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  4. Crittenden-Godley v State of Queensland (Queensland Health) - [2023] QIRC 275

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Crittenden-Godley v State of Queensland (Queensland Health)[2023] QIRC 275

Crittenden-Godley v State of Queensland (Queensland Health)[2023] QIRC 275

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Crittenden-Godley v State of Queensland (Queensland Health) [2023] QIRC 275

PARTIES:

Crittenden-Godley, Helen Louise

(Appellant)

v

State of Queensland (Queensland Ambulance Service)

(Respondent)

CASE NO.:

PSA/2022/1021

PROCEEDING:

Public Sector Appeal – Fair Treatment Decision

DELIVERED ON:

25 September 2023

MEMBER:

Power 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 – where the Health Employment Directive No. 12/21– Employee COVID-19 vaccination requirements applied – where appellant sought an exemption – exemption approved conditionally – whether conditions imposed fair and reasonable

LEGISLATION:

Ambulance Service Act 1991 (Qld)

Industrial Relations Act 2016 (Qld), ss 562B, 562C, 580

Public Sector Act 2022 (Qld), 104, 289, and 384

Public Service Act 2008 (Qld), s 174, and194

CASES:

Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245

Gilmour v Waddell & Ors [2019] QSC 170

Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018)

Graf and Ors v State of Queensland (Department of Education [2022] QIRC 451

Reasons for Decision

Introduction

  1. [1]
    Ms Helen Louise Crittenden-Godley ('the Appellant') is employed by the State of Queensland (Queensland Ambulance Service) ('the Respondent') within the Toowoomba District as an Advanced Care Paramedic II.
  1. [2]
    On 13 September 2021, the Code of Practice and QAS HR Procedure – COVID-19 Vaccine requirements ('the Procedure') was published. On 31 January 2022 pursuant to s 14 of the Ambulance Service Act 1991 (Qld) ('AS Act'), the Procedure was replaced by a policy under the Health Employment Directive 12/21 regarding employee COVID-19 vaccination requirements ('the Directive').
  1. [3]
    Clause 1 of the Directive provides that compliance with the Directive is mandatory. Clause 4 of the Directive provides that the Directive applies to all health service employees employed and prospective employees to be employed under the HHB Act.
  1. [4]
    Clause 8.1 of the Directive provides:

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

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

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

…

•  The requirements of this clause 8 do not apply to existing employees who have been granted an exemption under clause 10 of this HED.

