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  4. Czaja v State of Queensland (Queensland Health) - [2022] QIRC 489

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Czaja v State of Queensland (Queensland Health)[2022] QIRC 489

Czaja v State of Queensland (Queensland Health)[2022] QIRC 489

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Czaja v State of Queensland (Queensland Health) [2022] QIRC 489

PARTIES: 

Czaja, Jaroslaw

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

PSA/2022/966

PROCEEDING:

Public Service Appeal – Appeal against a fair treatment decision

DELIVERED ON:

20 December 2022

MEMBER:

HEARD AT:

Pidgeon IC

On the papers

ORDER:

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

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – public service appeal – external review – where the appellant applied for an exemption from Health Employment Directive No 12/21 Employee COVID-19 vaccination requirements – where appellant was denied an exemption from complying with directive – appellant sought internal review – internal review confirmed decision not to grant exemption – whether internal review decision was fair and reasonable

LEGISLATION:

Directive 11/20 Individual employee grievances cl 9

Employment Directive No 12/21 cls 1, 6, 7, 8, 9, 10

Health Employment Directive No 12/21 Employee COVID-19 vaccination requirements

Hospital and Health Boards Act 2011

Industrial Relations Act 2016 ss 562B, 562C

Public Service Act 2008 s 194

CASES:

Bax v State of Queensland (Queensland Health) [2022] QIRC 305

Brassell-Dellow & Ors v State of Queensland (Queensland Police Service) [2021] QIRC 356

Donnelly v State of Queensland (Queensland Health) [2022] QIRC 149

Radev v State of Queensland (Queensland Police Service) [2021] QIRC 414

Richter v State of Queensland (Queensland Health) [2022] QIRC 210

Slykerman v State of Queensland (Queensland Health) [2022] QIRC 039

Stevens v Epworth Foundation [2022] FWC 593

Stys v State of Queensland (Queensland Ambulance Service) [2022] QIRC 265

Tilley v State of Queensland (Queensland Health) [2022] QIRC 002

Tribe v State of Queensland (Department of Education) [2022] QIRC 203

Reasons for Decision

Introduction

  1. [1]
    Mr Jaroslaw Czaja (the Appellant) is employed by the State of Queensland (Queensland Health) (the Respondent) as a Senior Biomedical Technician, Biomedical Technology Services (BTS) at Cairns Hospital.
  1. [2]
    On 30 September 2021, Mr Czaja sought an exemption from Health Employment Directive No 12/21 Employee COVID-19 vaccination requirements (HED 12/21) under the grounds of 'other exceptional circumstances'. The exemption application was declined by Ms Barbara Phillips on 21 January 2022.
  1. [3]
    On 1 November 2021, Mr Czaja was placed on 'Special Paid Discretionary Leave' and this continued until 12 July 2022.[1] Mr Czaja is currently on suspended from duty on normal remuneration.
  1. [4]
    On 17 February 2022, Mr Czaja's representative, Supportah, requested an internal review of the decision.
  1. [5]
    On 10 October 2022, Mr Czaja received an internal review decision confirming a decision not to approve his application for an exemption from compliance with HED 12/21which requires relevant employees to receive the required doses of the COVID-19 vaccination.
  1. [6]
    Mr Czaja appeals the internal review decision dated 10 October 2022 and received by him on 11 October 2022.

Is the Appellant entitled to appeal?

  1. [7]
    Section 194 of the Public Service Act 2008 (the PS Act) lists various categories of decisions against which an appeal may be made. Section 194(1)(eb) provides that an appeal may be made against 'a decision a public service employee believes is unfair and unreasonable (a fair treatment decision)'.
  1. [8]
    The appeal notice was filed with the Industrial Registry on 1 November 2022 within 21 days of the decision being received on 11 October 2022. I am satisfied that the Appellant may appeal the decision.

Appeal Principles

  1. [9]
    Section 562B(3) of the Industrial Relations Act 2016 (the IR Act) provides that 'the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable'.
  1. [10]
    Findings made in the decision which are reasonably open on the relevant material or evidence before the decision maker, should not be expected to be disturbed on appeal.
  1. [11]
    A public service appeal is not an opportunity for a fresh hearing, but a review of the decision arrived at by the decision maker. To determine the appeal, I will consider whether the decision received by Mr Czaja on 10 October 2022 was fair and reasonable.
  1. [12]
    In deciding this appeal, s 562C(1) of the IR Act provides that the Commission may:
  1. (a)
    confirm the decision appealed against; 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.

