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  4. Neville v State of Queensland (Queensland Health) - [2022] QIRC 92

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Neville v State of Queensland (Queensland Health)[2022] QIRC 92

Neville v State of Queensland (Queensland Health)[2022] QIRC 92

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Neville v State of Queensland (Queensland Health) [2022] QIRC 92

PARTIES:

Neville, Tracey

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

PSA/2022/314

PROCEEDING:

Public Service Appeal – appeal against a disciplinary decision

DELIVERED ON:

21 March 2022

MEMBER:

HEARD AT:

Pidgeon IC

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 – appeal against a disciplinary finding – where respondent alleges that appellant did not comply with Health Employment Directive No 12/21 Employee COVID-19 vaccination requirements  – where allegation substantiated – where appellant was denied an exemption from complying with directive – where appellant submits that decision is unfair and unreasonable

LEGISLATION:

Industrial Relations Act 2016 (Qld) ss 562, 562B and 562C

Public Service Act 2008 (Qld) ss 137, 187 and 194

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

Reasons for Decision

Introduction

  1. [1]
    Ms Tracey Neville (the Appellant) is employed by the State of Queensland (Queensland Health) (the Respondent). Ms Neville is employed as a permanent full-time Switchboard Administrator (AO3), Clinical Records at the Maryborough Hospital within Wide Bay Hospital and Health Service (WBHHS).
  1. [2]
    Ms Neville has been an employee of the Department since 1 December 2006.
  1. [3]
    On 21 February 2022, Ms Neville received a letter informing her that the following allegation against her had been substantiated on the balance of probabilities:

Allegation one

In contravention of a direction given to you by a responsible person, you have not provided to your line manager or uploaded into the designated system evidence of vaccination confirming that you have received the prescribed number of doses of a COVID-19 vaccine.[1]

