who falls 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, Ms Elsworthy applied for an exemption to the mandatory vaccine requirements, on the basis of identifying a 'recognised medical contraindication to the COVID-19 vaccine' and 'other exceptional circumstances'. Ms Elsworthy stated that she had been made aware of 'changes' to the Department's policy regarding COVID-19 vaccination and pregnancy recommendations. Ms Elsworthy requested to have these proposed changes clarified until the 'dust settles'. Although she indicated that she would like her exemption considered on a medical basis, Ms Elsworthy was 'not sure if this applies'. In the exemption application, Ms Elsworthy indicated that she was seeking advice from Kennedy Spanner Lawyers regarding her pregnancy concerns.
  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, Ms Elsworthy was provided with an opportunity by the QAS to offer any updated or additional information in support of her existing application. However, on 7 February 2022, Ms Elsworthy advised that she wished for her exemption application to be considered with no further amendments.[1]
  1. [7]
    By letter dated 17 February 2022, the QAS determined to refuse Ms Elsworthy's exemption application.
  1. [8]
    On 1 March 2022, Ms Elsworthy requested an internal review of the decision and in her request put several proposals to the QAS which included regularly undertaking Rapid Antigen Testing and wearing appropriate Personal Protective Equipment, social distancing, no patient contact, relief duties and working from home.
  1. [9]
    By letter dated 8 April 2022, the QAS advised Ms Elsworthy that it had confirmed the decision dated 17 February 2022 and that her 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 Ms Elsworthy to receive the required dose of a COVID-19 vaccine and provide written confirmation that she had received the required dose within seven (7) days of receipt of the decision ('the direction'). The QAS further advised Ms Elsworthy that should she fail to follow the direction, she may be liable for disciplinary action pursuant to 18A of the Ambulance Service Act 1991 (Qld) ('the Ambulance Service Act').
  1. [10]
    On 29 April 2022, Ms Elsworthy appealed the decision of the QAS and relies on the following grounds in support of her appeal, as relevantly summarised:
  1. (a)
    Ms Elsworthy contends that the prospect of losing her career, which would affect her ability to meet her financial obligations, would be considered tantamount to coercion, duress, pressure and undue influence. Ms Elsworthy refers to the QAS Clinical Practice Guidelines which states that for consent to be valid it needs to be free from coercion, duress, pressure or influence by any third party. In addition to this, Ms Elsworthy contends that informed consent is integral to the Australian Charter of Healthcare Rights, and is recognised in Professional Codes of Conduct and the National Safety and Quality Health Service Standards;
  2. (b)
    Ms Elsworthy contends that the rate of transmission and infection is equal between those who are vaccinated and unvaccinated despite Mr John Hammond, who is the Acting Assistant Commissioner of Strategic Operations of QAS, stating that the vaccination is the least restrictive means to keep everyone safe;
  3. (c)
    the COVID-19 vaccines cannot be considered safe and effective as there are numerous studies from reputable government resources that point to the contrary;
  4. (d)
    the Queensland Government has compared catching COVID-19 with the common cold and therefore mandates of this nature should not be considered mandatory, especially with the easing restrictions surrounding isolation requirements, international travel and what constitutes a close contact;
  5. (e)
    the COVID-19 vaccine mandate is unethical, unlawful and discriminatory; and
  6. (f)
    the decision of other governmental agencies to not subject their employees to COVID-19 vaccinations, in particular the Queensland Fire and Emergency Services (QFES).
  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 Ms Elsworthy's 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' and relevantly referred to the following matters:

  • You were made aware of potential changes to Queensland Health's policy regarding COVID-19 vaccination with respect to "pregnancy recommendations".
  • You indicated that until the 'dust settles' on the above, you wanted additional time to have those recommendations clarified.

I note that Mr Clarke considered your concerns and addressed these in his letter to you dated 17 February 2022.

You have referred to the following matter in your internal review request dated 1 March 2022 with respect to the requirement to be vaccinated against COVID-19:

  • breach of your human rights and voluntary consent;
  • lack of long-term data confirming the safety of the COVID-19 vaccination during pregnancy and in relation to children born following maternal vaccination;
  • unreasonableness given information provided by the Therapeutic Goods Administration;
  • similarity between the current view regarding COVID-19 vaccine and the historical view regarding thalidomide;
  • ineffectiveness of the COVID-19 vaccine ay preventing infection and transmission of COVID-19;
  • evidence from "hundreds" of emerging peer-reviewed studies suggesting risk of COVID-19 vaccination outweighs risk of infection including in the context of the "mild" Omicron variant;
  • herd immunity making it unnecessary for you to receive the COVID-19 vaccine;
  • the inconsistency between the respective approaches between QAS and QFES in circumstances where officers from ach agency work alongside each other;
  • efficacy of alternative methods to manager risk of COVID-19, including RAT testing, PPE, social distancing, non-patient contact roles and alternative work locations;
  • proposal regarding you working alternative duties from a different location.

