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  4. Wolff v State of Queensland (Queensland Health) - [2023] QIRC 14

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Wolff v State of Queensland (Queensland Health)[2023] QIRC 14

Wolff v State of Queensland (Queensland Health)[2023] QIRC 14

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Wolff v State of Queensland (Queensland Health) [2023] QIRC 014

PARTIES:

Wolff, Ryan Adam

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

PSA/2022/999

PROCEEDING:

Public Service Appeal – Appeal against a decision under a directive

DELIVERED ON:

19 January 2023

MEMBER:

Pidgeon IC

HEARD AT:

On the papers

ORDER:

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

CATCHWORDS:

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

LEGISLATION:

Health Employment Directive No 12/21 Employee COVID-19 vaccination requirements cls 1, 2, 6, 7, 8, 9, 10

Hospital and Health Boards Act 2011

Industrial Relations Act 2016 ss 562B, 562C

Public Service Act 2008 ss 187, 194

CASES:

Schmike v State of Queensland (Department of Education) [2022] QIRC 136

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

Reasons for Decision

Introduction

  1. [1]
    Mr Ryan Wolff (the Appellant) is employed by the State of Queensland (Queensland Health) (the Respondent). His appeal concerns an internal review decision of 31 October 2022 which confirmed the Respondent's earlier decision of 21 December 2021 to refuse his application for an exemption to Queensland Health's mandatory vaccine requirements which requires vaccination against COVID-19.
  1. [2]
    At the time of his exemption application, Mr Wolff was employed by the Respondent as a Senior Technology Officer (AO4) in the Digital Partnership Team, Customer Services, eHealth Queensland. His normal workplace was the Ballie Henderson Hospital.
  1. [3]
    On 1 November 2021, Mr Wolff was permanently appointed to the role of Principal Technology Officer (AO5), Presentation and Printing. His usual workplace became 108 Wickham Street, Fortitude Valley.
  1. [4]
    Also on 1 November 2021, Mr Wolff was seconded to the role of AO6 Operations Specialist, Presentation and Printing, Customer Services, eHealth Queensland. The Appellant remains seconded to this role with an end date of 13 February 2023.
  1. [5]
    On 26 September 2021, Mr Wolff applied for an exemption from Health Employment Directive No 12/21 Employee COVID-19 vaccination requirements (HED 12/21) on the grounds of a 'genuinely held religious belief'.
  1. [6]
    In support of his application, Mr Wolff provided a letter dated 26 September 2021 from Pastor Henry Peterson, His Grace Church, which confirmed that Mr Wolff was a member of the Church. Pastor Peterson stated that he 'strongly supported' Mr Wolff's exemption application as vaccination against COVID-19 would 'violate his conscience' and his 'sincerely held religious beliefs'. However, Pastor Peterson did not indicate that receiving a COVID-19 vaccination was contrary to the teachings of His Grace Church.
  1. [7]
    On 21 December 2021, Mr Wolff's exemption application was declined by Mr Damien Green, Deputy Director-General, eHealth Queensland.
  1. [8]
    On 31 December 2021, Mr Wolff subsequently requested an internal review of Mr Green's decision to deny his exemption from the requirements of HED 12/21.
  1. [9]
    The Appellant received the internal review decision by correspondence dated 31 October 2022 from Dr David Rosengren, Chief Operating Officer, Department of Health. Dr Rosengren advised Mr Wolff that the decision to refuse his exemption application had been confirmed. Dr Rosengren's correspondence was emailed to Mr Wolff on 4 November 2022.
  1. [10]
    Mr Wolff appeals the internal review decision dated 31 October 2022 and received by him on 4 November 2022.

Is the Appellant entitled to appeal?

  1. [11]
    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. [12]
    The appeal notice was filed with the Industrial Registry on 23 November 2022 within 21 days of the decision being received on 4 November 2022. I am satisfied that the Appellant may appeal the decision.

