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Rivers v State of Queensland (Queensland Ambulance Service)[2023] QIRC 124

Rivers v State of Queensland (Queensland Ambulance Service)[2023] QIRC 124

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Rivers v State of Queensland (Queensland Ambulance Service) [2023] QIRC 124

PARTIES:

Rivers, Sundance

(Appellant)

v

State of Queensland (Queensland Ambulance Service)

(Respondent)

CASE NO:

PSA/2023/6

PROCEEDING:

Public Sector Appeal – Fair treatment appeal

DELIVERED ON:

5 May 2023

MEMBER:

Pidgeon 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 SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SECTOR APPEAL – appellant employed by the respondent as an Advanced Care Paramedic – where the appellant has an approved time-limited exemption from the respondent’s Employee COVID-19 Vaccination Requirements policy – where the appellant appeals an internal review decision upholding a decision to place conditions on his exemption including that the appellant is unable to attend the workplace whilst unvaccinated against COVID-19 – where the respondent says alternative duties are unavailable – where the appellant was placed on paid discretionary special leave pending the outcome of his exemption application – where the respondent has ceased the appellant’s special leave arrangements following the outcome of his exemption application – where the respondent has invited the appellant to access his accrued leave entitlements for the remaining duration of his exemption – where the respondent says the appellant cannot continue to be paid in circumstances where he is unable to work and perform the inherent requirements of the role – decision appealed against confirmed

LEGISLATION:

Anti-Discrimination Act 1991 (Qld) s 108

Employee COVID-19 Vaccination Requirements cls 2, 3, 5

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

Public Sector Act 2022 (Qld) ss 4, 101, 129, 131, 133, 289, 324

Public Service Act 2008 (Qld) ss 175 (repealed)

Special Leave (Directive 05/17) sch 2

Supporting Workers Affected by Workplace Change (Directive 01/22)

Work Health and Safety Act 2011 (Qld)

CASES:

Auckland Harbour Board v The King [1924] AC 318

Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435

AWU v O'Bryan [2000] 163 QGIG 364

Combet v Commonwealth [2005] 224 CLR 494

Hill v State of Queensland (Queensland Health) [2014] QIRC 84

Labaj v Lollo Plumbing Pty Ltd [2004] 175 QGIG 444

Michael Toohey v Dr Dan White, Executive Director of Catholic Schools and legal representative of the Catholic Education Office [2017] FWC 4722

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

State of Queensland v The Queensland Public Sector Union of Employees (2003) 172 QGIG 1323

The Queensland Public Sector Union of Employees v Department of Corrective Services [2003] ICQ 51

Tweddell v Ehle Pty Ltd (1993) 142 QGIG 397

Reasons for Decision

Introduction

  1. [1]
    Mr Sundance Rivers (the Appellant) is employed by the State of Queensland (Queensland Ambulance Service) as an Advanced Care Paramedic within the Sunshine Coast District.
  1. [2]
    His appeal concerns an internal review decision of 20 December 2022 which confirmed the Respondent’s earlier decision of 10 November 2022 to place conditions upon Mr Rivers’ time-limited exemption from the requirement to receive a COVID-19 vaccination. Whereas Mr Rivers had previously been placed on paid special leave for a period of approximately 12 months pending the outcome of his exemption application, the Respondent’s decision of 10 November 2022 ceased Mr Rivers’ special leave arrangements and instead invited him to access his accrued leave entitlements for the remaining duration of his time-limited exemption.
  1. [3]
    Mr Rivers was initially of the view that he had been suspended without pay, though the letter does not suspend him without pay,[1] rather it informs him that the special discretionary paid leave has ceased and invites him to use his accumulated leave. The letter places conditions upon Mr Rivers exemption from the requirement to receive a vaccination, including that at this stage, while there are no alternative duties available for him to perform, he is unable to attend the workplace.
  1. [4]
    The letter also foreshadows that the matter is being referred to a different decision-maker to consider whether it is appropriate to direct Mr Rivers to attend an independent medical examination. Mr Rivers says he is willing to submit to such a medical examination, however, as no decision has been made in that regard, I will not be considering that matter here.
  1. [5]
    Mr Rivers believes that he has complied with the workplace policy and that he should continue to be paid. In his submissions filed on 10 February 2023, Mr Rivers requests that I make a number of orders. I will address this request later.

Appeal principles

  1. [6]
    Section 562B(3) of the Industrial Relations Act 2016 (Qld) (the IR Act) provides that a public sector appeal is to be decided by reviewing the decision appealed against and 'the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable'.
  1. [7]
    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. [8]
    A public sector appeal is not an opportunity for a fresh hearing, but a review of the decision arrived at by the decision-maker.
  1. [9]
    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.

Legislative framework

  1. [10]
    The Appellant filed his appeal before the commencement of the new Public Sector Act 2022 (Qld) (the PS Act) on 1 March 2023. Section 289 of the PS Act repeals the previous Public Service Act 2008 (Qld) which was in effect at the time of the internal review decision and when Mr Rivers filed his appeal.
  1. [11]
    Section 324 of the PS Act relevantly provides:
  1. (1)
      This section applies if—

(a)   before the commencement, a person appealed against a decision under the repealed Act, section 194; and

(b)  immediately before the commencement, the appeal had not been decided.

  1. (2)
      From the commencement, the appeal must be heard and decided under chapter 3, part 10.
  1. [12]
    Immediately before the commencement of the new PS Act, Mr Rivers’ appeal had not been decided. I will therefore decide Mr Rivers’ appeal under ch 3, pt 10 of the new PS Act.
  1. [13]
    As Mr Rivers has not been suspended without pay, I have determined to consider his appeal as an appeal against a fair treatment decision.
  1. [14]
    Section 131 of the PS Act lists various categories of decisions against which an appeal may be made. Section 131(1)(d) provides that an appeal may be made against a fair treatment decision.
  1. [15]
    Section 129 of the PS Act relevantly states:

129  Definitions for part

…

fair treatment decision means a decision a public sector employee believes is unfair and unreasonable.

  1. [16]
    Section 133 of the PS Act explains who may appeal a fair treatment decision:

133  Who may appeal

…

(d) for a fair treatment decision—a public sector employee aggrieved by the decision;

Background

Mr Rivers’ exemption application

  1. [17]
    On 13 September 2021, Queensland Ambulance Service (QAS) published its Code of Practice and QAS Human Resources Procedure – COVID-19 Vaccine Requirements. This was replaced on 31 January 2022 by the Employee COVID-19 Vaccination Requirements policy (the QAS Human Resources Policy). Mr Rivers is a person to whom the policy applies.
  1. [18]
    On 23 September 2021, Mr Rivers applied for an exemption from the Respondent’s mandatory vaccine requirements on the grounds of a ‘medical contraindication to a COVID-19 vaccine’.
  1. [19]
    In support of his application, Mr Rivers produced a letter dated 31 August 2021 from his General Practitioner, Dr Gordon Stachan, Peregian Spring Doctors, which stated that Mr Rivers was ‘exempt from Covid vaccine due to Anaphylaxis’.[2]
  1. [20]
    On 27 November 2021, the Appellant emailed the Respondent attaching a screenshot copy of his Australian Government COVID-19 Digital Certificate which states ‘valid from 2 November 2021’. In his email, Mr Rivers describes the screenshot as originating from ‘Medicare showing Covid vaccine exemption status listed with Medicare and on the Australian Immunisation Registry’.[3]
  1. [21]
    On 5 February 2022, Mr Rivers provided a PDF copy of his Digital Certificate which indicated he had a medical contraindication to COVID-19 vaccines from 2 November 2021.[4]
  1. [22]
    Due to the Respondent’s mandatory vaccination requirements, Mr Rivers has been unable to attend the workplace while remaining unvaccinated against COVID-19 and was placed on paid special discretionary leave pending the outcome of his exemption application.
  1. [23]
    Mr Rivers has not undertaken alternative duties during this time.
  1. [24]
    On 10 February 2022, the Region advised QAS Workforce Reform that all employees placed on paid discretionary special leave while their exemption applications were pending were to complete online mandatory training and that no other duties would be assigned to them.
  1. [25]
    Mr Rivers was on paid special discretionary leave from 1 November 2021 until 18 November 2022, seven days after he received notice of the outcome of his exemption application. During his special leave arrangements, the Appellant accessed pre-booked recreation leave on three occasions.