  1. [4]
    Ms Carroll provided an extensive description of her reasons for determining that Allegation One was substantiated.
  • I note your response in which you claim you have a right to make a complaint.  I can confirm that your process has included the management of a stage one (1) grievance which was your exemption review, stage two (2) grievance which was the internal review of your exemption decision, and stage three (3) grievance which was managed by Ms Barbara Phillips, Deputy Director General, Corporate Services Division, Queensland Health.
  • By correspondence dated 5 November 2021 you were advised why your exemption from the directive was denied.
  • By correspondence dated 13 January 2022 you were provided with the reasons why the decision to confirm the decision of the Vaccination Exemption Review Committee was upheld.
  • As an attachment to the abovementioned correspondence, you were provided with a copy of correspondence sent to your representative Industrial Relations Claims from Ms Theresa Hodges, Chief Human Resources Officer, Human Resources Branch, Department of Health, dated 13 December 2021, pertaining to your concerns regarding consultation, Work Health and Safety obligations, risk assessment, specifics of the Directive and the legislative framework.
  • You were provided a response by way of written correspondence from Ms Katrina McGill, Senior Director Employment Relations, Human Resources Branch, Department of Health, dated 4 November 2021, pertaining to the COVID-19 virus and risks posed by the virus and the risk management strategy in accordance with the Directive.
  • I have considered the alternative options; however do not consider it appropriate to reduce risk posed by COVID-19, even if a face mask or PPE was applied, given the role is a front-line position.  There is no ability for the position to be performed at home or in an alternative work location as the inherent requirements of your role requires you to provide services onsite.
  • Your request to be stood down with access to your employee entitlements or access to a period of non-paid leave whilst the public health direction exists is not able to be accommodated nor is it operationally feasible given your role and considering that your request is for an undetermined period of time.
  • The WBHHS is obligated to provide a safe working environment for both employees and patients. 
  • Clause 6 of the Directive outlines the risk management approach pertaining to the COVID-19 virus.
  • I refer you to Section 51E(1) of the Hospital and Health Boards Act 2011 (Qld) which provides that, inter alia, a health employment directive that applies to an employee of the department is binding on the employee and the department.  Therefore, the WBHHS is complying with the relevant legislation to issue health employment directives about the conditions of your employment.
  • On the 11 September 2021, the Director General, Queensland Health on the advice of the Chief health Officer, issued the Health Employment Directive No. 12/21 – Employee Covid-19 vaccination requirements (the Directive) mandating that all Queensland Health employees who work in or enter a facility where care is provided will be required to be vaccinated.
  • You are in contravention of a direction given to you by a reasonable person in that you have not provided evidence of vaccination confirming that you have received the prescribed number of doses of a COVID-19 vaccine.
  • I am of the view that a reasonable period of time has been afforded to you to seek the advice of your General Practitioner and/or Specialist.  All staff were offered an individual appointment with Dr Scott Kitchener, Executive Director Medical Services, to discuss the vaccination specifically.
  • Due to the risks posed by the virus, as well as the workplace health and safety obligations incumbent upon both the organisation and employees, it is a requirement that all health service employees, who are identified as being in high risk groups, be vaccinated against COVID-19. This is for the protection and defence of not only yourself but the patients, visitors and community in our fight against COVID-19.
  • Queensland Health is of the view that COVID-19 virus presents significant risk to the health and safety of healthcare workers, support staff, their families, and the patients under our care.  Evidence from around the world demonstrates not only the safety of the COVID-19 vaccine, but the very high-level efficacy.
  • Vaccination reduces the risk of hospitalisation and death from COVID-19 by over 90%, when compared to those unvaccinated. Vaccination also means staff are much less likely to transmit the virus to others, including importantly, to our sometimes – immunocompromised patients.
  • 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 mitigation strategy of requiring employees to be vaccinated against COVID-19. This strategy is implemented through the Directive and Policy.
  • Queensland Health has undertaken relevant consultation in relation to the COVID-19 vaccination requirements.  The decision also took into consideration the potential impact of the decision on human rights including the right of a person not to be subject to medical treatment without the person's full, free and informed consent, in accordance with section 17 of the Human rights Act 2019.  The decision does not itself compel a person to be vaccinated, but it does impose consequences upon people who are not vaccinated where there is not good reason. To the extent the decision impacts upon human rights, it is in Queensland Health's position justified.  It is justified because the purpose of the requirement in the Health Employment Directive and Policy include protecting staff and patients from infection with COVID-19 and the maintenance of a proper and efficient health system in a time of a global pandemic.  It should be noted that there is no other less restrictive yet effective way to achieve this purpose.
  • As of 1 November 2021, there can be no employee working in a facility where care is provided without being vaccinated.  This direction, by the Director-General of Queensland Health, communicated to all staff on 25 October 2021, now impacts on your ability to attend the workplace to carry out your work duties.
  • I urge you to consider your vaccination status and, if possible, please consider being vaccinated.  I re-iterate the words from the Director-General's announcement, "vaccination is the right thing to do. Staff have a legitimate expectation that they can be as safe as possible in the workplace, and if you are not vaccinated, you are putting yourself, your colleagues and patients at risk."
  • I am satisfied you are aware of the nature of the direction given to you and the lawful source of the authority to give the direction.
  • I am of the view that you do not have a reasonable excuse for failing to adhere to the lawful direction issued to you for the reasons set out above.
  1. [5]
    The decision maker, Debbie Carroll, Chief Executive, WBHHS, went on to make a disciplinary finding:

On the basis of my finding in relation to Allegation one, I have determined that, pursuant to section 187(1)(d) of the Act, you have contravened, without reasonable excuse, a direction given to you as a health service employee by a responsible person, specifically:

Clause 8.1 of the Directive which provides as follows:

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

  1. Have received at least the first dose of a COVID-19 vaccine by 30 September 2021; and
  2. Have received the second dose of a COVID-19 vaccine by 31 October 2021'
  1. [6]
    The letter went on to tell Ms Neville that serious consideration was being given to the disciplinary action of termination of employment.  The letter informed Ms Neville of her appeal entitlements and specifically told her that if she wished to lodge an appeal under the appeal provisions of the PS Act about the disciplinary finding decision, she must exercise her rights urgently and before a decision to terminate her employment (if it were to be made) is implemented.
  1. [7]
    On 24 February 2022, Ms Neville filed an appeal notice in the Commission.  Ms Neville's reasons for appeal as stated in the appeal notice are

I am appealing that the decision made upon me with the allegations (see attached letter dated 27th (sic) February 2022) are not substantiated and is unfair and unreasonable and do not warrant cause for disciplinary action (termination).