Directive 12/21

  1. [13]
    Directive 12/21 sets out the mandatory vaccination requirements for all current and prospective health service employees employed under the Hospital and Health Boards Act 2011 (the HHB Act).
  1. [14]
    Clause 1 of Directive 12/21 provides that compliance with the Directive is mandatory. Clause 2 provides that the purpose of Directive 12/21 is to outline COVID-19 vaccination requirements for existing and prospective employees employed in the identified high-risk groups designated in the Directive.
  1. [15]
    Clause 6 of Directive 12/21 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 Directive 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. [16]
    Clause 7 of Directive 12/21 sets out the requirements for vaccination. Relevantly, cl 7.1 states:

In acknowledgment of the risks posed by the COVID-19 virus to the health and safety of Queensland Health employees, patients and the broader community, clauses 8 and 9 of this Directive require all existing and prospective employees who are or are to be employed to work in the cohorts as categorised in accordance with Table 1 (below), to be vaccinated as a condition of employment, subject to certain limited exemptions described in clause 10 of this Directive.

  1. [17]
    Clause 8 of Directive 12/21 sets out the mandatory vaccine requirements for existing employees as follows:

8.1  Existing employees currently undertaking work or moving into a role undertaking work listed in a cohort of Table 1, must:

a. have received at least the first dose of a COVID-19 vaccine by 30 September 2021; and

b.  have received the second dose of a COVID-19 vaccine by 31 October 2021.

  • An existing employee must provide to their line manager or upload into the designated system:
  1. 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. evidence of vaccination confirming that the employee has received the second dose 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 vaccine.
  • An existing employee who is required to have received a first or second dose of a COVID-19 dose at an earlier date under a Chief Health Officer public health direction must be vaccinated by the dates specified in the public health direction.
  • The requirements of this clause 8 do not apply to existing employees who have been granted an exemption under clause 10 of this Directive.
  1. [18]
    Clause 10 of Directive 12/21 provides that where an employee is unable to be vaccinated, and exemption may be granted as follows:

10.1 Where an employee is unable to be vaccinated they are required to complete an exemption application form.

10.2 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.

10.3 If an existing employee is granted an exemption, they do not have to comply with clause 8 or 9 of this Directive for the duration of that exemption.

The Appeal

  1. [19]
    This appeal requires me to decide if the internal review decision of Mr Damian Green, Deputy Director-General, eHealth Queensland, Chief Information Officer, Queensland Health dated 10 October 2022 was fair and reasonable.

The Internal Review Decision

  1. [20]
    The internal review decision lists the documentation and information Mr Green considered in undertaking the review:
  • HED 12/21
  • Directive 11/20 Individual employee grievances
  • HR Policy E12 Individual employment grievances
  • Extract from Safe Work Australia website with areas of concern highlighted attached to an email from Mr Czaja on 15 September 2021
  • An email from Mr Czaja dated 20 September 2021
  • Mr Czaja's COVID-19 Mandatory Vaccination Exemption Request application letter dated 30 September 2021
  • 'Must Read' email from the Director-General dated 25 October 2021
  • Mr Czaja's COVID-19 Mandatory Vaccination Exemption Request outcome decision from Barbara Phillips, dated 21 January 2022
  • The letter from Industrial Relations Claims (Supportah Australia) dated 17 February 2022
  • Department of Health HR Delegations Manual S27.2
  • Senior Biomedical Technician – Medical Imaging role description
  1. [21]
    Mr Green confirms Ms Phillips was the appropriate delegate to consider the application for exemption request and to provide Mr Czaja with a decision.  Mr Green also goes on to confirm that he holds appropriate delegation to undertake an internal review in accordance with Directive 11/20, Stage 2 – Internal Review.
  1. [22]
    Mr Green goes on to state that per cl 9.2(d) of Directive 11/20, he is required to consider whether the decision to decline the exemption request was fair and reasonable in the circumstances.   Mr Green notes that the reason for application for internal review is that Mr Czaja believes that he has grounds for an exemption based on other exceptional circumstances.
  1. [23]
    At pages 2 and 3 of the letter, Mr Green states that in reviewing the decision of Ms Phillips, he has also taken into account the additional correspondence Mr Czaja has provided related to his exemption request and concerns.  Mr Green goes on to discuss matters raised by Mr Czaja, in summary:
  • Mr Czaja's enquiry as to whether the mandate applies to BTS technicians like himself who do not have contact with patients;
  • Information highlighted from Safe Work Australia about vaccine mandates;
  • Information and questions asked by Mr Czaja in an email dated 20 September 2021;
  • Concerns raised by Mr Czaja in his original vaccination exemption application dated 30 September 2021.[2]
  1. [24]
    Mr Green then notes the response provided by Ms Philips on 21 January 2022. In that letter, Ms Phillips informed Mr Czaja that the Committee had considered all of his information and supporting evidence and the requirements of his role.  Ms Phillips also informed Mr Czaja that the Committee had recommended that his request for exemption is denied as he had not provided any evidence of an exceptional circumstance such that the policy intent would be outweighed. Ms Phillips stated that she had accepted the recommendation of the Committee.
  1. [25]
    Mr Green says that he has considered the issues raised by Industrial Relations Claims (Supportah Australia) in the letter dated 17 February 2022.[3]
  1. [26]
    Mr Green then says:

You are employed as a Senior Biomedical Technician for Biomedical Technology Services.  This role requires you to work in a hospital and/or health facility where clinical care or support is provided and has been assessed as Group 2 employee cohort under the HED 12/21.  On that basis, you are subject to the mandatory vaccination requirements unless you have an approved exemption.

  1. [27]
    Mr Green then goes on to address Mr Czaja's concerns regarding the safety of the COVID-19 vaccines.  Mr Green relevantly states:

I acknowledge that you have stated you are not against vaccination.  However, as part of your application for an exemption from the requirement to be vaccinated against COVID-19, you raised concerns in relation to the safety of the COVID-19 vaccines.  Your representatives, Supportah Australia, also raised vaccine safety concerns on your behalf.

These concerns indicate that you may be 'vaccine hesitant'.  Vaccine hesitancy refers to a delay in acceptance or a refusal of vaccines despite availability, and includes concerns about the safety, efficacy or reliability of the COVID-19 vaccines.

The Therapeutic Goods Administration (TGA) has advised that 'Before any COVID-19 vaccine is approved for use in Australia, it will be subject to the well-established and rigorous assessment and approval processes.  All COVID-19 vaccine applications are being treated with the greatest priority as part of the Department of Health's response to the pandemic.  Under normal circumstances, TGA's assessment (for both provisional and general registration) begins once all information to support registration is available.   For COVID-19 vaccines, the TGA has agreed to accept rolling data to enable early evaluation of data as it comes to hand.

With rolling submissions, collaboration with international regulators, and proactively working with sponsors, it is expected the evaluation of COVID-19 vaccines will be significantly expedited without compromising on our strict standards of safety, quality and efficacy.'

Queensland Health's position is the COVID-19 vaccination is safe and reliable.  The safety and reliability of the COVID-19 vaccination program is supported by the fact that it has been available and operating in Australia for some time during 2021 under the management of the TGA.

  1. [28]
    On page 5 of the letter, Mr Green addresses Mr Czaja's concerns regarding a risk assessment. Mr Green states:

… 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 has adopted the reasonable risk mitigation strategy of requiring employees to be vaccinated against COVID-19. This strategy is implemented through the HED 12/21.

  1. [29]
    Mr Green notes Mr Czaja's advice that he has received the vaccines as required in his role description, which states as a condition of employment that he may be required to be, and remain vaccinated against Hepatitis A & B, Measles, Mumps, Pertussis, Rubella and Varicella and may also require Japanese Encephalitis and Rabies vaccinations and says:

Whilst your role description does not explicitly state COVID-19, it does include the following as amongst the key responsibilities in your role:

  • Adhere to defined service quality standards, health and safety policies and procedures relating to the work being undertaken to ensure high quality, safe services and workplaces.
  • Deliver advanced technology support services with minimal supervision including but not limited to preventive maintenance, repairs, installation, commissioning, de-installation and general technical support.

It is, therefore, reasonable, given your work environment that you are also vaccinated against COVID-19. It is also reasonable, that whilst you may not have direct contact with patients, you are required to work in health facilities that deliver patient care, and therefore require vaccination.