My consideration of the various grounds raised by you in your internal review requests are outlined below.

Human rights and informed consent

You have indicated that the lawful direction requiring you to receive the first dose of a COVID-19 vaccine is in direct conflict with your human rights. Although you have not specifically referred to a particular right or rights as described in the Human Rights Act 2019, I understand you are concerned about a breach of the right to protection from torture and cruel, inhuman or degrading treatment – specifically the prohibition on a person being subjected to medical or scientific experimentation or treatment without the person's full, free and informed consent.

Please be advised that the decision 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 impact on human rights. The decision does not itself compel a person to be vaccinated, but it does impose employment consequences upon people who perform roles within the QAS that require vaccination, unless certain extenuating circumstances apply.

Queensland Health's position is that the impact of the decision upon human rights, to the extent that these are impacted, are reasonably justified. The purpose of the requirements to be vaccinated in the QAS HR Policy includes the maintenance of a proper and efficient health system in a time of a global pandemic. Your role and function are of great important to this objective within the organisation. It should be noted that there is no other reasonably practicable, effective and less restrictive way, to achieve this purpose in the current environment of a global pandemic.

When weighted against the broader public health risks and requirements, I am satisfied that any limits Mr Clarke's decision imposed on your human rights were justified by the need to ensure the readiness of the health system in responding to the COVID-19 pandemic, and in the interests of protecting employees, patients and the community.

Safety

You have raised concerns about the safety and reliability of the COVID-19 vaccines, particularly in the context of pregnancy and fertility.

Queensland Health's position is that the COVID-19 vaccinations are safe and reliable, including in the context of pregnancy and fertility. 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 around the world (including the TGA) demonstrates that the COVID-19 vaccines are safe and effective.

I note that Mr Clarke also referred to medical advice that recommends that women planning a pregnancy are fully vaccinated against COVID-19 and provided references to where you could seek further guidance and information on this advice, namely the Royal Australian and New Zealand Society of Obstetricians and Gynaecologists and the fertility Society of Australia.

While I acknowledge your concerns, I concur with Mr Clarke's assessment that these concerns did not constitute sufficient grounds for an exemption from the requirement to be vaccinated.

Balancing risk in context of Omicron variant

You suggest that risk of COVID-19 vaccination outweighs the risk of infection including in the context of the Omicron variant and her immunity.

Evidence from around the world demonstrates not only the safety of the COVID-19 vaccine, but the very high- level efficacy of this vaccine. Vaccination reduces the risk of hospitalisation and death from COVID-19 by over 90%, when compared to those who are unvaccinated. Vaccination also means that staff are less likely to transmit the virus to others, including importantly, to our sometimes-immunocompromised patients.

I am mindful that in the context of the Omicron variant, Queensland is transitioning to an environment where COVID-19 is endemic resulting in a much higher probability that every Queenslander will eventually be exposed to COVID-19. In recognition of the risks posed by the virus, as well as workplace health and safety obligations incumbent upon both the organisation and employees, Queensland Health and QAS have adopted the reasonable mitigation strategy of requiring employees to be vaccinated against COVID-19. I do not accept your assertions in this regard.

Approach of other governmental agencies to staff COVID-19 vaccination

I note that you have raised concerns about Queensland Fire and Emergency Services (QFES) staff who work at the Kedron Emergency Services Complex and other locations not being subject to the COVID-19 vaccination requirement. Please be advised that the decision about whether to implement a COVID-19 vaccine requirement at QFES is a matter for the chief executive of QFES to consider. A decision that may be made by an accountable officer from another organisation (whether this be from the Queensland Government or otherwise) has no bearing on the lawfulness, reasonableness, or otherwise of the decision of Queensland Health and the QAS to implement the employee COVID-19 vaccination requirements within the health workforce having regard to the services provided, workforce management requirements, and the various other legislative or employment arrangements that will exist and be unique to each organisation. Different workforce arrangements are indeed not unusual in this context and do not constitute grounds for an exemption to the vaccination requirements of your role.