Outcome of Mr Rivers’ exemption application

  1. [26]
    On 10 November 2022, Mr Ray Clarke, Executive Director, Workforce, QAS wrote to Mr Rivers advising that his application for an exemption was conditionally approved until 30 June 2023. Mr Clarke also advised Mr Rivers that his special leave with pay arrangements would cease on 18 November 2022, but he may access any of his accrued leave entitlements.
  1. [27]
    The conditions placed on Mr Rivers’ time-limited exemption are as follows:
  • You will be unable to attend any QAS workplace (except to access ambulance services) whilst you have not submitted evidence that you have received the prescribed doses of a COVID-19 vaccine (unless otherwise advised by me).
  • If your circumstances change and you are able to, and elect to, receive a dose of a COVID-19 vaccine, within 48 hours of receipt of your dose of the COVID-19 vaccine, you must provide evidence to [email protected].
  • You must advise the QAS of any changes to your personal circumstances which might impact on this decision and the conditions listed. [5]
  1. [28]
    Mr Clarke said that in balancing Mr Rivers’ personal circumstances with the QAS Human Resources Policy, he determined that it was not appropriate to implement ‘alternative controls or risk mitigation measures’ to ensure the safety of the Appellant and others.
  1. [29]
    In explaining that it was not appropriate for Mr Rivers to return to the workplace in his role as an Advanced Care Paramedic whilst unvaccinated, Mr Clarke said, in summary:
  • Mr Rivers’ role as an Advanced Care Paramedic falls within ‘Group 1’ and ‘Group 2’ under cl 2 of the QAS HR Policy. Group 1 encompasses QAS employees who work, or provide services to, aged care facilities or multipurpose health services who provide residential aged care. Group 2 includes clinical and non-clinical QAS employees who work in hospitals or other healthcare settings where clinical care or support is provided.
  • Healthcare workers are at a greater risk than the general population of COVID-19 infection and illness, and further, healthcare workers frequently interact with vulnerable patients who may be immunocompromised.
  • The Appellant works in ambulance services with suspected or confirmed COVID-19 patients, or where a patient with COVID-19 might be treated.
  • Mr Rivers comes into direct or indirect contact with other healthcare workers who work with suspected or actual COVID-19 patients.
  • The Appellant has a higher potential to expose patients, clients, other staff, and the broader community to COVID-19.
  • It is not reasonably practicable for the Appellant, as an Advanced Care Paramedic, to physically distance from patients and colleagues. There is a requirement for rapid donning and doffing of personal protective equipment (PPE) in emergent situations.
  • Alternative control measures, such as rapid antigen testing, are unlikely to be as effective as vaccination against COVID-19.
  • The utilisation of PPE cannot be viewed or utilised in isolation, or to the exclusion of other control measures such as vaccination.
  1. [30]
    Furthermore, given the ongoing nature of Mr Rivers’ medical contraindication, Mr Clarke advised the Appellant that he considered it appropriate to refer the matter to a separate decision-maker within QAS to determine whether Mr Rivers should have an independent medical examination under s 175 of the now repealed Public Service Act 2008 (Qld).
  1. [31]
    With regard to Mr Rivers’ human rights, Mr Clarke acknowledged that the decision ‘may impose a small limit on your human rights, including your right to equality and non-discrimination, freedom of movement and taking part in public life’ but said that he was satisfied that those ‘limits on human rights are justified by the need to ensure the readiness of the health system in responding to the COVID-19 pandemic’ and that ‘less restrictive conditions would not achieve these purposes as effectively’.

Internal review decision

  1. [32]
    Mr Rivers requested an internal review of Mr Clarke’s decision by email dated 23 November 2022. Mr Rivers said, in part:

… I am unable to express how devastated I am by the decision. I have dedicated the last 17 years of my life and career towards serving the community as a paramedic, a job which I am so passionate about.

I think this decision is unfair as I have an accepted medical contraindication due to anaphylaxis. A requirement to my position has been imposed which I am unable to comply with due to my accepted disability and I am being discriminated against to my detriment. I do not believe that there has been sufficient consideration towards redeployment and/or reasonable adjustment to my employment.

As per the QAS HR Procedure – Employee Complaints Management, I formally request a review of this decision…

  1. [33]
    On 2 December 2022, Mr Rivers sent a further email to the Respondent regarding the exemption outcome decision. Mr Rivers requested further reasons for the decision, a completed risk assessment, and evidence regarding the risks of COVID-19 exposure and transmission, as well as the effectiveness of alternative control measures. Mr Rivers claimed that clause 5 of the QAS HR Policy which mandates vaccination does not apply to him, making Mr Clarke’s decision ‘invalid’. The Appellant also conveyed a willingness to comply with other reasonable precautionary measures and principles as an alternative to vaccination.
  1. [34]
    By letter dated 20 December 2022, Mr David Hartley, Assistant Commissioner, Strategic Operations, QAS, wrote to the Appellant to confirm Mr Clarke’s decision.
  1. [35]
    From the outset, Mr Hartley noted that Mr Rivers’ request for an internal review applied only in part to Mr Clarke’s decision. Mr Hartley said:

I note that this request for internal review is not being sought in relation to the decision of Mr Clarke to provide you with the time-limited exemption and instead, requests an internal review only in relation to the inability for you to return to the workplace whilst the time-limited exemption is in effect. You have submitted that the consideration that was given to opportunities for your redeployment and/or reasonable adjustment by Mr Clarke were insufficient.

  1. [36]
    On page two of the internal review decision, Mr Hartley sets out the documentation he considered in conducting the review and an extensive timeline of events commencing with the advice regarding mandatory COVID-19 vaccination in September 2021 and concluding with Mr Rivers’ request for internal review and provision of further reasons in support of his request for internal review in November and December 2022.
  1. [37]
    On page 3 of the letter, Mr Hartley sets out the matters Mr Rivers had requested be addressed as part of the internal review:

In the request for internal review submitted on 23 November 2022 you submit that:

  • You think this decision is unfair as you have an accepted medical contraindication due to anaphylaxis.
  • You are being discriminated against to your detriment as a requirement to your position  has been imposed which you are unable to comply with due to your accepted disability.
  • You do not believe that there has been sufficient consideration towards redeployment and/or reasonable adjustment.