  1. [30]
    Mr Green goes on to address Mr Czaja's concerns relating to consultation.  Mr Green informs Mr Czaja that the Department complied with its obligations under the Workplace Health and Safety Act 2011 (the WHS Act) to consult in relation to the introduction of the vaccine mandate and provides information about the consultation which was undertaken with registered unions representing employees employed within the Department and Hospital and Health Services. Mr Green explains that 'given the number, various locations, and various working arrangements of the employees to whom the HED 12/21 applies and pre-existing consultative forums for these employees, the WHS Act did not require one-on-one or personalised consultation with all workers affected by the HED 12/21 and/or a representative of their choosing.'
  1. [31]
    On page 6 of the letter, Mr Green addresses Mr Czaja's concerns about his human rights. Mr Green explains that 'the decision does not itself compel a person to be vaccinated, but it does impose employment consequences upon people who are not vaccinated in circumstances unless certain extenuating circumstances apply'.  Further, Mr Green states that given the purpose of HED 12/21 includes protecting staff and patients from infection and maintaining a proper and efficient health system during a global pandemic, Queensland Health's 'position is that the impacts of the decision upon human rights, to the extent that these are impacted, are reasonably justified'.  Mr Green says, 'it should be noted that there is no reasonably practicable, effective and less restrictive way to achieve the purpose' of HED 12/21.
  1. [32]
    Mr Green addresses Mr Czaja's concerns about his ability to provided free and informed consent and says that he does not accept that HED 12/21 deprives Mr Czaja of free and informed consent to the COVID-19 vaccinations or that his concerns constitute another exceptional circumstance.  Mr Green says that requirement of vaccination as a condition of employment is 'materially and irreconcilably different from a situation involving coercive medical treatment or circumstances otherwise giving rise to an inability to provide free and informed consent to medical treatment'.  Mr Green states that there is further information about the nature and effect of the vaccination available from Queensland Health and recommends Mr Czaja obtain relevant medical information from his medical practitioner.
  1. [33]
    Mr Green addresses Mr Czaja's concern that his application for exemption was not considered on a 'case-by-case' basis.  Mr Green confirms that Mr Czaja's application was assessed on an individual basis by the Queensland Health Advisory Panel.  Mr Green says that the panel makes a recommendation and the deciding delegate makes the end decision.
  1. [34]
    Finally, Mr Green states:

My decision

In considering the requirements under Directive 11/20 and the actions taken as outlined above, I consider that the decision made by Ms Phillips was fair and reasonable in the circumstances and I confirm that decision.

I have formed this view by considering the actions taken by the delegate….

On balance, I consider that there is no less restrictive means other than vaccination which would sufficiently ensure the safety of yourself, your family, other staff members and patients, as well as ensure the ongoing readiness of the health system to respond to the pandemic.

As such your request for exemption from the COVID-19 vaccine was correctly declined in the circumstances and your role continues to require you to be vaccinated against COVID-19 with a TGA endorsed vaccine as per HED 12/21.

Mr Czaja's Appeal

  1. [35]
    The appeal notice filed on 1 November 2022 contained a request that this matter be placed in abeyance pending the outcome of some other matters which 'consider common issue questions'.[4]
  1. [36]
    The appeal notice also contained the following reasons for appeal:

In addition to the above, the appellant has experienced an internal review that has been entirely procedural, and not dissimilar to the internal review process as explored in Richter v State of Queensland (Queensland Health) [2022] QIRC 210.

  1. [37]
    Mr Czaja says that while he would have appreciated the opportunity for issues to be explored fully in the internal review, the fact remains that there would appear to be insufficient reasoning on the part of Mr Green.