  1. [5]
    Clause 10.2 of the Directive provides an exemption application will be considered where the employee has a recognised medical contraindication, the employee has a genuinely held religious belief or where another exceptional circumstance exists.
  1. [6]
    On 28 September 2021, the Appellant applied for an exemption to the mandatory vaccine requirements of the Directive due to a recognised medical contraindication to the COVID-19 vaccine.
  1. [7]
    The Appellant was unable to attend her workplace from 1 November 2021 while remaining unvaccinated against COVID-19, the Appellant was placed on paid special discretionary leave until 7 February 2022 when she commenced alternative duties. The alternative duties continued until a decision was released.
  1. [8]
    On 6 July 2022, the Appellant provided a copy of her updated Immunisation History Statement and the COVID-19 Digital Certificate indicating the Appellant had a medical contraindication to the following vaccines: Pfizer, AstraZeneca, Moderna and Novavax vaccines.
  1. [9]
    By letter dated 10 November 2022, Mr Ray Clarke, Executive Director Workforce, advised the Appellant that her exemption request had been conditionally approved until 30 June 2023 and outlined the following reasons the Appellant is unable to continue her normal duties:
  • Your role as an Advanced Care Paramedic, falls within the categories of 'Group 1' and 'Group 2' under clause 2 of the QAS HR Policy. Group 1 includes all QAS employees working in or providing services to residential aged care facilities and residential aged care within a multipurpose health service, Group 2 includes all QAS employees who are employed to work in a hospital or other healthcare setting where clinical care or support is provided. It includes clinical and non-clinical employees.
  • Healthcare workers face a higher risk of COVID-19 infection and illness compared to the general population due to the nature of their work. Healthcare workers are also required to have frequent interactions with vulnerable patients who may be immunocompromised.
  • You work in ambulance services with suspected or confirmed COVID-19 patients or where a COVID-19 patient may be treated.
  • You come into direct or indirect contact with people who work in a hospital or healthcare facility with COVID-19 patients or where suspected or actual COVID-19 patients may enter.
  • You have the higher potential to expose patients, clients, other staff or the broader community to COVID-19 (e.g. occupying shared spaces such as lifts, cafeterias, vehicles, car parks, with people working with suspected or actual COVID-19 patients) or to be exposed to the virus due to the nature of your work in ambulance services.
  • In undertaking the duties of an Advanced Care Paramedic, it is not reasonably practicable for you to physically distance from your patients or colleagues. There is also a requirement for rapid donning/doffing of personal protective equipment (PPE) in emergent situations.
  • Alternative control measures (including rapid antigen testing (RATs) are unlikely to be equally as effective as a vaccination requirement. RATs are not 100% effective. They can provide false positives and false negatives. Further, people tend to use RATs or PCRs when they are symptomatic, however COVID-19 can be spread by people who are pre-symptomatic or asymptomatic. Testing is a reactive measure rather than a proactive measure like vaccination. There are also cost implications for providing RATs. Even if RATs were to be utilised, that would not mean that vaccination is not also required to mitigate the risks of COVID-19. The precautionary principle applied by epidemiologists provides that from a public health perspective, all reasonable and effective measures to mitigate the risk should ideally be put in place, not merely some of those measures.
  • Similarly, in respect of the utilisation of personal protective equipment (PPE), whilst this is considered an important protective measure which is utilised within the QAS, it should not be viewed or utilised in isolation, or to the exclusion of other control measures such as vaccination. The obligation for employers under the provisions of the Work Health and Safety Act 2011 are to ensure, so far as reasonably practicable, the health and safety of workers and other persons. Vaccination, when used in combination with other effective and reliable risk control measures such as PPE, are currently the most reasonably practicable means to protect against serious illness from COVID-19. As noted above, all reasonable and effective measures to mitigate the risk should ideally be put in place, not merely some of those measures, in order to appropriately meet those obligations.
  1. [10]
    Mr Clarke subsequently outlined conditions under which the exemption has been granted:
  • You will be unable to attend any QAS workplace (except 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.
  1. [11]
    Due to the nature of the Appellant's medical contraindication, Mr Clarke advised the Appellant that it is appropriate for the matter to be referred to a separate decision maker within QAS for consideration as to whether she would be required to submit an independent medical examination.
  1. [12]
    On 18 November 2022, Ms Efthimia Voulcaris wrote to QAS on behalf of the Appellant, requesting an internal review in respect to the following:

a.  an alleged decision not to make reasonable adjustments, including alternative work arrangements, for the duration of the Appellant's time limited exemption; and

b.  an alleged failure by Mr Clarke to apply relevant QAS policies and procedures to his decision

  1. [13]
    Subsequently, Ms Voulcaris stated the Appellant had successfully performed alternative duties for the previous six months and was not consulted prior to concluding the Appellant's alternative duties.
  1. [14]
    After conducting a review of the decision, Mr David Hartley (Mr Hartley), Assistant Commissioner, Strategic Operations advised the Appellant that he was satisfied that:
  1. Mr Clarke did not fail to consider the provisions of the QAS WHS Policy Statement in relation to the matter;
  1. Reasonable adjustments were unable to be made, including the conclusion that alternate work arrangements were unavailable for the duration the Appellant's time-limited exemption; and
  1. Mr Clarke has not failed to apply relevant QAS policies or procedures to his decision in relation to the Appellant's circumstances and the decision to refer the matter to an alternate decision-maker within the QAS for consideration as to whether the Appellant should be required to submit to an independent medical examination under s 175 of the PS Act (now repealed).[1]
  1. [15]
    On 16 December 2022, the Appellant filed an appeal notice, appealing against the decision of Mr Hartley dated 1 December 2022, pursuant to s 194(1)(eb) of the Public Service Act 2008 (Qld).[2]
  1. [16]
    The Public Sector Act 2022 ('PS Act') commenced operation on 1 March 2023. Pursuant to s 289 of the PS Act, the appeal must be heard and decided under chapter 3, part 10.