In your additional email submitted on 2 December 2022, you also submit that:

  • The decision is invalid as you are not required to comply with clause 3 of the QAS HR Policy as you have been provided with a medical exemption under clause 5.
  • You request supporting evidence in relation to certain statements made in the letter from Mr Clarke advising of his decision and rationale for the decision.
  • You would be happy to comply with all reasonable precautionary principles, and vaccination is not reasonable in your situation.
  • You request copies of completed risk assessments.
  1. [38]
    Mr Hartley goes on to address each of the matters he identified above at [37] from pages 3 to 7 of the internal review decision.
  1. [39]
    With regard to Mr Rivers’ contention that Mr Clarke had not given sufficient consideration towards redeployment and/or reasonable adjustment, Mr Hartley said, in summary:
  • Mr Clarke considered reasonable adjustments or alternative work arrangements to allow Mr Rivers to perform his role outside of a healthcare setting.
  • Mr Rivers’ role requires workplace attendance at all times in normal circumstances.
  • Having regard to the nature and requirements of Mr Rivers’ role, it was reasonable for Mr Clarke to determine that no reasonable adjustments or alternative work arrangements were available or appropriate in the circumstances.
  • It is evident that Mr Clarke considered whether there were any opportunities to place him into an alternate role while the time-limited exemption was in place.
  • Mr Clarke consulted with Mr Rivers’ Regional Assistant Commissioner and it was determined that no suitable roles were available which did not require vaccination against COVID-19.
  1. [40]
    Mr Hartley said that it ‘appears that very specific consideration has been given to all of your personal circumstances’, the requirements of Mr Rivers’ role as an Advanced Care Paramedic, and the ongoing business requirements and responsibilities of QAS.
  1. [41]
    Mr Hartley notes Mr Clarke’s statement in the decision that the nature of Mr Rivers’ medical contraindication is that it appears to be ongoing in nature and that in the circumstances, he considered it was appropriate for the matter to be referred to another decision-maker to consider whether Mr Rivers should be required to submit to a independent medical examination under section 175 of the now repealed Public Service Act 2008 (Qld).  Mr Hartley goes on to say that while the preliminary assessment has resulted in a time-limited exemption, ‘a final assessment will not be able to be made until a specialist report has been received…’.
  1. [42]
    Mr Hartley finds that as Mr Clarke is not a medical practitioner, it is entirely reasonable for him to await a decision made by separate decision-maker in QAS before determining the ‘most appropriate way to manage your health condition against the requirements of your role on a consistent basis with the provisions of the Act’.
  1. [43]
    Mr Hartley concludes that Mr Clarke had given sufficient consideration towards redeployment and/or reasonable adjustment to Mr Rivers’ employment.
  1. [44]
    With regard to Mr Rivers’ contention that he was being discriminated against to his detriment as a result of a requirement being imposed which he is unable to comply with as a result of his disability, Mr Hartley said:

I do not consider you have been treated less favourably due to your medical condition than another employee without a medical condition would be treated, in circumstances that are the same or not materially different. This is because an Advanced Care Paramedic who is granted a time-limited medical exemption for reasons unrelated to a medical condition would similarly not be able to return to work whilst unvaccinated for work, health and safety reasons. I also consider that the vaccination requirements that have been imposed are reasonable, in all of the circumstances. As such, I do not consider you have been unlawfully discriminated against.

  1. [45]
    Mr Rivers contended that given he had a medical exemption under the QAS Policy, the policy requirement to be vaccinated did not apply to him. In response to this, Mr Hartley said:

I have considered your submission and whilst I understand your argument, please be advised that this is not the practical effect of the policy. The effect of being provided with an exemption means that the specific requirements of the QAS HR Policy which require vaccination against COVID-19 and the production of such evidence by specific dates contained in the QAS HR Policy at section 3, do not apply to you.

In effect, this means that where you do not comply with these requirements, you cannot be found to be non-compliant with those sections of the QAS HR Policy. As a result, you would not reasonably be liable for discipline for contravening, without reasonable excuse, an obligation imposed on you under a code of conduct. This is because QAS has accepted the medical evidence that the currently available COVID-19 vaccines within Australia cannot be safely administered to you at this point in time due to your medical condition. The QAS accepts that you cannot, on reasonable grounds, comply with the requirement to be vaccinated under the QAS HR Policy at this time on the medical evidence available.

  1. [46]
    Mr Hartley goes on to inform Mr Rivers that while he has an exemption from complying with the direction to be vaccinated, this does not mean that he can return to his normal duties while he remains unvaccinated. Mr Hartley made reference to Mr Clarke’s reasoning which he said included ‘a detailed consideration of your role and the interactions which you have with patients, other staff and the broader community, the risk of infection and illness which you as a healthcare worker face compared to the general population, and other alternative risk control measures’. Mr Hartley said that having considered those factors set out by Mr Clarke and the intent of the QAS HR Policy, he was of the view that it was fair and reasonable for Mr Clarke to impose the condition that Mr Rivers does not return to his normal duties as an Advanced Care Paramedic, at this time, whilst unvaccinated. Mr Hartley said that he considered Mr Clarke’s reasoning was ‘sound, considered, and appropriate having regard to all of the relevant factors’.
  1. [47]
    With regard to Mr Rivers’ request for evidence and copies of risk assessments, Mr Hartley informs Mr Rivers, in summary:
  • Mr Rivers was advised by QAS Workforce Reform that a risk assessment had been conducted.
  • In creation of the QAS HR Policy, a range of factors were considered, including ‘those factors related to the risk posed by COVID-19 to healthcare workers, work, health and safety obligations, and human rights factors’.
  • The Queensland Industrial Relations Commission has determined on a number of occasions that an obligation by a duty holder to undertake a risk assessment does not, of itself, create a right by an employee to demand a copy of the risk assessment.
  • Mr Clarke was under no obligation to provide Mr Rivers with a risk assessment.
  • The absence of provision of a risk assessment to Mr Rivers does not render Mr Clarke’s decision unfair or unreasonable.
  • Mr Clarke has provided comprehensive reasons for the conditions imposed on Mr Rivers’ time-limited exemption.
  • Mr Clarke’s reasons have addressed the risk associated with Mr Rivers returning to work whilst unvaccinated.
  1. [48]
    Mr Hartley also refers to the reasoning provided to Mr Rivers by Mr Clarke regarding alternative control measures. Mr Hartley says that he has considered the reasons Mr Clarke gave as to why alternative control measures are unlikely to be equally as effective as a vaccination requirement and the organisational measures required to be implemented in order to meet the obligations required under the Work Health and Safety Act 2011 (Qld). Mr Hartley says that he concurs with Mr Clarke’s assessment of Mr Rivers’ individual circumstances and the onus on the QAS to take reasonable steps to ensure the safety of Mr Rivers and those around him in the workplace.
  1. [49]
    Mr Hartley says that Mr Clarke was required to balance the intent of the QAS HR Policy with Mr Rivers’ personal circumstances and that it was fair and reasonable for Mr Clarke to impose a condition that Mr Rivers not return to his normal duties as an Advanced Care Paramedic whilst unvaccinated.
  1. [50]
    Mr Hartley says that he finds the decision made by Mr Clarke was fair and reasonable in the circumstances. Mr Hartley says that it was fair and reasonable for Mr Clarke to determine that reasonable adjustments were unable to be made, and that alternate work arrangements were not available. Mr Hartley also reiterated that he considered the approach taken by Mr Clarke is not discriminatory in a manner that is unlawful as a result of Mr Rivers’ medical contraindication. Mr Hartley also agreed that the referral of the matter of whether Mr Rivers should be required to submit to an independent medical examination to another decision-maker was fair and reasonable in circumstances where Mr Rivers may be medically unable to perform the inherent requirements of their role.
  1. [51]
    Finally, Mr Hartley says that he is satisfied that his decision is compatible with human rights and that while the decision has the potential to limit Mr Rivers’ human rights, he is satisfied that those limits on human rights are justified.