Respondent's submissions

  1. [38]
    The first several paragraphs of the Respondent's submissions set out the background and history of the matter and relevant aspects of this information are largely canvassed above.
  1. [39]
    The Respondent says that on 14 October 2022, Mr Czaja emailed the Department advising he attempted to become vaccinated against COVID-19 but the 'injecting practitioner' refused to administer the vaccine due to his statement that he was 'consenting to this vaccine under serious threat of being sacked'. Mr Czaja asked for advice on how to become vaccinated without breaking the law and risking criminal charges for a person who would administer the COVID-19 vaccine, which he suggested amounted to criminal assault and battery due to a lack of consent.[5]
  1. [40]
    On 14 October 2022, Ms Erin Gillam, Principal Advisor, Workforce Relations and Policy informed Mr Czaja that the Queensland Industrial Relations Commission (QIRC) and the Fair Work Commission (FWC) had found employees are not deprived of the ability to give free and informed consent in respect of receiving the COVID-19 vaccines.  Mr Czaja was advised that he is free to choose not to receive a COVID-19 vaccine and that it was not being forced upon him. Mr Czaja was reminded that COVID-19 vaccination is a condition of his employment and he had been informed of the consequences of not doing so.[6]
  1. [41]
    The Respondent says that the decision to confirm the refusal of the exemption application was fair and reasonable.
  1. [42]
    The Respondent says that HED 12/21 applied to Mr Czaja and it is not in dispute that he has not received a COVID-19 vaccine or provided evidence of having received a COVID-19 vaccine.  Further, the Respondent says that the requirement to receive a COVID-19 vaccine has been consistently found to be a lawful and reasonable direction.[7]
  1. [43]
    The Respondent says that exemptions are considered in accordance with the Department's obligations and have only been approved in exceptional circumstances.  The Respondent says that Mr Czaja's application for exemption was properly considered on the basis of his 'other exceptional circumstances', including his concerns regarding consultation, risk assessment, human rights, consent, and the safety and efficacy of vaccination. Mr Czaja's concerns of adverse reactions did not justify an exemption to the requirements under HED 12/21.[8]
  1. [44]
    The Respondent says that it is not the Department's responsibility to allay Mr Czaja's concerns or anxieties about receiving a COVID-19 vaccine,[9] and that it was not required to provided him with assurances concerning the safety or efficacy of the COVID-19 vaccines.[10]
  1. [45]
    The Respondent says that Mr Czaja provided no evidence of a medical contraindication or any evidence of a medical condition which meant he was unable to be safely administered the current vaccines.[11]  The Respondent says that it is clear that Mr Czaja is vaccine hesitant but that vaccine hesitancy is not an exceptional circumstance.[12]
  1. [46]
    The Respondent notes Mr Czaja's concerns that the COVID-19 vaccinations are experimental or contain ingredients that are 'toxic to the body', but says that the vaccines are not experimental or toxic and that the TGA's approval of relevant vaccines is a matter of public record and is evidence of their safety and efficacy.[13]
  1. [47]
    The Respondent says that there is no lawful basis upon which Mr Czaja could request access to a risk assessment undertaken by the Department in relation to vaccines and proof that he is a heightened risk of transmission.  The Department says that it complied with its obligations under the WHS Act to consult in relation to the introduction of the vaccine mandate and that the consultation included dedicated meetings with registered unions representing employees employed within the Department.  The Respondent notes that registered unions may negotiate with employers, not only on behalf of their members but on behalf of workers who are eligible for membership.  The Respondent states that where registered unions agree with a vaccine mandate, 'consultation reached the level where the directive was not a matter of contention'.[14]
  1. [48]
    The Respondent says that Mr Czaja's human rights were considered by Mr Green and that Mr Green acknowledged his decision may engage or limit a number of his human rights, however, he was satisfied those limits on human rights were justified by the need to ensure the readiness of the health system in responding to the COVID-19 pandemic, and to protect the lives of employees, patients and the communities they serve.

Mr Czaja's submissions

  1. [49]
    I have read all of Mr Czaja's material and submissions. In considering this appeal, I commence from a position that:
  • Directive 12/21 was reasonable and lawful;[15]
  • The Respondent undertook proper consultation prior to implementing HED 12/21;[16]
  • HED 12/21 applied to Mr Czaja in his role;
  • There was no requirement for the Respondent to provide Mr Czaja with a personalised risk assessment addressing his concerns about the vaccine;[17]
  • The COVID-19 vaccines have been deemed safe and effective by the TGA;[18]
  • Vaccine hesitancy is not an 'other exceptional circumstance' justifying an exemption;[19]
  • The direction to be vaccinated does not deprive Mr Czaja of free and informed consent.
  1. [50]
    As a result, I do not intend to set out or address in detail Mr Czaja's submissions regarding his continuing request for a risk assessment; that he does not 'see patients or provide clinical services or support' and does 'not pose any heightened risk of transmission'; and the adequacy of the consultation process. 
  1. [51]
    Mr Czaja makes some submissions which are specific to him as an individual.  Mr Czaja says that he is not refusing to be vaccinated and has 'regularly stated that he will be willing to receive a TGA approved vaccine upon further consultation'. Mr Czaja refers to his previous communication to the Respondent that he would like to make a fully informed and educated decision and that once he is satisfied that there is no threat to his health, he would be 'happy to accept your offer of treatment'.  Mr Czaja says that in the past, he has received all mandated vaccinations as required by the Polish government and that he is 'not anti-vaccination or "refusing to become vaccinated"'.
  1. [52]
    Mr Czaja says that he made a 'clear and genuine attempt to become vaccinated, despite not having clear information in relation to him, his role and his workplace' and that 'the treating practitioner ultimately made the decision to not proceed with the vaccination'.
  1. [53]
    Mr Czaja agrees that he does not have a medical condition that prevents him from getting vaccinated but that he hasn't be provided proper consultation and 'should be granted an exemption until such time a risk assessment has been provided'.
  1. [54]
    I note that per [37] above, Mr Czaja complains that Mr Green's decision has not provided him with adequate reasons for the decision to confirm the refusal to grant an exemption.