Appeal Principles

  1. [13]
    Section 562B(3) of the Industrial Relations Act 2016 (the IR Act) provides that 'the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable'.
  1. [14]
    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. [15]
    A public service appeal is not an opportunity for a fresh hearing, but a review of the decision arrived at by the decision-maker. To determine the appeal, I will consider whether the decision received by Mr Wolff on 4 November 2022 was fair and reasonable.
  1. [16]
    In deciding this appeal, s 562C(1) of the IR Act provides that the Commission may:
  1. (a)
    confirm the decision appealed against; or

…

  1. (c)
    for another appeal – set the decision aside, and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.

Directive 12/21

  1. [17]
    Directive 12/21 sets out the mandatory vaccination requirements for all current and prospective health service employees employed under the Hospital and Health Boards Act 2011 (the HHB Act).
  1. [18]
    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. [19]
    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. [20]
    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. [21]
    Clause 8 of Directive 12/21 sets out the mandatory vaccine requirements for existing employees as follows:
  1. 8.1Existing employees currently undertaking work or moving into a role undertaking work listed in a cohort of Table 1, must:
  1. a.have received at least the first dose of a COVID-19 vaccine by 30 September 2021; and
  1. 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. a.evidence of vaccination confirming that the employee has received at least the first dose of a COVID-19 vaccine by no later than 7 days after receiving the vaccine.
  1. b.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. [22]
    Clause 10 of Directive 12/21 provides that where an employee is unable to be vaccinated, an exemption may be granted as follows:
  1. 10.1Where an employee is unable to be vaccinated they are required to complete an exemption application form.
  1. 10.2Exemptions 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.
  1. 10.3If 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.

Mr Wolff's Appeal and Submissions

  1. [23]
    This appeal requires me to decide if the internal review decision of Dr David Rosengren dated 31 October 2022 and received by the Appellant on 4 November 2022 was fair and reasonable.
  1. [24]
    In Part C of his Appeal notice, Mr Wolff provides the reasons for his appeal:

The review of the decision to deny my application for exemption to the requirement for COVID-19 exemption was undertaken in regards to my substantive role, which I have not entered to date.  In the review process, the Chief Operating Officer did not consult with my current manager to ascertain whether or not my current role requires attendance at hospitals or other facilities where clinical care or support is provided, thus the Reasonable Adjustment checklist considered in the review was inaccurate and incorrect.  I am not required to work in or enter a facility where care is provided. There is no hospital or clinical care or support provided in the building where I work at 108 Wickham Street, Fortitude Valley in Brisbane, and I work remotely 80% of the time in my current role, which my current manager is satisfied with.  In my current role I have been able to work to my full capacity without attending any hospital or other facility where clinical care or support is provided.

As stated in his email, which formed part of the decision, Gary Mitchell, manager of my substantive role, did not meet with me to go through mandatory vaccination requirements.  I had a meeting with my current manager regarding vaccination requirements and it was agreed that I would wear a mask while attending the office at 108 Wickham St.

This review was not conducted in respect of the role I am currently engaging in and working in, therefore it has made conclusions that are inaccurate regarding my attendance at hospital or clinic sites. 

In my current role I have had ongoing career success meetings with my current manager and have received positive feedback regarding my remote/flexible work arrangements.  I have been able to work successfully with multiple stakeholders across the state within the parameters of my current flexible working arrangements.

  1. [25]
    Mr Wolff's appeal requesting an external review appears to be focussed on the fact that the exemption request was considered in the context of a role different to the one he is currently performing. 
  1. [26]
    I note that Mr Wolff's internal review request was focused on two matters: his religious beliefs and his view on the efficacy of the vaccines.
  1. [27]
    Apart from his reasons for appeal set out in his appeal notice and reproduced above at [24], Mr Wolff provided limited submissions. On 9 January 2023, Mr Wolff provided his final submissions in reply to the Respondent.  Those submissions addressed three topics, in summary, Mr Wolff:
  • considers his contribution to be of a high standard and of considerable value, has a desire to undertake the work that he has been employed to do, is dedicated and strives to improve performance in all aspects of his work;
  • says his commitment to his work will not take precedence over his bodily autonomy and his sincerely held religious beliefs;
  • believes that the COVID-19 vaccination requirement is unreasonable and unjustified and expects that in the future it will be overturned based on the discover and admission of evidence which shows that vaccines are neither safe nor effective; and
  • requests that Queensland Health make an exception to the COVID-19 vaccination requirement in his case, in consideration of their need for qualified and competent staff.