Jurisdictional matters

  1. [52]
    In submissions filed on 31 January 2023, the Respondent raised a jurisdictional objection stating that the appeal was lodged two days outside of the 21-day appeal period. At a conference to discuss the matter on 1 March 2023, the Respondent informed the Commission that it would not press the objection.
  1. [53]
    I am satisfied that while the decision letter is dated 20 December 2022, Mr Rivers did not receive it until 29 December 2022. The appeal was lodged in time and may be heard.

Conference on 1 March 2023

  1. [54]
    After reading the submissions of the parties, I decided that it would be useful to hold a conference to enable the parties to better understand one another’s position and for me to be able to ask some clarifying questions about the issues raised in the submissions and Mr Rivers’ grounds of appeal.
  1. [55]
    Following the conference, I requested further written submissions from the parties to address matters raised at the conference.

Mr Rivers’ reasons for appeal

  1. [56]
    Mr Rivers’ appeal notice provides some background to his application for exemption and employment arrangements. As discussed above, Mr Rivers contends that the decision of 10 November 2022 means that he is unable to attend work and no alternate duties or re-deployment have been offered. Therefore, from 18 November 2022, Mr Rivers says he was ‘effectively suspended and placed on leave without pay’. I note that while the current situation may feel like a suspension without pay, it is clear that Mr Rivers has not been suspended. Mr Rivers had been on special discretionary leave with full pay for a period of approximately one year. The decision of 10 November 2022 informed him that this arrangement would come to an end, and he would be able to apply to use accrued leave entitlements but otherwise would be on leave without pay.
  1. [57]
    Mr Rivers said that he contacted the Queensland Human Rights Commission (QHRC) who advised him that ‘there had been a clear case of discrimination’ and that having a medical contraindication resulting in an inability to receive a vaccination is deemed to be an impairment or disability. Mr Rivers further stated that the QHRC informed him that he was being discriminated against as a result of a workplace injury for which he had an approved WorkCover claim.
  1. [58]
    Mr Rivers said that as suggested by the QHRC, he sent a reply to the 10 November 2022 decision which disputed the decision and requested further information. Mr Rivers says that the internal review decision he received on 29 December 2022 ‘advised that the decision to continue my stand down without pay will not change and no further information will be provided to me regarding the reasons for decision’.
  1. [59]
    Mr Rivers says that he has ‘complied with the workplace policy and [is] willing to submit to an independent medical examination and therefore… should continue to be paid.’

Respondent’s submissions

  1. [60]
    It is not my intention to set out the Respondent’s submissions in great detail. The submissions largely reflect the reasoning of Mr Hartley in determining that the decision of Mr Clarke was fair and reasonable. Some points raised by the Respondent are useful to highlight here:
  • The effect of the exemption granted to Mr Rivers is that he will not be found to be non-compliant with the policy requiring vaccination. This is important as it means he will not be subject to any disciplinary process as a result of not being vaccinated.
  • The effect of the exemption is not that Mr Rivers is able to return to work without having been vaccinated.
  • The Respondent has determined that Mr Rivers is unable to safely return to work whilst unvaccinated.
  • The Respondent has determined that Mr Rivers’ role falls within both Groups 1 and 2 of the Policy under clause 2.
  • Healthcare workers face a higher risk of COVID-19 infection and illness compared to the general population due to the nature of their work and are required to have frequent interactions with vulnerable patients, who may be immunocompromised.
  • Mr Rivers’ duties mean that he has a higher potential to expose patients, clients and other staff or the broader community to COVID-19.
  • It is not reasonably practicable for an Advanced Care Paramedic to physically distance from his patients or colleagues.
  • Alternative control measures are unlikely to be equally as effective as vaccination treatment.
  • While the use of PPE is considered an important protective measure, it should not be viewed or utilised in isolation, or to the exclusion of other control measures such as vaccination.
  1. [61]
    The Respondent further says that Mr Hartley considered Mr Clarke’s reasoning which included detailed consideration of Mr Rivers’ role and the intent of the policy and determined that it was fair and reasonable for Mr Clarke to impose the condition upon the exemption approval.
  1. [62]
    The Respondent submits that there is no lawful basis upon which Mr Rivers can request proof that he is at a heightened risk of transmission.[6]
  1. [63]
    The Respondent reiterates that Mr Rivers has not been ‘stood down’ or ‘suspended without pay’ and that Mr Rivers has not at any stage been suspended from duty either on normal remuneration or without pay. The Respondent says that Mr Rivers was placed on special paid leave for a significant period of approximately 12 months pending the outcome of his exemption application.
  1. [64]
    The Respondent says that the decision that Mr Rivers’ special paid leave arrangement would cease and that he would be invited to access his accrued leave entitlements was fair and reasonable for the following reasons, in summary:
  • Mr Rivers was granted paid special leave pending the outcome of his exemption application and was therefore on notice that the leave would not be extended indefinitely.
  • Mr Rivers was unable to return to work and perform the inherent requirements of his role while unvaccinated and where there were no other roles available.
  • Mr Rivers has significant accrued leave balances.
  • Noting the Respondent’s financial accountability obligations, employees should not be placed on paid leave for extended periods.
  • Further extending Mr Rivers’ special paid leave would not have been an efficient and appropriate use of public resources.
  1. [65]
    The Respondent says that any claim of discrimination by Mr Rivers is misconceived and that any Advanced Care Paramedic granted an exemption from the direction to be vaccinated would similarly not be able to return to work while they remain unvaccinated on the basis of health and safety.
  1. [66]
    The Respondent also says that if the decision to place conditions on the time-limited exemption were to contravene the Human Rights Act 2019 (Qld), this would not make the decision invalid or unfair for the purposes of the IR Act.[7]
  1. [67]
    Finally, the Respondent submits that where Mr Rivers is unable to receive a COVID-19 vaccine due to a medical contraindication, it was reasonable for the reasons set out in Mr Hartley’s letter for Mr Hartley to conclude that Mr Rivers was unable to attend the workplace or any other QAS location where vaccination is required. The Respondent says it was also fair and reasonable to impose conditions on the exemption granted to Mr Rivers.