Mr Czaja's vaccine exemption application

  1. [55]
    For completeness I have reviewed Mr Czaja's vaccine exemption application dated 30 September 2021 and the correspondence of Ms Phillips informing Mr Czaja that his application for exemption had been refused.
  1. [56]
    The vaccine exemption application form includes reference to Directive 12/21 and clearly states that an exemption will only be granted where the employee has a 'recognised medical contraindication' to the COVID-19 vaccine or 'where the employee has refused the COVID-19 vaccine on grounds of a genuinely held religious belief'.   The form also makes reference to extremely limited circumstances which might preclude the employee from meeting the COVID-19 vaccine requirements but specifically says that 'vaccine hesitancy and conscientious objection, by themselves, are not considered exceptional circumstances'.
  1. [57]
    Page 5 of the form relates to an exemption application on the basis of 'other exceptional circumstances'.  In that section, Mr Czaja does not provide any information personal to himself but says 'see attached file'. The attached file is a one-page letter which raises concerns about consultation, a lack of risk assessment, the safety of the vaccine, health and safety and his human rights.  Mr Czaja states that he is 'unable to receive the COVID-19 vaccination at this time'.

Consideration

  1. [58]
    I have considered all of the material provided to me by way of submissions and attachments, even if I do not directly refer to it.  I have carefully considered the request for internal review and the various pieces of correspondence between Mr Czaja or his representatives and the Respondent. I intend to consider each of Mr Czaja's appeal grounds or submissions as best I can make them out from the material.

Appeal ground: Mr Green's reasons for decision

  1. [59]
    Mr Czaja's appeal notice raises only one detailed ground of appeal and that is that Mr Green's reasons were insufficient and that his 'issues' or 'matters' were not fully considered.
  1. [60]
    In support of this ground of appeal, Mr Czaja refers to the decision of Power IC in Richter v State of Queensland (Queensland Health).[20] I have reviewed that decision and find that the circumstances in that matter, where the Appellant had applied for an exemption on the grounds of a medical condition, are significantly different to those of Mr Czaja.  In Richter, Power IC determined that the decision did not give sufficient reasons as to why the decision-maker had determined to confirm the decision not to give the Appellant an exemption from HED 12/21. That is simply not the case here, where the eight-page decision letter provides a detailed analysis of the information available to Mr Green and clearly and carefully explains the basis upon which he determined to confirm Ms Phillips' decision.
  1. [61]
    This appeal ground cannot succeed, as the reasons: clearly outline the material considered; list the steps taken in reviewing the decision; and address the concerns raised by Mr Czaja.  Further, the letter addresses Mr Czaja's human rights, provides information about employee assistance, provides a contact person to answer any questions about the content of the letter and informs him of his external review rights.