The Internal Review Decision

  1. [28]
    In a 7-page letter providing an extensive analysis and response to Mr Wolff's request for an internal review, Dr Rosengren informed Mr Wolff that he considered the decision made by Mr Green to refuse the request for an exemption from the COVID-19 vaccination was fair and reasonable and that the decision was confirmed.
  1. [29]
    In the internal review decision, Dr Rosengren gives consideration to Mr Wolff's submissions that he is now working in a role that is different to the one he was in when the exemption request was considered. 
  1. [30]
    Mr Rosengren states that cl 7 of HED 12/21 categorises employees into three groups being:
  • Group 1: All health service employees in residential aged care facilities and residential aged care within a multipurpose health service.
  • Group 2: All health service employees who are employed to work in a hospital or other facility where clinical care or support is provided.
  • Group 3: All other health service employees who are employed in roles that require attendance at a hospital or other facility where clinical care or support is provided.
  1. [31]
    Dr Rosengren notes that the role Mr Wolff is currently employed in (on secondment) is categorised as 'Group 3'.  Further, Dr Rosengren notes that Mr Wolff's current substantive role is also categorised as 'Group 3'. Dr Rosengren says that at the time the exemption application was considered, Mr Wolff was employed in his previous role which was categorised as 'Group 2'.
  1. [32]
    Dr Rosengren goes on to state that although Mr Wolff has changed roles since the exemption application was considered, HED 12/21 mandates that in each of the roles, Mr Wolff be vaccinated against COVID-19 as a condition of his employment.
  1. [33]
    Dr Rosengren notes Mr Wolff's submissions addressing his genuinely held religious beliefs. Dr Rosengren also acknowledges Mr Wolff's right to hold his religious beliefs with respect to his Christianity and states that he has considered Mr Wolff's submissions regarding these religious beliefs and how they are inconsistent with his ability to receive a COVID-19 vaccine.  However, Dr Rosengren says that he does not consider Mr Wolff's religious beliefs outweigh or take precedence over the other factors which he must take into account, including the objects and requirements of HED 12/21 and Queensland Health's health and safety obligations.
  1. [34]
    Dr Rosengren also notes Mr Wolff's concerns that the COVID-19 vaccines contain substances that may harm his body, and that this violates his closely held religious beliefs.  Mr Rosengren states that he COVID-19 vaccines have undergone all of the usual assessments and have been approved by the Therapeutic Goods Administration.  Mr Rosengren states that the approval of the vaccines is a matter of public record and is evidence of their safety and efficacy.
  1. [35]
    Dr Rosengren notes Mr Wolff's internal review submission referring to the Ezekiel Declaration, August 2021.  Dr Rosengren states that this Declaration related to a petition against vaccination passports used for travelling overseas, led by Baptist Church leaders.  Dr Rosengren states that this is relevant to his application for exemption from complying with HED 12/21.  Further, Dr Rosengren notes that the leadership of the Christian Church Australia encourages their followers to become vaccinated.
  1. [36]
    Dr Rosengren states that he does not consider HED 12/21 amounts to coercion and says that Mr Wolff continues to have a choice, whether to become vaccinated or not, and that he is aware of the potential consequences of each choice.  Dr Rosengren then goes on to provide information regarding the significant risk posed to Queensland Health staff, patients and the broader community.  Dr Rosengren discusses the benefits of COVID-19 vaccination, the reasons for HED 12/21 and says that he considers that the COVID-19 vaccinations have proven to be successful in preparing the State for outbreaks of COVID-19. 
  1. [37]
    Dr Rosengren then addresses Mr Wolff's concerns regarding vaccine efficacy and states that these concerns do not warrant an exemption on the grounds of genuinely held religious beliefs. Mr Rosengren also says that he believes that the broader issue of public health risk outweighs personal views on vaccine efficacy.
  1. [38]
    With reference to the decision of the Queensland Industrial Relations Commission (QIRC) in Slykerman v State of Queensland (Queensland Health),[1] Dr Rosengren notes that the Appellant, Ms Slykerman, had applied for an exemption on the basis of genuinely held religious belief and says that the Commission confirmed that HED 12/21 is reasonable and lawful.
  1. [39]
    Dr Rosengren goes on to say that he is satisfied that there are no other less restrictive means, other than vaccination, which would sufficiently ensure Mr Wolff's safety at work, as well as the safety of other staff, and patients.
  1. [40]
    Dr Rosengren outlines the actions taken by Mr Green in deciding to decline Mr Wolff's exemption application and says that when considering the requirements under Directive 11/20 and says that he is satisfied that the decision made by Mr Green was fair and reasonable.  Dr Rosengren states that he acknowledges that the decision limits a number of Mr Wolff's human rights but says that he is satisfied that any limitation on Mr Wolff's human rights is justified by the need to ensure the readiness of the health system in responding to the pandemic and that he considers that Queensland Health's position in relation to the impacts of the decision upon human rights, is reasonably justified.