Mr Rivers’ submissions

  1. [68]
    At the conference on 1 March 2023, a number of matters raised in Mr Rivers’ initial submissions were able to be clarified and resolved. Where matters are no longer ‘live issues’ in the appeal, I have decided not to address them in these reasons for decision. Mr Rivers and the Respondent are both able to avail themselves of the transcript for that conference.
  1. [69]
    Mr Rivers says that his workplace injury sustained following anaphylaxis to an influenza immunization during a mandatory QAS influenza vaccination program is the subject of ongoing immunological medical treatment and remains an open and active WorkCover case. Mr Rivers says that the injury resulted in a permanent impairment which has led to medical contraindications and an inability to receive the COVID-19 vaccines. Mr Rivers says this has been extremely detrimental to him as he is now faced with the challenges and difficulties of being unable to be vaccinated against COVID-19. Mr Rivers says that as a medical professional, he supports the use of approved vaccines and that he now faces the hardship of living with a permanent impairment which has directly contributed to the employment matters relating to this appeal.
  1. [70]
    Mr Rivers says that under the QAS Policy, he is exempt from complying with the requirement to be vaccinated and that he has complied with all aspects of the QAS policy and procedures related to COVID-19 vaccination.
  1. [71]
    With regard to the aspect of the internal review decision upholding Mr Clarke’s decision to refer the matter of whether Mr Rivers should be required to submit to an Independent Medical Examination (IME), Mr Rivers states that he is willing and able to submit to a QAS medical examination and that he has communicated this to QAS. I understand that Mr Rivers does not press any ground of appeal against that aspect of Mr Hartley’s internal review decision.
  1. [72]
    Mr Rivers raises a concern that the Respondent has taken adverse action against him because of his impairment. Any allegation of adverse action is outside of the scope of this appeal, and I will not address that matter in this decision.
  1. [73]
    Mr Rivers raises the matter of discrimination and says that while s 108 of the Anti-Discrimination Act 1991 (Qld) provides that a person may do an act that is reasonably necessary to protect the health and safety of people at a place of work, a decision to cease his pay is more prejudicial to his interests than is strictly necessary for QAS to comply with its obligations under the Workplace Health and Safety Act 2011 (Qld).  Mr Rivers says that the decision not to pay him while awaiting an IME ‘could be construed as treating me less favourably than another person without my impairment would be treated in similar circumstances.’ Mr Rivers says that not paying him could be seen as discrimination against him on the basis of a recognised impairment. While I note Mr Rivers’ submissions regarding discrimination, there are other avenues for Mr Rivers to raise this aspect of his grievance and I understand from his submissions that he has taken steps to contact the QHRC.
  1. [74]
    Mr Rivers says that he requested evidence pursuant to ‘s 3.2.4 of the QAS HR Procedure – Displaced Tenured Employees.’
  1. [75]
    Mr Rivers says that the introduction of the requirement to be vaccinated against COVID-19 changed the inherent requirements of the role and that his role has changed significantly meaning he is no longer able to meet the inherent requirements of his role due to his medical contraindication to COVID-19 vaccinations. It is on the basis of what he says is a change to the inherent requirements of his role that Mr Rivers says means that Supporting Workers Affected by Workplace Change (Directive 01/22) applies to him.
  1. [76]
    Mr Rivers says that Directive 01/22 creates a responsibility for placement of him into an alternate role. Mr Rivers discusses how the Directive operates and what he believes should be undertaken by QAS with regard to his employment. Mr Rivers points to a wide range of transferable skills he has and essentially asks why steps have not been taken to redeploy, transfer or consider alternate duties for him.
  1. [77]
    Mr Rivers says that he is still employed by QAS but the direction that he does not attend his place of work and that he is unable to engage in any form of work with QAS has effectively resulted in a suspension from work without remuneration.
  1. [78]
    Mr Rivers rejects any notion that it is fair for his pay to be ceased while ‘displaced from my substantive role’ and for him to access his leave accruals including his long service leave accumulated over 17 years.
  1. [79]
    Mr Rivers goes on to make a number of submissions regarding suspension and pay while on suspension. Mr Rivers has not been suspended from work and so I will not consider those submissions here.
  1. [80]
    On page 10 of his initial submissions, Mr Rivers requests that I make a number of orders or rulings and make appropriate ‘remedial actions’. Given the nature of this appeal, the decisions I may make are to confirm Mr Hartley’s internal review decision, set it aside and substitute it with a different decision, or return it to the decision-maker. I am confined to considering whether the decision of Mr Hartley was fair and reasonable. At the conference of the matter, it appeared that Mr Rivers was primarily concerned with the decision to cease his pay. He was also concerned with the decision that there were no alternative duties he could undertake.

Further submissions

  1. [81]
    Following the conference, I issued directions seeking additional submissions, particularly with regard to the decision to cease Mr Rivers’ special leave with pay arrangements and for him to be invited to access his leave accruals and to what consideration was given to alternate duties or roles which could be undertaken by Mr Rivers.

Respondent’s further submissions

Cessation of special leave without pay

  1. [82]
    The Respondent’s further submissions confirm that the vaccination restrictions apply to every position within QAS without exception and that employees subject to the vaccination requirements remain unable to attend their usual workplace and undertake their usual work where they do not meet the vaccination requirements.
  1. [83]
    The Respondent says that whilst the Ministerial Directive relating to Special Leave (Directive 05/17) did not apply to the QAS, the Director-General Queensland Health approved access to discretionary special leave without pay to QAS employees while the exemption process was being undertaken.
  1. [84]
    The Respondent says that paid discretionary leave is not an entitlement and is ‘as the name suggests, discretionary.’ While ordinarily, a person may be granted up to five days’ discretionary leave for exceptional circumstances,[8] Mr Rivers has received 12 months’ paid discretionary leave because he was not able to work while his exemption remained pending. The Respondent says that this is a generous provision of additional salary.
  1. [85]
    The Respondent says that it was made clear to Mr Rivers by email dated 28 October 2021 that he would continue to receive pay and be placed at no financial disadvantage while his exemption application was pending. The Respondent says that the cessation of special leave with pay occurred seven days after Mr Rivers received an outcome to his exemption application and that this was aligned with the foreshadowed advice of 28 October 2021 that special leave with pay would be in place until the exemption application was finalised.
  1. [86]
    The Respondent says that as of 10 November 2022, Mr Rivers’ application was no longer pending and as such, the grounds upon which the Director-General of Queensland Health and the QAS had approved discretionary special leave pay concluded.
  1. [87]
    The Respondent says that being granted an exemption only excuses an employee from being subject to any disciplinary process for failing to receive the vaccine in compliance with the QAS HR Policy. It does not mean that an employee is able to ‘return to the workplace and be exposed to the risk that the vaccination requirements seek to mitigate, nor does it mean they have an ongoing entitlement to be paid their usual salary during their absence’.  If an employee is not vaccinated, they are unable to attend the workplace or perform the inherent requirements of their role.
  1. [88]
    The Respondent points to legal authority for the prospect that there is ‘no liability for wages or salary unless earned by service’.[9]
  1. [89]
    The Respondent says that albeit through no fault of his own, Mr Rivers cannot provide any services to the QAS. As a result, QAS is not obliged to continue the payment of ordinary wages to Mr Rivers.
  1. [90]
    In considering whether an employee is able to recover unpaid wages from an employer in circumstances where the employee has not performed work, the Respondent points to the matter of Labaj v Lollo Plumbing Pty Ltd,[10] where the Asbury IC said:

It is axiomatic that in order to succeed in an action for recovery of unpaid wages, an applicant must establish that the wages claimed are owed pursuant to a contract of employment. In Tweddell v Ehle Pty Ltd (1993) 142 QGIG 397, then President Moynihan J considered provisions of the then Industrial Relations Act 1990 which provided for recovery of wages “due and payable to an employee, or payable on account of the employee and unpaid” and the definition of wages “which” as “moneys payable to an employee in respect of work performed or to be performed…” holding that:

“For wages to be payable they must have been earned by work done in accordance with a contract of employment. The claim in this case is really a claim for the loss of an opportunity to earn wages in the future, the loss being due, on the appellant’s case, to the respondent’s wrongful repudiation of the contract before performance became due; it is an action for breach of contract.”