Queensland Health cannot implement Health Employment directives that have any detrimental impacts on their employees:

Legislation/policies/industrial instruments

The Health Employment Directive 12/21 contravenes:

  1. Hospital and Health Boards Act (sections 51AA, 51B, 51C)
  2. Discipline Directive (section 5.4)
  3. Suspension Directive (section 3.2)
  4. Work Health and Safety Act (section 17, 18, 48, 49, 50)
  5. Public Service Act (section 52)
  6. Public Sector Certified Agreement (Part 16 – No further claims in its entirety)
  7. Anti-Discrimination Act 2019
  8. Ethics Act 1994

Values include:

  1. How can Chief Executives in the HHS and Department of Health not be biased when their boss implemented the Directive?
  2. How can they be impartial and apolitical given their roles in ensuring everyone is vaccinated?
  3. Transparency?

I am seeking an external review under 9.3(a) of the Directive for fairness

  1. [8]
    To be clear, while the letter proposes the disciplinary action of termination and asks Ms Neville to respond to this proposed disciplinary action, it is the disciplinary finding that is being appealed. In order to hear this appeal, I must consider whether it was fair and reasonable for the decision maker to substantiate allegation one and, having substantiated the allegation, if it was fair to determine that it formed a ground for discipline under the nominated part of the PS Act.
  1. [9]
    On 24 February 2022, after reading the appeal notice, I ordered that Ms Neville file written submissions in support of her appeal on 28 February 2022, and that the Respondent file submissions in reply on 7 March 2022.  I invited the parties to provide any further submissions by 9 March 2021 and instructed that unless any party was seeking to make oral submissions or further written submissions, the matter would be dealt with on the papers pursuant to s 451(1) of the Industrial Relations Act 2016.

Is the Appellant entitled to appeal?

  1. [10]
    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. [11]
    The appeal notice was filed with the Industrial Registry on 24 February 2022 within 21 days of the decision being received on 21 February 2022. I am satisfied that the Appellant may appeal the decision.

Appeal Principles

  1. [12]
    Section 562B(3) of the Industrial Relations Act 2016 (IR Act) provides that "the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable".
  1. [13]
    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. [14]
    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 conveyed to Ms Neville on 21 February 2022 was fair and reasonable.
  1. [15]
    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.

Health Employment Directive No. 12/21

  1. [16]
    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 ('HHB Act').
  1. [17]
    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. [18]
    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. [19]
    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. [20]
    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. [21]
    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.

Whether the decision was fair and reasonable

Background to the matter

  1. [22]
    The Respondent provides a background to the matter which is useful in establishing the process followed leading to the disciplinary finding.[2]  I will summarise the background here.

Directive 12/21

  1. [23]
    The Respondent sets out various clauses of Directive 12/21 which are set out above and says that prior to the introduction of Directive 12/21, the Department complied with their obligations under the Work Health and Safety Act 2011 to consult with employees and with the registered unions representing employees.  The consultation included dedicated meetings with registered unions representing employees employed within the Department.  The Department also conducted appropriate risk assessment prior to the implementation of Directive 12/21.