Consideration of submissions

Appeal Ground 1: Mr Wolff is now in a different role

  1. [41]
    I note Mr Wolff's appeal ground that he is now working in a different role to that he was in when the original exemption request was considered and that he has been successfully performing 80% of the role remotely. The Respondent says that while Mr Wolff has been approved to work from home pending the consideration of his exemption application, it is not possible for this to continue on a permanent or indefinite basis and that the fact that Mr Wolff can perform some duties at home does not mean he does not fall within 'Group 3'.
  1. [42]
    I am satisfied that while he is employed in a different role now, that role is categorised as 'Group 3' under the HED 12/21 and therefore the mandate requiring vaccination against COVID-19 applies to Mr Wolff.
  1. [43]
    In its submissions filed 14 December 2022, the Respondent acknowledges that Mr Wolff's current workplace is located at 108 Wickham Street, Fortitude Valley. However, the Respondent says that eHealth Queensland is responsible for information and communication technology service support to hospitals and facilities and that Mr Wolff is required to be able to physically attend these locations when required. The Respondent says that this means that attendance may be required in different clinical areas and wards within hospitals and/or hospital environments. The Respondent says that currently, Mr Wolff is unable to attend to these duties and that it is not fair for Mr Wolff's colleagues to be expected to perform these duties for him in the long term.[2]
  1. [44]
    The Respondent submits that in the absence of an approved exemption from HED 12/21, neither the Department, nor eHealth Queensland, are obliged to alter Mr Wolff's role or duties to accommodate his refusal to be vaccinated.
  1. [45]
    Mr Wolff's ground of appeal regarding consideration of his current role fails.  It was fair and reasonable for Dr Rosengren to consider the internal review on the basis that the vaccination mandate applies to Mr Wolff.  Mr Wolff may have a different view about whether his role should require him to be vaccinated or not, but this appeal is a review of the application for an exemption on the basis of genuinely held religious belief.  It is not an avenue for debate about the content of HED 12/21 and in what working environments or arrangements the mandate should and should not apply.  Mr Wolff is an employee who is required to be vaccinated. Therefore the focus of my consideration will be with regard to the decision of Mr Rosengren that it was fair and reasonable for Mr Green to determine that the exemption on the basis of genuine religious belief would be declined.

Appeal Ground 2: Mr Wolff's sincerely held religious beliefs

  1. [46]
    Mr Wolff has offered no additional submissions as to why he says Dr Rosengren's decision was not fair and reasonable as it pertains to his religious beliefs.
  1. [47]
    The Respondent notes that Mr Wolff is not entitled to receive an exemption from the vaccine on the grounds of his religious beliefs and says that ultimately, the considerations about workplace and community safety had to take precedence over Mr Wolff's religious beliefs.
  1. [48]
    I have read the letter under the hand of Pastor Henry J Peterson of the By His Grace Church dated 26 September 2021 which Mr Wolff attached to his application for exemption.  In that letter, Pastor Peterson does not state that the church has directed Mr Wolff to refuse the vaccine. Rather, in his letter, Pastor Peterson relays the things that Mr Wolff has told him regarding his belief that God had told him not to take the vaccine.  Pastor Peterson says that he believes that Mr Wolff's religious convictions are 'sincere and well-grounded in the Scriptures'.  Dr Rosengren lists the letter from Pastor Peterson as one of the documents he considered in the internal review. 
  1. [49]
    It is clear that Dr Rosengren gave consideration to submissions addressing religious beliefs put forward by Mr Wolff in his application for internal review (see above [33] to [35]).  I am satisfied that Dr Rosengren properly considered Mr Wolff's submissions and material and has provided comprehensive reasons as to why he determined to uphold the decision of Mr Green to decline the exemption application.
  1. [50]
    I find that it was reasonable for Dr Rosengren to determine that there was no less restrictive means other than vaccination, which would sufficiently ensure Mr Wolff's safety at work, as well as the safety of other staff, and patients.