  1. [91]
    The Respondent says that special leave is an additional discretionary leave entitlement and that it is not wages payable for work done in accordance with a contract of employment. Mr Rivers is on leave and therefore not required to work.
  1. [92]
    The Respondent says that the principles set out by Moynihan J and Asbury IC as set out above in [79] were relied upon by Bloomfield DP in Hill v State of Queensland (Queensland Health) (‘Hill’):[11]

… in order to succeed in an action for recovery of unpaid wages… an applicant must establish that the wages claimed are owed pursuant to a contract of employment. There is no scope for the Commission, for example, to order payment of all or part of an amount claimed on the basis of some notion of equity or fairness.[12]

  1. [93]
    The Respondent also points to the decision of Blades IC in AWU v O'Bryan,[13] which cited Tweddell v Ehle Pty Ltd[14] and observed the principle espoused by Dixon J in Automatic Fire Sprinklers Pty Ltd v Watson.[15] Blades IC held:

A contract for the establishment of the relation of master and servant falls into the same general category of agreements to pay in respect of the consideration when and so often as it is executed, and is, therefore, commonly understood as involving no liability for wages or salary unless earned by service, even though the failure to serve is a consequence of the master’s wrongful act.’[16]

  1. [94]
    QAS says that in any case, the ‘head of power’ to pay Mr Rivers expired once his exemption had been determined as the special discretionary leave had only been approved for the period that the exemption application was pending. The Respondent directs me to case law on this point, but essentially their argument is that the Director-General provided authority to pay discretionary leave to those who had applied for exemptions only for the period that the exemption was pending. Once the exemption application had been decided, there was no authority upon which QAS could continue paying Mr Rivers and to do so would have been ‘simply illegal and ultra vires.’[17]
  1. [95]
    The Respondent says that this situation is apposite to circumstances where a teacher becomes a ‘disqualified person’ and unable to perform the inherent requirements of their role due to an inability to maintain a current working with children check clearance. The Respondent says that it has been held that such circumstances may be a valid reason for dismissal,[18] but that it becomes harsh, unjust or unreasonable where alternatives such as suspension with or without pay, access to accrued leave or leave without pay, were not considered as an alternative.[19] The Respondent says that Mr Rivers was provided with the ability to access his accrued leave until such time as a separate decision-maker determined if it was appropriate for Mr Rivers to attend an independent medical examination under s 175 of the now repealed Public Service Act 2008 (Qld) and notes that Mr Rivers has expressed a willingness to do so and that this is an appropriate course of action.
  1. [96]
    However, the Respondent says that there is no basis on which Mr Rivers is entitled to be paid discretionary special leave with pay while the IME is facilitated.
  1. [97]
    The Respondent repeats its earlier submissions that it would not be fair or reasonable or in the public interest for the QAS to continue paying Mr Rivers his ordinary wage when he is not able to work, noting that he has already been paid special discretionary leave for approximately 12 months.

Whether the QIRC has the jurisdiction to order the QAS to continue paying Mr Rivers discretionary leave with pay

  1. [98]
    The Respondent says that the QIRC is an entity created by statute and it therefore does not have any inherent or equitable jurisdiction. In support of its submission, QAS says:

[46]  In State of Queensland v The Queensland Public Sector Union of Employees [2003] QIC 116; (2003) 172 QGIG 1323 at 1324, it was noted that:

The Commission is not bound by technicalities or legal forms but is governed in its decisions by equity, good conscience and the substantial merits of the case having regard to the interests of the persons immediately concerned and the community as a whole.

[47]  However, when the above passage was relied upon to justify Orders given by the Commission against a union, in allowing the appeal and setting aside the Orders, in The Queensland Public Sector Union of Employees and Department of Corrective Services (No. C81 of 2003)[20] President Hall held that:

With respect the passage goes to the exercise of power, not the vesting of power. The Queensland Industrial Relations Commission is not vested with power to make all such orders as the Commission considers would advance the public interest.

  1. [99]
    The Respondent says that it follows that where a decision is set aside pursuant to s 562C(1)(c) of the IR Act, any ‘substitute decision’ can only be made within the Commission’s vested powers.
  1. [100]
    The Respondent says that as regrettable as the circumstances may be, Mr Rivers, for reasons beyond his control, cannot render service, cannot perform the inherent requirements of his role or any other role within QAS, and accordingly, he is not entitled to wages from the QAS.

Steps taken to consider alternate duties

  1. [101]
    The Respondent reiterates its earlier submissions that as the vaccination requirement applies to every position in the QAS, there was, and is, no role which Mr Rivers can be placed in which does not require vaccination against COVID-19.
  1. [102]
    The Respondent says that it was under no obligation to create or find alternative duties for Mr Rivers to undertake remotely, in circumstances where he is unable to comply with an inherent requirement of his role, for an indefinite period and there is no identifiable role in which he can be placed.
  1. [103]
    The Respondent says that steps were taken by QAS to consider whether there were tasks or duties which could be undertaken remotely, including:

… consideration was given to whether call backs could be undertaken for pending cues, however this was not possible because of the information and communication technology infrastructure requirements such as the requirement to use the Computer Aided Dispatch system which is not accessible remotely. Consideration was also given to whether the QAS could drop QAS vehicles to the home location of individuals so that they could conduct inventory checks, however the logistics and costs involved in moving vehicles around made this unreasonable and untenable.

  1. [104]
    The Respondent acknowledges that some QAS employees have undertaken discrete tasks or duties on an ad hoc basis while awaiting completion of the exemption process but that this has been extremely limited in nature and sporadic, dependent on the particular needs of individual regions.
  1. [105]
    The Respondent says that the only tasks Mr Rivers was directed to undertake while on special leave with pay awaiting the outcome of the exemption process was to undertake mandatory training. The Respondent says that his demonstrates the difficulty it faced in identifying meaningful, sufficient, and appropriate tasks for employees to undertake. The Respondent says that the same challenges remain following the approval of Mr Rivers’ time-limited exemption.

Further submissions of Mr Rivers

  1. [106]
    Mr Rivers maintains that by virtue of his exemption, he has ‘met my vaccination requirements as set out by the QAS HR Policy’. Mr Rivers essentially argues that the exemption means he does not have to comply with the direction to be vaccinated and so vaccination is no longer a condition of his employment.
  1. [107]
    The Appellant maintains his view that QAS has not provided him with evidence as to why it is necessary to place restrictions on his employment. Mr Rivers also states that the decision to end the discretionary special leave with pay is ‘disciplinary action against me in the form of a monetary penalty’.
  1. [108]
    Mr Rivers submits that QAS has produced no evidence that he has not met the inherent requirements of his role and states that he has complied with all required policies and does meet the inherent requirements of his role.
  1. [109]
    Mr Rivers further states that the decision to cease the special discretionary leave with pay ‘could be construed as a suspension without pay’ and that such a suspension is in breach of s 101 of the PS Act.
  1. [110]
    Mr Rivers says that it was never communicated to him that he may receive an exemption but still be unable to return to work. Mr Rivers says that QAS has not produced any evidence or legislative instruments which suggest that he is unable to work following an approved medical condition.
  1. [111]
    With regard to alternate duties, Mr Rivers says that QAS has not engaged in any communication with him regarding the possibility of alternate roles or duties and that at the conference on 1 March 2023 it was evident that QAS had a lack of knowledge regarding his qualifications and experience. Mr Rivers says that QAS has not supplied any evidence to suggest that any alternative roles or working arrangements have or are being considered for him.
  1. [112]
    Mr Rivers maintains that there are roles in QAS which are not subject to the requirement to be vaccinated and that he should be considered for such roles. Mr Rivers says that there is no evidence that QAS has searched for alternative work arrangements for him in other public entities.
  1. [113]
    Mr Rivers submits that he should be subject to Directive 01/22 Supporting Employees Affected by Workplace Change. This is not a matter canvassed in Mr Hartley’s review of Mr Clarke’s decision and as such is beyond the scope of this appeal.
  1. [114]
    Mr Rivers again raises matters regarding discrimination, however I find that the question of whether Mr Rivers has been discriminated against on the basis of his impairment is one which must be pursued through another avenue.
  1. [115]
    Mr Rivers argues that QAS has not provided evidence to support its contention that the authority for payment of special discretionary leave with pay ended at the conclusion of the exemption application process. Alternatively, Mr Rivers appears to suggest that as the decision indicated that the matter of an IME would be referred to an independent decision-maker for consideration, this means that the exemption application process has not concluded and the authority to pay him continues.