Vaccine Exemption Application

  1. [24]
    The Respondent says that on 30 September 2021, Ms Neville applied for an exemption to the mandatory vaccine requirements, identifying 'other exceptional circumstances'.[3]
  1. [25]
    By letter dated 5 November 2021, Mr Michael Lewczuk, Chief Operating Officer, WBHHS advised Ms Neville that her application for an exemption had been refused and directed Ms Neville to comply with Directive 12/21 within seven days of receipt of that letter.[4]
  1. [26]
    By letter dated 15 November 2021, Industrial Relations Claims wrote to the Health Service Chief Executive requesting an internal review of the decision to refuse her exemption application.[5]
  1. [27]
    By letter dated 13 December 2021, Ms Theresa Hodges, Chief Human Resources Officer, responded to the correspondence from Industrial Relations Claims dated 15 November 2021 as a stage 2 grievance under the relevant Awards.[6]
  1. [28]
    By letter dated 13 January 2022, Robyn Bradley, Executive Director, Mental Health and Specialised Services, WBHHS advised that the internal review had been completed and the decision to refuse Ms Neville's exemption application had been confirmed.[7]

Disciplinary Process and Suspension

  1. [29]
    By letter dated 27 January 2022, Ms Carroll invited Ms Neville to show cause, within 14 days, as to why discipline findings should not be made under the PS Act in relation to the allegation set out above at [3].  That letter also advised of a decision to suspend Ms Neville on normal remuneration pursuant to s 137(1)(b) of the PS Act until 20 February 2022 or until otherwise advised.  Ms Carroll also invited Ms Neville to show cause, within, 14 days, as to why she should not be suspended without pay.[8]
  1. [30]
    On 2 February 2022, Ms Neville responded to the show cause notice.[9]  In her response Ms Neville advised that her grievance had been escalated to stage 3. By letter dated 14 February 2022, Ms Barbara Phillips, Deputy Director-General, Corporate Services Division, responded to Industrial Relations Claims' stage 3 grievance.[10]
  1. [31]
    By letter dated 15 February 2022, Ms Carroll advised Ms Neville that the stage 3 grievance had been addressed and the disciplinary process would recommence.  Ms Neville was afforded two days to provide any further response to the show cause notice.[11]  On 17 February 2022, Ms Neville provided a further response.[12]
  1. [32]
    On 21 February 2022, Ms Neville was advised that the allegation had been substantiated and was invited to show cause, within seven days, as to why the proposed disciplinary action of termination of her employment should not be imposed.  This letter also advised Ms Neville that she was suspended without pay, from the date of the letter.[13]

Ms Neville's Appeal Submissions

  1. [33]
    On 28 February 2022, Ms Neville filed a document in the Industrial Registry.  The document does not provide any reasons in support of Ms Neville's appeal against the disciplinary finding.  Instead, the document begins with

I refer to your letter dated 21st February 2022, you have identified from Allegation one that a discipline ground exists and that I may now receive disciplinary action (termination) against me for not complying to Health employment Directive No 12/21 Employee Covid-19 vaccination, I will decline the offer for vaccination product unless the following conditions are met in entirety, please provide evidence of the following by duly witnessed affidavit of facts.

  1. [34]
    The document goes on to list the things Ms Neville appears to want the Respondent to provide or explain to her. Ms Neville seeks information regarding the Employer's rights under: 'the Fair Work Act; Commonwealth of Australia Constitution; Public Health Act; and the Universal Declaration of Human Rights'.  Ms Neville also seeks copies of her original employment contract and a 'vaccine safety report' provided by the World Health Organisation.
  1. [35]
    Ms Neville goes on to request that the employer agree that it will:

...accept full responsibility for any injury caused to me by vaccination, such injury can be confirmed by any member of my family, friend, neighbours if a doctor is not willing to make a claim of injury…

  1. [36]
    Ms Neville then sets out her request that the employer agree to pay amounts of compensation ranging from ten thousand dollars to fifty million dollars in the event she experiences adverse events or death following the vaccine.
  1. [37]
    Ms Neville concludes by stating

As you are requesting, insisting, forcing and or coercing me to receive a medication of the type commonly named vaccine, as a requirement for my continued employment, I will give you 21 days from the date of this notice to provide me with the sworn evidence of all points above number 1-17, during which time my employment will remain as it currently it and has been since the beginning of my employment.