Alternative measure to mitigate risks

I note your view about the alternative measures that could be implemented to mitigate the risks posed by the COVID-19 virus.

The requirement for you to be vaccinated against COVID-19 was implemented in recognition of the fact that vaccination, when used in combination with other risk control measures such as PPE and testing where appropriate, constitutes the most effective and reliable risk control measures that are currently reasonably practicable. Therefore, I consider that vaccination is an essential part of any risk mitigation strategy. To this end, I am cognisant of the obligations for employers under the Work Health and Safety Act 2011 to ensure so far as reasonably practicable the health and safety of workers and other persons.

You also propose as a resolution to this matter, approving your exemption and allowing you to return to your role. Alternatively, you suggest that the QAS should approve you working from station, either on light duties or as a relief Officer in Charge, or failing that, allowing you to permanently work from home. This is proposal is not considered practical, reasonable or appropriate for an Advanced Care Paramedic in the circumstances nor is your proposal considered grounds for an exemption from the requirement to be vaccinated against COVID-19 under the requirements of the QAS HR Policy that applies to you in your role.

  1. [17]
    The decision maker also considered the effects of the decision on Ms Elsworthy's human rights as follows:

Human Rights considerations

The QAS HR Policy makes vaccination compulsory for certain workers and others in specific circumstances to protect the community during the pandemic. I acknowledge that my decision may engage a number of your human rights, including your right to recognition and equality before the law, and your right to take part in public life (through employment in the public service). I am satisfied that any limits on human rights engaged are justified by the need to ensure the readiness of the health system in responding to the COVID-19 pandemic, to protect the lives of employees, patients and the community they serve and to discharge the QAS's legal obligations, including under the Work Health and Safety Act 2011. I do not consider there is any less restrictive means, other than vaccination, which would sufficiently ensure your safety and the safety of other staff and patients.

Relevant legislation and policy

  1. [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 –
  1. (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, Ms Elsworthy 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]
    Ms Elsworthy's written submissions[6] are largely in the same terms as the written submissions that were attached to her appeal notice, with the addition of submissions surrounding options for redeployment.  
  1. [27]
    Ms Elsworthy's submission in relation to the appeal have been categorised as follows:
  1. (a)
    safety and efficacy;
  2. (b)
    consent; and
  3. (c)
    options for redeployment.
  1. [28]
    The QAS submits that the decision to confirm the refusal of Ms Elsworthy's application for exemption from compliance with the requirement to receive a COVID-19 vaccination was fair and reasonable. In this regard, the QAS contend that the QAS HR Policy is based on the Chief Health Officer's directions regarding workers in a healthcare setting and hospital entries and that Ms Elsworthy on the basis that she is a healthcare worker.
  1. [29]
    As noted above, the decision subject of the appeal is a decision confirming an earlier decision to refuse Ms Elsworthy's request for an exemption. The Appellant's position has evolved some what from her initial request and it is relevant to consider the terms of the Appellant's request which was in the following terms:

I have been made aware of potential changes to Qld Health's policy as it relates to the covid-19 vaccine + pregnancy recommendations. So, until the "dust settles" on this current review on pregnancy-based recommendations I want the time to have this clarified. I ticked the medical box as well as I'm not sure if this applies given potential QHealth policy recommendation changes. Also seeking advice from Kennedy Spanner Lawyers 20 pregnancy concerns.

  1. [30]
    The exemption request form identifies three (3) 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]
    Ms Elsworthy claims that she has provided two separate written medical exemptions from two treating physicians, however the QAS have not received any evidence to support a medical contraindication which would support an exemption request. The exemption request was subsequently refused. 
  1. [32]
    In seeking an internal review of the decision Ms Elsworthy raised a number of matters that went beyond her initial request and also proposed alternative working arrangements which would permit the Appellant to work without having to comply with the QAS vaccine direction.
  1. [33]
    The Appellant concludes her submissions in the internal review with the phrase "good science is questioning the science".
  1. [34]
    The internal review decision which is the decision subject of the appeal confirmed the decision to refuse Ms Elsworthy's exemption request.
  1. [35]
    I will address the appeal having regard to the grounds of appeal.