Consideration

  1. [116]
    I note the Respondent’s submission that Mr Rivers did not specifically raise the matter of the cessation of his special leave without pay in his request for internal review. Mr Hartley’s decision does not specifically address the matter of the cessation of Mr Rivers’ pay. However, it is clear that this is a serious issue for Mr Rivers and I appreciate the cooperation of the Respondent in listening to Mr Rivers’ concerns at the conference on 1 March 2023 and for providing detailed reasoning supporting its position in its further submissions.  Mr Rivers says that his request was for a review of Mr Clarke’s decision and essentially argues that while he raised specific concerns he had with the decision, his appeal was against the whole decision, not just the matters he highlighted in his correspondence requesting the review and later asking for additional information.
  1. [117]
    At the outset, I note that Mr Rivers maintains that the decision not to continue his discretionary special leave with pay is a disciplinary action. This is simply not the case. I understand that Mr Rivers feels that he is being penalised for his inability to be vaccinated, however there is absolutely no evidence that QAS has at any point commenced disciplinary action against Mr Rivers and in fact, the effect of the exemption is that Mr Rivers is not required to comply with the direction to be vaccinated. This is important because non-compliance in the absence of an exemption would most likely engage the discipline process.
  1. [118]
    I similarly reject Mr Rivers’ contention that he has been ‘stood down without pay.’  Mr Rivers has been invited to access his accrued leave provisions while he is unable to attend the workplace due to being unable to be vaccinated. In the event that Mr Rivers does not access leave, it would seem he would be placed on some sort of special leave without pay or approved absence from work. This situation does not enliven s 562B(3) of the IR Act as submitted by Mr Rivers.
  1. [119]
    I understand Mr Rivers’ argument that the exemption means that he is not required to be vaccinated. However, his contention that this means he is able to return to work as an unvaccinated person is not the practical result of the exemption. It is possible to be exempted from complying with the direction to be vaccinated but still be an unvaccinated person who is unable to attend the workplace.
  1. [120]
    QAS has implemented a policy requiring workers to be vaccinated. While that policy is in place, the practical reality is that a person who may be exempt from being vaccinated cannot attend work. The QAS has confirmed on many occasions that the policy applies to all positions within QAS and that all roles all within the parameters of either Group 1, Group 2, or Group 3. It was reasonable for Mr Hartley to uphold Mr Clarke’s determination that there were no alternate roles within QAS that Mr Rivers can undertake while the requirement for vaccination is in place.
  1. [121]
    The authorities make it clear that in the absence of a scheme set out within a contract of employment enabling paid leave for a worker who is unable to attend work, there will be no entitlement to pay.[21] Mr Rivers is not performing work and therefore, the Respondent is under no obligation to pay him. The practical effect of this may be harsh, and this has been acknowledged by the Respondent in its decision to pay Mr Rivers for 12 months while he was not able to attend work, despite there being no obligation for it to do so.
  1. [122]
    Where Mr Rivers’ employment agreement had allowed for the unlimited payment of discretionary leave if circumstances arose such that Mr Rivers was unable to perform the inherent requirements of his role and I found that an exercise of discretion to refuse such leave was unfair, I may have the power to order payment. However, QAS employees do not have access to such a leave scheme and the authority for QAS to offer paid discretionary leave was created only for the period that the exemption process was underway.
  1. [123]
    I therefore find that it was fair and reasonable for Mr Hartley to uphold Mr Clarke’s decision informing Mr Rivers that his discretionary leave with pay had come to an end as was foreshadowed in the correspondence sent to him in October 2021.
  1. [124]
    A period of 12 months is an extraordinary period of time for an employee to be afforded discretionary special paid leave. However, the COVID-19 pandemic period was extraordinary in itself and clearly led to a range of decisions being made to ensure that as far as was reasonable, financial disadvantage to employees would be minimised while their exemption applications were assessed.
  1. [125]
    I would observe that the lengthy period of time that Mr Rivers was on paid leave was through no fault of his own. QAS was in control of the exemption application process and would be best placed to explain why the consideration of Mr Rivers’ exemption took over a year.
  1. [126]
    I do not accept Mr Rivers’ suggestion that the decision of Mr Clarke, upheld by Mr Hartley, that the matter of whether Mr Rivers should be required to submit to an IME be referred to a different decision-maker means that his exemption application has not been finally decided. The clear decision of Mr Clarke is to approve an exemption until July 2023. The application has been considered and decided.
  1. [127]
    While Mr Rivers says that the reference to ‘managing public resources efficiently, responsibly and in a fully accountable way’ is no longer in the PS Act, I note two things, firstly, the decision of Mr Clarke was made under the old Act and the internal review was undertaken while the repealed Act was current. Secondly, and in any case, the new PS Act includes section 4(d)(v) which requires that ‘public resources are managed efficiently, and their use is accountable’. However, Mr Clarke and Mr Hartley do not appear to have decided to cease paying Mr Rivers on the basis of efficient use of public resources. It appears that the dominant reason for the cessation of pay was that the Director-General had only authorised such leave to be paid for the period that exemption applications were being considered. This is not an appeal against the Director-General’s decision, however, it would seem that to the extent the efficient use of public resources is relevant to the decision, it is in relation the Director-General’s decision-making which was in turn applied by Mr Clarke and upheld by Mr Hartley.
  1. [128]
    I accept the submission of the Respondent that the QAS HR Procedure – Displaced Tenured Employees has not been enlivened with regard to Mr Rivers until such time as an IME has taken place. Mr Rivers has stated on many occasions that he is not opposed to submitting to an IME. The aspect of Mr Hartley’s decision regarding the IME referral is not a matter I am required to consider and the application of the QAS HR Procedure is outside the scope of this appeal. However, Mr Rivers does raise a fair point in asking why an IME was not suggested earlier when there have been 18 months where such an appointment could have been organised. I understand that there may be some challenges in accessing an appropriately qualified doctor to undertake the particular assessment required in Mr Rivers’ circumstances and I hope that this is able to be done without too much delay in circumstances where Mr Rivers currently has no certainty about his future employment situation.
  1. [129]
    I understand Mr Rivers’ submission that an IME should not be required in order for QAS to look beyond the organisation and to other parts of the public sector for roles he is able to undertake while unvaccinated. However, this is not a matter for this appeal. In the circumstances, I find that it was reasonable for Mr Hartley to uphold Mr Clarke’s assessment that there were not alternative roles within QAS which could be undertaken by Mr Rivers while he remains unvaccinated.
  1. [130]
    I understand that Mr Rivers was able to work in his role as an Advanced Care Paramedic despite being unable to receive the flu vaccination and having received an exemption from the requirement to be vaccinated for the flu. However, this appeal is not about the flu vaccination.
  1. [131]
    Mr Rivers contends that the length of time taken to assess his application and the delay in organising the IME and a final decision being made about the effect of not receiving a COVID-19 vaccination on his employment with QAS make it unfair and unreasonable to cease his pay. I fully acknowledge the serious impact this matter has had on Mr Rivers, both personally and professionally. However, as stated by Deputy President Bloomfield in Hill, ‘there is no scope for the Commission, for example, to order payment or all or part of an amount claimed on the basis of some notion of equity or fairness.’ [22] An exemption from being vaccinated means that Mr Rivers is not subject to discipline as a result of his inability to receive the vaccine. An exemption from vaccination does not create a situation where Mr Rivers is able to attend the workplace in circumstances where it has been determined that all staff of QAS must be vaccinated in order to attend the workplace. By virtue of the Director-General’s direction, QAS had the power to pay Mr Rivers during the period of time his exemption was being considered. That power was removed when his exemption application was decided. In circumstances where Mr Rivers is not able to attend work and is therefore not performing duties, he has no entitlement to pay.[23]
  1. [132]
    The lawfulness of the QAS HR Policy is not the subject of this appeal. While that policy was in place, it was incumbent upon Mr Clarke and Mr Hartley to make decisions which complied with that policy. It was fair and reasonable for Mr Hartley to uphold Mr Clarke’s decision to exempt Mr Rivers from the requirement to be vaccinated where he has a medical contraindication preventing him from being vaccinated. It was further open to Mr Hartley to uphold Mr Clarke’s decision that there were no alternate roles Mr Rivers could undertake while the requirement to be vaccinated applied to all staff of QAS.
  1. [133]
    As noted above, Mr Rivers is able to pursue matters regarding alleged adverse action, discrimination, and human rights breaches through other avenues. This appeal is limited to a decision as to whether Mr Hartley’s internal review decision received by Mr Rivers on 29 December 2022 was fair and reasonable.
  1. [134]
    I find that the decision-maker has properly considered the matters raised in Mr Rivers’ request for internal review. The decision is fair and reasonable.
  1. [135]
    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] I determined to consider this appeal as a fair treatment appeal seeking an external review of the internal review decision rather than an appeal against a suspension without pay.