If you are unable or unwilling to provide me with evidence as requested, it is agreed by both parties, you and I, that my employment will remain as it is currently, with no ill affect, no forced termination and you will provide me with full protection of any discrimination in the workplace by you and or your professional advisors and or your other employees.  If I feel discrimination of any kind you will take every measure necessary to abate the situation and provide me with a safe workplace.

Please take note that it is not my intention to cause you any harm and this conditional acceptance is not vexatious in any way.  It is my intention to continue my employment until retirement age or until such time as the company is no longer able to operate.  Should you terminate my employment without my consent and without providing sworn evidence of the points 1-17 above, you will agree to a termination payment sum or five million dollars ($5,000,000 AUD).

All monies agreed to in the twelve corners of this document are due and payable within 21 days of the event.  You also agree that you will be liable for nay and all costs for both parties should any kind of litigation take place as a result of this contract agreed to by both parties, you and I.

Without malice, vexation, argument or merriment.

Thank you for your time and assistance offered in this matter.

Tracey Neville

  1. [38]
    Ms Neville attaches a two page document which includes some data:
  1. Australian Government Department of Health – Therapeutic Goods Administration, Databased from Adverse Events Notifications[14]
  2. European Database – Summary through July 31, 2021 & Covid-19 Vaccine Injuries/Causalities[15]
  3. European Database – Summary through February 19, 2022, Total Adverse Reactions[16]
  4. Vaccine Adverse Event Supporting System.[17]

Submissions of the Respondent

  1. [39]
    After setting out the background which I address above from [22], the Respondent provides reasons that the decision to make a disciplinary finding against Ms Neville was fair and reasonable.
  1. [40]
    The Respondent says that Ms Neville did not have an approved exemption from compliance with Directive 12/21 and has not indicated any willingness or intention to become vaccinated.
  1. [41]
    Ms Neville has been provided with, and exercised, two opportunities to respond to the show cause notice.  She has not disputed that she failed to be vaccinated against COVID-19 but has attempted to dispute the lawfulness of Directive 12/21.
  1. [42]
    With regard to Ms Carroll's decision, the Respondent says that Ms Neville's submissions were carefully considered and weighed against the objects and requirements of Directive 12/2.  Ms Carroll was not satisfied that Ms Neville had a reasonable excuse for her non-compliance with Directive 12/21 and had not demonstrated that the direction to comply was not lawful and reasonable.  On that basis, Ms Carroll determined to make the disciplinary finding.
  1. [43]
    The Respondent says that Ms Neville's human rights were taken into account and that this is set out in the letter of 21 February 2022.
  1. [44]
    The Respondent says that there was no lawful basis upon which Ms Neville demanded access to the risk assessment undertaken by the Department or WBHHS in relation to the COVID-19 vaccines.  Further, the Respondent says that correspondence provided to Ms Neville[18] addresses Ms Neville's concerns regarding: consultation; risk assessments; the safety and efficacy of the vaccines and the requirements in relation to COVID-19 vaccination as they relate to her employment conditions.
  1. [45]
    The Respondent submits that Ms Neville has not provided any evidence that her circumstances as an individual are exceptional or would excuse her to be exempt from the direction to receive a COVID-19 vaccine in accordance with Directive 12/21. 
  1. [46]
    Ms Carroll considered Ms Neville's concerns about the safety and efficacy of the COVID-19 vaccine and found that Ms Neville had not provided any evidence of circumstances specific to her, including any evidence of recognised medical contraindications, which meant that she was unable to be safely administered the current vaccines.[19]  The Respondent says that it was therefore reasonable for Ms Carroll to determine that Ms Neville had, without reasonable excuse, failed to comply with a lawful and reasonable direction to comply with Directive 12/21.
  1. [47]
    With regard to Ms Neville's submission on the issue of consent, namely the Department 'requesting, insisting, forcing and or coercing' her to receive the COVID-19 vaccine, the Respondent says that Ms Neville has not been deprived of free and informed consent.  The Respondent says that Ms Neville is not obliged to work for the Department and that Directive 12/21 does not contain an offer to receive treatment, but a direction to particular employees to be vaccinated.[20]
  1. [48]
    The Respondent says that the importance of mandatory vaccination requirements is articulated at cl 6 of Directive 12/21.    The nature of Ms Neville's role presents a high degree of risk to herself, other Maryborough Hospital employees, and patients with respect to COVID-19 transmission.  In particular, the Respondent says:
  1. Ms Neville's workplace is the Maryborough Hospital. Any health service is a high-risk location with respect to COVID-19 transmission;
  2. As part of her role, Ms Neville is required to physically attend Maryborough Hospital to undertake her professional duties. There were no alternative duties for Ms Neville to perform at home or at another location;
  3. Ms Neville's duties require her to interact and communicate closely with clinical and non-clinical employees and patients, including vulnerable members of the community. The increases the risk of transmission of COVID-19 between patients and Ms Neville; and
  4. Employees based at other facilities within WBHHS regularly travel across different sites, including Stanthorpe Hospital, to perform their roles.
  1. [49]
    The Respondent says that it is clear that Ms Neville is hesitant to receive the COVID-19 vaccination but that reservations about receiving the vaccination, vaccine hesitancy and conscientious objection do not, by themselves, amount to a reasonable excuse for Ms Neville's non-compliance with Directive 12/21 and do not mean that the direction to comply with Directive 12/21 was not lawful or reasonable.  The Respondent says that it is not incumbent on the Department to accept Ms Neville's views.[21]
  1. [50]
    The Respondent says that it was reasonably open for Ms Carroll to determine Ms Neville's concerns regarding risk, safety, and efficacy of COVID vaccines did not excuse her from adhering to the requirements of her employment in accordance with Directive 12/21.