Safety and efficacy

  1. [36]
    The appeal notice and written submissions filed by Ms Elsworthy clearly indicate that she has concerns about the safety and efficacy of the COVID-19 vaccines, particularly in the context of pregnancy and fertility. Ms Elsworthy submits that there are numerous studies regarding the emerging and serious adverse effects of the vaccine. Further to this, Ms Elsworthy contends that the rate of transmission and infection is equal between those who are vaccinated and unvaccinated, and therefore the COVID-19 vaccine is not effective. 
  1. [37]
    The decision maker notes that many of Ms Elsworthy's concerns relate to the safety of the COVID-19 vaccines and notes that the COVID-19 vaccines has gone through the usual assessments, including phase one, two and three trials and reviews by multiple licensing bodies including the Therapeutic Goods Administration and are in routine clinical use. The decision maker also referred to medical advice that recommends that women planning a pregnancy are fully vaccinated against COVID-19.
  1. [38]
    It is clear from Ms Elsworthy's submissions in relation to this appeal that she is hesitant to be administered one of the COVID-19 vaccines due to her concerns regarding the safety and efficacy of the vaccines. Ms Elsworthy's hesitancy seems to stem, inter alia, from her concern as to whether the vaccine was safe to be administered whilst pregnant. 
  1. [39]
    Vaccine hesitancy does not constitute a ground of exceptional circumstances that would support an exemption application. Whilst Ms Elsworthy is entitled to hold the view she does in relation to the safety and efficacy of the COVID-19 vaccines, it is not incumbent on the QAS to accept Ms Elsworthy's view.[7]
  1. [40]
    In this regard, the QAS has had regard to the fact the COVID-19 vaccinations have been approved by the TGA and ATAGI. Given the regulatory role of the TGA and ATAGI, I consider it fair and reasonable for the QAS to rely on the TGA's approval of the vaccines to support its conclusions that the vaccines are safe and effective. Ms Elsworthy submits that her proposed willingness to regularly undertake Rapid Antigen Testing, wear appropriate Personal Protective Equipment and to work from home as an alternative to vaccination.
  1. [41]
    The decision maker responded to this submission in the decision and concluded that Ms Elsworthy is not entitled to determine how she will comply with the QAS HR Policy. Further, the decision maker found that there are no less restrictive means other than vaccination which are open to the QAS to keep QAS employees and persons accessing healthcare safe.
  1. [42]
    I consider that it was open, on the material available to the decision maker, to determine that Ms Elsworthy's alternative proposal was not a means by which she could avoid compliance with the QAS HR Policy. In the circumstances, I consider that Ms Elsworthy has failed to establish that the decision was not fair and reasonable on safety and efficacy grounds.

Options for redeployment

  1. [43]
    Ms Elsworthy describes herself as someone 'with many attributes that would be considered valuable to an employer' as she 'is both an Accredited Practising Dietitian and Nutritionist and Veterinary Nurse with over 10 years' experience in both fields'.
  1. [44]
    Given her experience, Ms Elsworthy submits that there are alternative duties that she can engage in which do not require a COVID-19 vaccination. In particular, Ms Elsworthy submits that she should be allowed the opportunity to work from the station, either on light duties or as a relief Officer in Charge. Alternatively, if those options were not available that QAS should allow Ms Elsworthy to work permanently from home.
  1. [45]
    The QAS submit that it is not possible for Ms Elsworthy to be provided with alternative working arrangements because redeployment options are limited. Further to this, the proposals for redeployment suggested by Ms Elsworthy are not 'considered practical, reasonable or appropriate for an Advanced Care Paramedic'.
  1. [46]
    Although there was a brief opportunity for Ms Elsworthy to temporarily work from home on the Emergency Business Continuity Plan for the QAS in February 2022, that opportunity was only ever intended to be temporary. Given the clinical nature of Ms Elsworthy's role as an Advanced Care Paramedic, I accept that she would be required to attend the workplace. I consider that it was reasonable to conclude that there were no reasonable alternative roles or adjustments available particularly in consideration of Ms Elsworthy's role as an Advanced Care Paramedic.