Appeal submission: Mr Czaja is willing to undergo vaccination

  1. [62]
    Mr Czaja states in his submissions of 6 December 2022 that he is willing to undergo vaccination.  Mr Czaja qualifies this by stating that he will only be willing to receive the vaccination on the basis of further consultation and the receipt of a risk assessment.
  1. [63]
    It has been established repeatedly in decisions of the QIRC, that Queensland Health has undertaken consultation as required.  Further, it has been established repeatedly that Mr Czaja has no lawful basis upon which to demand a personalised risk assessment.  It must be clear to Mr Czaja by now that the Directive applies to him; that the Respondent considers that it has undertaken sufficient consultation and does not intend to consult with him further and that the Respondent has determined that it will not provide him with a risk assessment.   Mr Czaja is free to seek further information to inform himself but matters such as seeking a risk assessment and demanding consultation are not exceptional circumstances warranting an exemption from HED 12/21.
  1. [64]
    Mr Czaja submits that as a result of HED 12/21, he has no capacity to provide free and informed consent. Despite this, Mr Czaja has recently demonstrated that he retains the capacity to provided free and informed consent, or to withhold his consent. On 10 October 2022, Mr Czaja told a person responsible for administering a vaccination that Mr Czaja was doing so under 'serious threat of being sacked'. It is clear that the person responsible for administering the vaccination determined that Mr Czaja did not consent to being vaccinated and the vaccination did not go ahead.
  1. [65]
    Whether Mr Czaja is willing to undergo vaccination or not is a matter for him.  However, a continuing choice to remain unvaccinated will likely have dire consequences for his employment.
  1. [66]
    I accept that Mr Czaja has previously received other vaccines and is not 'anti-vaccination'. However, Mr Czaja received the Direction to be vaccinated well over 12 months ago and the Direction remains in place.  On the basis of Mr Czaja's submissions and all of the material available to me, I am not persuaded that Mr Czaja is genuine in submitting that if he were to receive consultation and a risk assessment that he would 'become fully compliant with HED 12/21'.[21]
  1. [67]
    Mr Czaja's willingness or otherwise to receive the vaccine does not serve to make Mr Green's decision not fair or reasonable.

Appeal submission: Employee cohort

  1. [68]
    Mr Czaja appears to maintain at paragraphs [9]-[12] of his submissions that he does not perform a 'clinical' role and that with the use of masks, other PPE and regular RAT tests, he will not pose any heightened risk of transmission.
  1. [69]
    As has been discussed above, Mr Czaja is a person to whom the HED 12/21 applies.  Mr Czaja's personal view about his role and his suggestions about what may suffice as an alternative to being vaccinated do not serve to make Mr Green's decision not fair or reasonable.

Appeal submission: Consultation

  1. [70]
    I have reviewed Mr Czaja's submissions in support of his view that consultation was not properly undertaken. This matter was satisfactorily addressed in Mr Green's letter.  Mr Czaja's personal view 'that the consultation undertaken with registered unions, without the opportunity for reply from the portion of the workforce who are not members of registered unions, amounts to a rubber-stamping process' and that 'simply providing information is not satisfactory consultation' do not serve to make Mr Green's decision not fair or reasonable.

Appeal submission: Behaviour of the Respondent

  1. [71]
    Mr Czaja says that he was 'never engaged in good faith to talk about' his options and that had the Respondent 'simply fulfilled their obligations in regards to consultation under the WHS Act and industrial instruments' the decision to reject the exemption application 'would likely not have been seen as unfair and unreasonable'.  Mr Czaja says that the Respondent has engaged with him in a one-sided way when there was 'ample time to hear the Appellant's concerns and discuss alternative options, even if they were non-existent'.
  1. [72]
    Having decided, following consultation, to implement HED 12/21, it was not a requirement for the Respondent to undertake individual consultations with individuals who had determined not to follow the Direction. The Respondent provided the opportunity for individuals with exceptional circumstances to apply for an exemption.  Mr Czaja took the opportunity to apply for exemption and it was determined that he had not established sufficient exceptional circumstances to receive an exemption. Having read Mr Czaja's material and submissions, Mr Green agreed that the decision not to grant an exemption was fair and reasonable.
  1. [73]
    Mr Czaja has been on some form of paid absence from work for many months, and in this time, it has been open to him to inform himself regarding vaccination in circumstances where he has clearly been on notice that refusal to follow HED 12/21 may result in termination of his employment.

Conclusion

  1. [74]
    I have reviewed the decision of Mr Green dated 10 October 2022 and all submissions and attachments filed for my consideration. The onus rests on the Appellant to demonstrate the unreasonableness of the decision appeal against. Mr Czaja has been unable to demonstrate any way in which Mr Green's decision is deficient or unfair.
  1. [75]
    I am satisfied that the decision of Mr Green to uphold the decision of Ms Phillips to refuse Mr Czaja's application for exemption from HED 12/21 was fair and reasonable. 