Ms Neville's further submissions

  1. [51]
    On 10 March 2022, Ms Neville filed further submissions in response to the Respondent's submissions of 8 March 2022.
  1. [52]
    Ms Neville says that the Respondent 'has not responded to my submission but has only again stated as to why the disciplinary finding against me have been made by not adhering to the Health Employment Directive 12/21 Employee COVID-19 vaccination requirements (Directive 12/21) was issued…'.
  1. [53]
    Ms Neville states that there is no proof or reason as to why she would be a risk to herself, the public or her work colleagues.  She says that she has not yet received: a risk assessment; data on deaths and adverse reactions of COVID-19 vaccine; data of safety of having the COVID-19 vaccine; data of COVID-19 transmission within the workplace; a 'validated response' to her submission dated 3 March.
  1. [54]
    Ms Neville says that on 3 March 2022 there was a 'second Case Management hearing with the AVN (Australian Vaccination Risks Network) Judicial Review against the maladministration by the TGA suing the Secretary on the basis for: adverse events, efficiency (sic) to vaccines; safety to vaccines'.  Ms Neville says that two cases 'are being put together' and references the 5 to 11 years old vaccine rollout and the 'Mandamus claim'. Ms Neville also makes reference to 'new evidence' regarding the Pfizer clinical trial.
  1. [55]
    Ms Neville says

I wish not to partake in a medical clinical trial knowing that there is clear evidence and data what the vaccine is doing to the community with the reported adverse reactions and deaths.  I would like to put to Debbie Carroll (Chief Executive, Wide Bay Hospital and Health Service) to reconsider her decision in terminating me until this court hearing[22] has been heard.