[2] Letter from Dr Gordon Strachan, Peregian Springs Doctors, to the Queensland Ambulance Service, 31 August 2021.

[3] Email from Mr Sundance Rivers to the Queensland Ambulance Service, 27 November 2022.

[4] Email from Mr Sundance Rivers to the Queensland Ambulance Service, 5 February 2022.

[5] Letter from Mr Ray Clarke, Executive Director, Workforce, Queensland Ambulance Service to Mr Sundance Rivers, 10 November 2022, 4.

[6] Slykerman v State of Queensland (Queensland Health) [2022] QIRC 039, [35].

[7] Human Rights Act 2019 (Qld) s 58(6).

[8] Special Leave (Directive 05/17) sch 2.

[9] Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435, 465 per Dixon J (‘Automatic Fire Sprinklers’).

[10] [2004] 175 QGIG 444 (‘Labaj’).

[11] [2014] QIRC 84 (‘Hill’) [14].

[12] Emphasis added.

[13] [2000] 163 QGIG 364.

[14] (1993) 142 QGIG 397 (‘Tweddell’).

[15] Automatic Fire Sprinklers (n 9).

[16] Emphasis added.

[17] Combet v Commonwealth [2005] 224 CLR 494 per Kirby J (‘Combet’), citing Auckland Harbour Board v The King [1924] AC 318, 326 (‘Auckland Harbour Board’).

[18] Michael Toohey v Dr Dan White, Executive Director of Catholic Schools and legal representative of the Catholic Education Office [2017] FWC 4722, 113 (‘Toohey’).

[19] Ibid [179]-[183].

[20] The Queensland Public Sector Union of Employees v Department of Corrective Services [2003] ICQ 51.

[21] Automatic Fire Sprinklers (n 9); Labaj (n 10); Hill (n 11); AWU v O'Bryan (n 13); Tweddell (n 14); Combet (n 17); Auckland Harbour Board (n 17); Toohey (n 18).

[22] Hill (n 11) [14].

[23] Automatic Fire Sprinklers (n 9); Labaj (n 10); Hill (n 11); AWU v O'Bryan (n 13); Tweddell (n 14); Combet (n 17); Auckland Harbour Board (n 17); Toohey (n 18).

Close

Editorial Notes

  • Published Case Name:

    Rivers v State of Queensland (Queensland Ambulance Service)

  • Shortened Case Name:

    Rivers v State of Queensland (Queensland Ambulance Service)

  • MNC:

    [2023] QIRC 124

  • Court:

    QIRC

  • Judge(s):

    Pidgeon IC

  • Date:

    05 May 2023

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
Auckland Harbour Board v The King (1924) AC 318
2 citations
Jump To
Cite 1 - (1924) AC 318
Cite 2 - (1924) AC 318
Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435
2 citations
Jump To
Cite 1 - (1946) 72 CLR 435
Cite 2 - (1946) 72 CLR 435
AWU v O'Bryan [2000] 163 QGIG 364
2 citations
Jump To
Cite 1 - [2000] 163 QGIG 364
Cite 2 - [2000] 163 QGIG 364
Combet v Commonwealth (2005) 224 CLR 494
2 citations
Jump To
Cite 1 - (2005) 224 CLR 494
Cite 2 - (2005) 224 CLR 494
Day v Hutcheon [2014] QIRC 84
3 citations
Jump To
Cite 1 - [2014] QIRC 84
Cite 2 - [2014] QIRC 84
Cite 3 - [2014] QIRC 84
Lobaj v Lollo Plumbing Pty Ltd (2004) 175 QGIG 444
2 citations
Jump To
Cite 1 - (2004) 175 QGIG 444
Cite 2 - (2004) 175 QGIG 444
Michael Toohey v Dr Dan White, Executive Director of Catholic Schools and legal representative of the Catholic Education Office [2017] FWC 4722
3 citations
Jump To
Cite 1 - [2017] FWC 4722
Cite 2 - [2017] FWC 4722
Cite 3 - [2017] FWC 4722
Slykerman v State of Queensland (Queensland Health) [2022] QIRC 39
2 citations
Jump To
Cite 1 - [2022] QIRC 39
Cite 2 - [2022] QIRC 39
State of Queensland v The Queensland Public Sector Union of Employees (2003) 172 QGIG 1323
2 citations
Jump To
Cite 1 - (2003) 172 QGIG 1323
Cite 2 - (2003) 172 QGIG 1323
State of Queensland v The Queensland Public Sector Union of Employees [2003] QIC 116
1 citation
Jump To
Cite 1 - [2003] QIC 116
The Queensland Public Sector Union of Employees v Department of Corrective Services [2003] ICQ 51
2 citations
Jump To
Cite 1 - [2003] ICQ 51
Cite 2 - [2003] ICQ 51
Tweddell v Ehle Pty Ltd (1993) 142 QGIG 397
3 citations
Jump To
Cite 1 - (1993) 142 QGIG 397
Cite 2 - (1993) 142 QGIG 397
Cite 3 - (1993) 142 QGIG 397

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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