Other matters

  1. [51]
    It is clear that Mr Wolff has received procedural fairness and natural justice throughout the process.  He has exercised his right to request an internal review of the decision to decline his application for an exemption, he was informed of his ability to appeal that decision and seek an external review.  Mr Wolff's submissions and concerns have been properly considered and responded to in the thoughtful and detailed decision of Dr Rosengren.  It appears that Mr Wolff has been the beneficiary of a range of alternative arrangements which have enabled him to continue working pending the outcome of his internal review and this appeal.
  1. [52]
    Mr Wolff's request for an internal review made a suggestion that Queensland Health adopt the approach he says is taken in Japan where the vaccine is not mandated in workplaces.  This is not a submission in support of overturning the decision not to provide an exemption on the basis of genuine religious belief, rather a suggested policy position.  It was reasonable for Dr Rosengren to dismiss this submission, and other suggestions Mr Wolff made about how best to manage him as an unvaccinated employee as they were not relevant to the matter being reviewed.
  1. [53]
    I am satisfied that the internal review decision of Dr Rosengren addressed Mr Wolff's human rights and explained the basis upon which he had determined that any impact on Mr Wolff's human rights was justified in the circumstances.

Conclusion

  1. [54]
    I have reviewed the decision of Dr Rosengren dated 31 October 2022 and all submissions and attachments filed for my consideration. The onus rests on the Appellant to demonstrate the unreasonableness of the decision appealed against. Mr Wolff has been unable to demonstrate any way in which Dr Rosengren's decision is deficient or unfair.
  1. [55]
    I am satisfied that the decision of Dr Rosengren to uphold the decision of Mr Green to refuse Mr Wolff's application for exemption from HED 12/21 was fair and reasonable. 
  1. [56]
    The decision clearly states that as a result of the decision that Mr Wolff's exemption request was properly declined, his role continues to require him to be vaccinated against COVID-19 with a Therapeutic Goods Administration endorsed vaccine as per HED 12/21.  The letter directs Mr Wolff to receive his first dose of a COVID-19 vaccine and provide written confirmation that he has complied with the requirement. The letter informs Mr Wolff that should he fail to follow the lawful direction, he may be liable for disciplinary action pursuant to section 187(1)(d) of the Public Service Act 2008.  I note Mr Wolff's submission that his commitment to work will not take precedence over his bodily autonomy and his sincerely held religious beliefs.  It is a matter for Mr Wolff to determine if he wishes to become vaccinated in order to comply with HED 12/21.  However, refusal to do so will likely result in serious consequences for his employment with the Respondent.

Order

  1. [57]
    Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appealed against is confirmed.

Footnotes

[1] [2022] QIRC 039.

[2] Schmike v State of Queensland (Department of Education) [2022] QIRC 136, [39].

Close

Editorial Notes

  • Published Case Name:

    Wolff v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Wolff v State of Queensland (Queensland Health)

  • MNC:

    [2023] QIRC 14

  • Court:

    QIRC

  • Judge(s):

    Pidgeon IC

  • Date:

    19 Jan 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
Schimke v State of Queensland (Department of Education) [2022] QIRC 136
2 citations
Jump To
Cite 1 - [2022] QIRC 136
Cite 2 - [2022] QIRC 136
Slykerman v State of Queensland (Queensland Health) [2022] QIRC 39
2 citations
Jump To
Cite 1 - [2022] QIRC 39
Cite 2 - [2022] QIRC 39

Cases Citing

No judgments on Queensland Judgments cite this judgment.

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