Consideration

  1. [56]
    As stated above, this appeal requires me to determine whether the decision of Ms Carroll dated 21 February 2022 to substantiate the allegation and make a disciplinary finding against Ms Neville was fair and reasonable.
  1. [57]
    At the outset, I note that Ms Neville's submissions in this matter have failed to grapple with the purpose of the appeal.  It is unclear to me why Ms Neville has formed a view that it is open to her to during the appeal process to make further requests or give ultimatums to her employer regarding compensation to be paid to her in the event that she receives the vaccination and has an adverse reaction or if her employment is terminated because of her failure to be vaccinated.
  1. [58]
    If anything, Ms Neville's submissions provide a clear indication that she has no intention of complying with Directive 12/21 and serve to support Ms Carroll's finding that Ms Neville had failed to comply with the direction and that she had no reasonable excuse for doing so.
  1. [59]
    Ms Neville's submissions appear to be directed toward the employer and not toward explaining to me why the disciplinary finding was not fair and reasonable.  I note that in her final submissions, Ms Neville complains that Queensland Health has 'not responded to my submission but has only stated as to why disciplinary findings against me have been made'.  With respect, it was entirely appropriate that Queensland Health direct their submissions to defending the decision being appealed.
  1. [60]
    I accept and note that recent decisions of the Commission have established that Directive 12/21 is both lawful (being issued under section 51A of the Hospital and Health Boards Act 2011) and reasonable.[23]
  1. [61]
    I have reviewed the correspondence provided to Ms Neville throughout the grievance and show cause process.  Ms Neville's complaints and concerns appear to have been carefully responded to.
  1. [62]
    The allegation against Ms Neville was that she had contravened the direction given to her to provide evidence of vaccination confirming that she had received the prescribed number of doses of a COVID-19 vaccine.
  1. [63]
    The evidence clearly demonstrates that Ms Neville had applied for an exemption from the direction to be vaccinated and that this exemption was not approved.  Further, the evidence demonstrates that Ms Neville exercised her right to an internal review of that decision.  Ms Neville also exercised her right to complain about Directive 12/21 by way of a grievance.
  1. [64]
    Ms Neville provided no evidence of compliance with Directive 12/21 in the show cause process.    It is clear that Ms Neville has not received the prescribed number of doses of a COVID-19 vaccine.  In fact, the final sentence in her closing submissions to this appeal states that she does not wish to 'partake in a medical clinical trial'. 
  1. [65]
    There is only one allegation against Ms Neville and it related to her refusal to follow the direction to be vaccinated.  It appears uncontroversial that Ms Neville has not received the vaccination.  It was therefore open to Ms Carroll to substantiate allegation 1.
  1. [66]
    Having substantiated allegation 1, Ms Carroll then made a disciplinary finding that per s 187(1)(d) of the PS Act, Ms Neville 'contravened, without reasonable excuse, a direction given to the employee as a public service employee by a responsible person'.
  1. [67]
    There are no submissions before me to suggest that the show cause process has been unfair or that Ms Neville has not had a proper opportunity to respond to the allegation.  Further to this, I note that Ms Carroll's decision letter provides extensive detail as to the information which has been made available to Ms Neville.
  1. [68]
    Ms Neville's submissions do not provide new information about a reasonable excuse she may have for contravening the direction given to her. Nothing Ms Neville has filed in relation to this appeal serves to displace the finding or undermine any of the reasons provided to her by Ms Carroll and reproduced at [4] above.
  1. [69]
    As best I can make out, Ms Neville's appeal grounds are that Queensland Health cannot implement the Directive 12/21 if it will have a detrimental impact on employees.  Throughout the lengthy process which led to the disciplinary finding, and in submissions to this appeal, Ms Neville has not provided any information specific to her own circumstances or situation to render Directive 12/21 unfair as it applies to her.
  1. [70]
    Ms Neville raises a question about bias in the decision making of the 'Chief Executives' and about the capacity for 'Chief Executives' to be impartial and apolitical 'given their roles in ensuring everyone is vaccinated'.  Ms Neville has provided no further information or evidence to support her claim that the 'Chief Executives' are biased.  None of the material before me bears out that there has been bias against Ms Neville in this process.  To the contrary, it appears that Ms Neville has been provided with natural justice at every stage and that care has been taken to explain the reasons for decisions made by the Respondent. 
  1. [71]
    A review of all of the material provided to me has failed to evince any example of a decision maker imposing their own personal views on the process or the reasons given to Ms Neville.  It appears to me that every decision has been based on policy, a directive and legislation.  Any suggestion that the decision makers involved, in particular as it relates to this decision, Ms Carroll, have displayed bias or have not been impartial and apolitical is simply not made out.
  1. [72]
    Ms Neville's final ground of appeal is the single word, 'Transparency?'.  I take this to mean that she is of the view that the decision making process has not been undertaken in a transparent way.  Again, Ms Neville has provided no evidence whatsoever to support her claim that there has not been transparency in the decision making of Queensland Health.  If what she is referring to is that she has not been provided with the list of documents she has requested, I can only note that there is no requirement for her to be provided with such material, but further to that, it seems that every decision maker involved in her matter has gone to some lengths to ensure that Ms Neville has access to relevant information.
  1. [73]
    I note that in her brief final submissions in this matter Ms Neville asks that Ms Carroll 'reconsider her decision in terminating me'.  I note that Ms Carroll has not yet decided to terminate Ms Neville's employment but has asked Ms Neville to show cause why the disciplinary action of termination of employment should not be imposed upon her.  Now that this appeal has been heard, Ms Neville can make submissions to Ms Carroll about why she thinks she should not be terminated.
  1. [74]
    I am unable to identify anything in Ms Neville's submissions that would lead me to determine that the decision to substantiate the allegation and make a disciplinary finding was not fair and reasonable.
  1. [75]
    The decision of Ms Carroll dated 21 February 2022 is confirmed.