Consent

  1. [47]
    Ms Elsworthy contends that she has been subjected to undue pressure, coercion and manipulation in respect to giving consent to receive the COVID-19 vaccine and that this renders the QAS HR Policy as 'immoral, unethical and unlawful'.
  1. [48]
    The QAS denies Ms Elsworthy's contention that she has been the subject of undue pressure, coercion and manipulation in receiving the COVID-19 vaccine. The QAS submit that Ms Elsworthy has not been deprived of free and informed consent, nor is she obliged to work for the QAS. The QAS submit that Ms Elsworthy remains free not to consent to receiving a COVID-19 vaccine, however, a consequence of this choice is that Ms Elsworthy cannot perform her duties as an Advanced Care Paramedic. The QAS relies on Kassam v Hazzard; Henry v Hazzard[8] in this regard.
  1. [49]
    Ms Elsworthy has not consented to receiving the vaccine and accordingly, she has not been administered the vaccine. Ms Elsworthy has exercised her choice not to be vaccinated and there is no evidence before me that she has been denied that opportunity. However, in exercising that choice Ms Elsworthy has also chosen to not comply with her employer's direction. There are potential consequences that may follow the exercise of that choice including the commencement of disciplinary processes due to her failure to comply with the QAS HR Policy. That is no different to any other circumstances in which an employee chooses to, or to not comply with a lawful and reasonable request of their employer. Accordingly, there is no evidence before me that Ms Elsworthy was subjected to undue pressure, coercion or manipulation in respect to giving consent to receive the COVID-19 vaccine and, relevantly, Ms Elsworthy has not consented to being administered the COVID-19 vaccine.
  1. [50]
    I do not consider that Ms Elsworthy's submissions in relation to consent has established the decision was not fair and reasonable.

Other matters raised by the Appellant

Lack of procedural fairness

  1. [51]
    For completeness, I note Ms Elsworthy raises a matter in her submissions in reply,[9] which could be inferred as alleging a lack of procedural fairness.
  1. [52]
    Ms Elsworthy submits that the QAS Human Resource Procedure – COVID-19 Vaccination Requirements ('the QAS HR Procedure') was replaced by the QAS HR Policy after she submitted her exemption application, which indicates that the replacement was unfair because the QAS were 'able to change the rules whilst the game is in play'.
  1. [53]
    A review of the material filed in this matter confirms that the QAS HR Procedure was replaced by the QAS HR Policy on 31 January 2022, during the internal review process of Ms Elsworthy's exemption application. The QAS wrote to Ms Elsworthy and provided her with three (3) options in relation to how she would like to progress her review, having regard to the newly implemented QAS HR Policy. By reply email dated 7 February 2022, Ms Elsworthy determined to continue with the exemption application, which was to be determined under the Policy and elected for her exemption application to be considered with no further amendments.
  1. [54]
    I consider that Ms Elsworthy was provided with an opportunity to provide any additional information she considered to be relevant to the newly implemented QAS HR Policy.
  1. [55]
    Accordingly, I do not consider that Ms Elsworthy has suffered any prejudice as a result of the change from the QAS HR Procedure to the QAS HR Policy during the internal review process.

Approach of other governmental agencies to staff COVID-19 vaccination

  1. [56]
    Ms Elsworthy also raises concerns about Queensland Fire and Emergency Services ('QFES') because they do not have a mandatory COVID-19 vaccination direction in place. In particular, Ms Elsworthy contends that the different workforce arrangements 'serves to highlight double standards' and that it is discriminatory to require her to be vaccinated as a QAS employee because QFES employees are not subject to this same requirement.
  1. [57]
    In response to these concerns, the QAS submits that the decision about whether to implement a COVID-19 vaccine requirement at QFES is a matter for the chief executive officer to consider. Further, the QAS state that the decisions of the QFES have 'no bearing on the lawfulness, reasonableness, or otherwise the decision of Queensland Health and the QAS to implement the employee COVID-19 vaccination requirement'.
  1. [58]
    I do not accept that the COVID-19 vaccination requirements for other agencies, including QFES, to be relevant to my consideration as to whether the decision with respect to Ms Elsworthy is fair and reasonable.

Conclusion

  1. [59]
    For the foregoing reasons, I dismiss the appeal and confirm the decision subject to the appeal.

Order

  1. [60]
    Accordingly, I make the following order:

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

Footnotes

[1] See Attachment 3 to the QAS Submissions.

[2] See the Public Service and Other Legislation Amendment Act 202 (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 30 May 2022

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

[8] [2021] NSWSC 1320, [63]. 

[9] Filed 14 June 2022.

Close

Editorial Notes

  • Published Case Name:

    Elsworthy v State of Queensland (Queensland Ambulance Service)

  • Shortened Case Name:

    Elsworthy v State of Queensland (Queensland Ambulance Service)

  • MNC:

    [2022] QIRC 412

  • Court:

    QIRC

  • Judge(s):

    Hartigan IC

  • Date:

    28 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
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
Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320
1 citation
Jump To
Cite 1 - [2021] NSWSC 1320

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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