Appeal principles

  1. [17]
    The appeal must be decided by reviewing the decision appealed against.[3] As the word 'review' has no settled meaning, it must take its meaning from the context in which it appears.[4] An appeal under ch 11 pt 6 div 4 of the Industrial Relations Act 2016 (Qld) ('the IR Act') is not by way of rehearing,[5] but involves a review of the decision arrived at and the decision making process associated therewith.
  1. [18]
    The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.[6] The issue for determination is whether the review decision of Mr Hartley was fair and reasonable. Findings which are reasonably open to the decision maker are not expected to be disturbed on appeal.

What decisions can the Industrial Commissioner make?

  1. [19]
    In deciding this appeal, s 562C of the IR Act provides that the Industrial Commissioner may:
  1. confirm the decision appealed against; or
  1. set the decision aside and substitute another decision; or
  1. set the decision aside and return the issue to the decision maker with a copy of the decision on appeal and any directions considered appropriate.

Grounds of Appeal

  1. [20]
    The Appellant appeals the decision on the basis of:
  1. The conditions applied to the time-limited exemption that was granted to the Appellant; and
  1. The refusal to continue the Appellant's suitable duties for the duration of their time-limited exemption.

Appellant's submissions

  1. [21]
    The Appellant submits that the decision is unfair and unreasonable, submitting, in summary, that:
  • The Appellant has been a long-time participant within the QAS since January 1993;
  • The Appellant has been aware of sensitivities/allergies to different foods, medications and other products for all of her adult life. This was not a problem for the Appellant from a work perspective until the flu vaccine was made mandatory for paramedics in 2020. The Appellant had the vaccination as required and had a severe allergic reaction to it as confirmed by her general practitioner (GP) Dr Shirley Butler.
  • The QAS granted the Appellant an exemption to the flu vaccine. The Respondent did not impose any restrictions on her ability to attend any QAS workplaces or the Appellant's ability to continue normal duties;
  • Due to the Appellant's known allergies and previous severe reaction to the flu vaccine and subsequent anaphylactic reactions since that time, the Appellant applied for an exemption from the mandatory COVID-19 vaccination on medical grounds;
  • The Appellant's application for exemption was supported by her general practitioner who provided a letter that was included with the exemption application;
  • There has been no explanation why the COVID exemption is treated differently to the flu vaccination requirement at the time. The QAS HR Policy for COVID-19 Vaccination outlines in clauses 1, 2 and 3 outline the risks assessment, what QAS staff are required to be vaccinated and requirements for existing employees. Clause 5 outlines exemption processes and that those with exemption are not required to comply with Clause 3. 
  • Since February 2022, the Appellant had been working from home for QAS undertaking non-transport audits. Initially there were some technical issues, but this was quickly rectified, and the Appellant was able to complete the required audits of non-transport cases;
  • Completing audits was a new skill for the Appellant to learn and performed well. The Appellant worked through some practical training with a Clinical Education Unit officer.
  • As the Appellant worked through these non-transport cases she became increasingly aware of the frequency of poor documentation which left both the officers and the QAS open to possible legal ramifications. Without proper documentation there is no tangible way to quantify the care given to patients;
  • The Appellant believe the work she had been doing was meaningful and beneficial to the QAS by ensuring the maintenance of a quality framework around non-transport cases. An area of our profession that has proven to be high risk to ambulance services and patients alike.
  • The Appellant was aware from her time doing the audits that staff in the Clinical Education unit would only get to a very small number of audits per month due to their work loads. By completing a significant portion of the audits, there was an increase in opportunities for staff productivity whilst decreasing the workload for the clinical education unit;
  • An internal review into the decision about the exemption conditions was completed by Assistant Commissioner David Hartley;
  • The Appellant believes the outcome of this review and the decision to uphold the previous conditions are unfair and has not been given full consideration. This appears to be a review of the process undertaken by Mr Ray Clarke, not a review of the decision made about alternative work arrangements as requested.
  • The Appellant submits that it appears that Mr Clarke may not have been aware of her alternative duties. The Appellant states that she was not contacted about the cessation of her alternative duties and that such a decision should not have been made without consultation with her.
  • The Appellant believes that anyone who is being put through such a potentially life changing process deserves to be contacted for a conversation;
  • The Appellant contends there are other jobs within the QAS that do not involve direct patient contact and are low risk when it comes to COVID19 transmission. In addition to the auditing skills that the Appellant now possess, the Appellant also has many other skills from her 30 years of working for the QAS. QAS have not asked for the Appellant to provide information about her skills and how the Appellant could meaningfully contribute to the organisation that have been a part of for 30 years;
  • Toowoomba station is not only the largest station in the Southwest region but is also often used as a hub for stores and equipment. For several years, the Appellant ordered and maintained patient care stores for the station with another officer;
  • The Appellant has always maintained the ambulance in a meticulous fashion'. Deep cleaning and maintenance of the patient care compartment of ambulance vehicles is another area that is low risk from a COVID-19 perspective and often overlooked by busy and overworked crews who are spending hours ramped at hospitals and working 12 to 14 hours plus often without a proper meal break. Given that QAS will not allow the Appellant to set foot inside their facilities, the Appellant suggested many times that undertaking this activity could be done at alternate locations such as a fire station where there are no such Covid vaccination mandates;
  • The Appellant further submits that this process has been difficult for both herself and her family; and
  • The Appellant submits that it was fair and reasonable for QAS to have continued her alternative duties for the duration of the time-limited exemption. QAS ceased the alternative duties, ceased paying the Appellant and provided no procedural fairness in the process.