Order

  1. [76]
    Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appealed against is confirmed.

Footnotes

[1] Respondent's submissions filed 22 November 2022, [7].

[2] I am not going to reproduce the detail of that content in this decision. It is set out at pages 2 and 3 of the letter dated 10 October 2022 which all parties have access to.

[3] See page 3 of the letter.

[4] I determined that the matter would not be held in abeyance.

[5] Respondent's submissions filed 22 November 2022, [12] Attachment 8.

[6] Ibid [13]; Attachment 8.

[7] Slykerman v State of Queensland (Queensland Health) [2022] QIRC 039, [36], [39] and [41] ('Slykerman'); Bax v State of Queensland (Queensland Health) [2022] QIRC 305, [53] ('Bax'); Donnelly v State of Queensland (Queensland Health) [2022] QIRC 149, [30] ('Donnelly').

[8] Stys v State of Queensland (Queensland Ambulance Service) [2022] QIRC 265, [38] ('Stys').

[9] Tribe v State of Queensland (Department of Education) [2022] QIRC 203, [52].

[10] Ibid; Stevens v Epworth Foundation [2022] FWC 593, [35] ('Stevens').

[11] Radev v State of Queensland (Queensland Police Service) [2021] QIRC 414.

[12] Tilley v State of Queensland (Queensland Health) [2022] QIRC 002, [39] ('Tilley').

[13] Stevens (n 10) [19].

[14] Brassell-Dellow & Ors v State of Queensland (Queensland Police Service) [2021] QIRC 356, [129] ('Brassell-Dellow').

[15] Slykerman; Bax; Donnelly (n 7).

[16] Brassell-Dellow (n 14).

[17] Slykerman (n 7) [35].

[18] Stevens (n 10).

[19] Stys (n 8); Tilley (n 12).

[20] [2022] QIRC 210.

[21] Appellant's submissions filed 6 December 2022 [8].

Close

Editorial Notes

  • Published Case Name:

    Czaja v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Czaja v State of Queensland (Queensland Health)

  • MNC:

    [2022] QIRC 489

  • Court:

    QIRC

  • Judge(s):

    Pidgeon IC

  • Date:

    20 Dec 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
Brasell-Dellow v State of Queensland, (Queensland Police Service) [2021] QIRC 356
2 citations
Jump To
Cite 1 - [2021] QIRC 356
Cite 2 - [2021] QIRC 356
Donnelly v State of Queensland (Queensland Health) [2022] QIRC 149
2 citations
Jump To
Cite 1 - [2022] QIRC 149
Cite 2 - [2022] QIRC 149
Fildes v State of Queensland (Department of Education) [2022] QIRC 305
2 citations
Jump To
Cite 1 - [2022] QIRC 305
Cite 2 - [2022] QIRC 305
Radev v State of Queensland (Queensland Police Service) [2021] QIRC 414
2 citations
Jump To
Cite 1 - [2021] QIRC 414
Cite 2 - [2021] QIRC 414
Richter v State of Queensland (Queensland Health) [2022] QIRC 210
3 citations
Jump To
Cite 1 - [2022] QIRC 210
Cite 2 - [2022] QIRC 210
Cite 3 - [2022] QIRC 210
Slykerman v State of Queensland (Queensland Health) [2022] QIRC 39
3 citations
Jump To
Cite 1 - [2022] QIRC 39
Cite 2 - [2022] QIRC 39
Cite 3 - [2022] QIRC 39
Stevens v Epworth Foundation [2022] FWC 593
2 citations
Jump To
Cite 1 - [2022] FWC 593
Cite 2 - [2022] FWC 593
Stys v State of Queensland (Queensland Ambulance Service) [2022] QIRC 265
2 citations
Jump To
Cite 1 - [2022] QIRC 265
Cite 2 - [2022] QIRC 265
Tilley v State of Queensland (Queensland Health) [2022] QIRC 2
2 citations
Jump To
Cite 1 - [2022] QIRC 2
Cite 2 - [2022] QIRC 2
Tribe v State of Queensland (Department of Education) [2022] QIRC 203
2 citations
Jump To
Cite 1 - [2022] QIRC 203
Cite 2 - [2022] QIRC 203

Cases Citing

Case NameFull CitationFrequency
Baker v State of Queensland (Department of Education) [2025] QIRC 992 citations
1

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