Footnotes

[1]  Particulars of the allegation (a) through to (s) are set out from the top of page 2 to the top of page 3 of the letter.

[2]  Respondent submissions filed 7 March 2022, [4]-[19].

[3]  Ibid, Attachment 1.

[4]  Ibid, Attachment 2.

[5]  Ibid, Attachment 3.

[6]  Ibid, Attachment 4.

[7]  Ibid, Attachment 5.

[8]  Ibid, Attachment 6.

[9]  Ibid, Attachment 7.

[10]  Ibid, Attachment 8.

[11]  Ibid, Attachment 9.

[12]  Ibid, Attachment 10.

[13]  Ibid, Attachment 11.

[14]  https://apps.tga.gov.au/Prod/daen/daen-report.aspx.

[15]  https://healthimpactnews.com/2021/20595-dead-1-9-million-injured-50-serious-report.

[16]  https://www.adrreports.eu/en/index.html.

[17]  https://vaers.hhs.gov/about.html.

[18]  Respondent Submissions filed 7 March 2022, Attachments 2, 4 and 8.

[19] Radev v State of Queensland (Queensland Police Service) [2021] QIRC 414, [61].

[20] Higgins v State of Queensland (Queensland Health) [2022] QIRC 030, [60].

[21] Tilley v State of Queensland (Queensland Health) [2021] QIRC 002, [42].

[22]  I assume the court hearing Ms Neville refers to relates to the information she provides in her submissions which I have set out in the previous paragraph.

[23]  See for example: Slykerman v State of Queensland (Queensland Health) [2022] QIRC 039, [41].

Close

Editorial Notes

  • Published Case Name:

    Neville v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Neville v State of Queensland (Queensland Health)

  • MNC:

    [2022] QIRC 92

  • Court:

    QIRC

  • Judge(s):

    Pidgeon IC

  • Date:

    21 Mar 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
Higgins v State of Queensland (Queensland Health) [2022] QIRC 30
1 citation
Jump To
Cite 1 - [2022] QIRC 30
Nowak v State of Queensland (Queensland Health) [2021] QIRC 2
1 citation
Jump To
Cite 1 - [2021] QIRC 2
Radev v State of Queensland (Queensland Police Service) [2021] QIRC 414
1 citation
Jump To
Cite 1 - [2021] QIRC 414
Slykerman v State of Queensland (Queensland Health) [2022] QIRC 39
1 citation
Jump To
Cite 1 - [2022] QIRC 39

Cases Citing

Case NameFull CitationFrequency
Ogbonna v State of Queensland (Queensland Health) [2024] QIRC 11 citation
1

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