Respondent's submissions

  1. [22]
    The Respondent contends that the decision is fair and reasonable, submitting that:
  • The decision to conditionally approve the Appellant's exemption application, including the determination that reasonable adjustments were unable to be made at that time, was fair and reasonable. It was reasonable when Mr Clarke made the decision, and it was reasonable when Mr Hartley confirmed it. Further, there was no failure to apply relevant QAS policies or procedures to Mr Clarke's decision in respect to the Appellant's circumstances;
  • The effect of the Policy is that the Appellant was unable to perform her usual duties as an Advanced Paramedic II unless she became vaccinated against COVID-19;
  • Consideration was given as to whether any reasonable adjustments, including alternative work arrangements, could be made to enable the Appellant to work while she is unable to receive a COVID-19 vaccine. Given the nature of the duties of an Advanced Paramedic II, no reasonable adjustments could be made to those duties which would permit the Appellant to perform those duties while she is not vaccinated against COVID- 19;
  • It is acknowledged that the Appellant was provided alternative duties while her application for an exemption was being considered, however those alternative duties are not sustainable for the reasons set out in Mr Hartley's letter. In this regard:
  1. Although Ms Crittenden-Godley was performing patient non-transport reviews and audits, these duties were temporary in nature, they are not intended as a long-term solution to Ms Crittenden-Godley's inability to be vaccinated.
  2. While patient non-transport reviews and audits fall within the scope of the paramedic role, these duties are subject to peer review as part of quality assurance processes. Non-transport cases are periodically reviewed for their respective station, and a Region's Clinical Education Unit provide oversight and review of areas of concern.
  3. There is no requirement for every non-transport to be reviewed. Accordingly, such duties do not require any long-term or continuous allocation of resources and would generally be managed by the existing resources within the regional structure.
  4. There is an insufficient volume of reviews and audits for Ms Crittenden-Godley to perform on a full-time basis. Further, there are no other alternative duties which Ms Crittenden-Godley could perform on a full-time basis from her home or a QAS workplace which does not require her to be vaccinated.
  5. Importantly, Ms Crittenden-Godley's Regional Assistant Commissioner was consulted about a suitable alternate role for her to undertake while she is unable to work in her substantive role. The Regional Assistant Commissioner advised there were no suitable roles available which did not require vaccination against COVID-19 at that time.
  • For these reasons, it was fair and reasonable for QAS to determine reasonable adjustments were unable to be made for the Appellant's role, alternate work arrangements were not available at the time, and it was unable to approve the Appellant's request for the recommencement of alternative duties for the duration of her time-limited exemption;
  • Mr Hartley advised the Appellant if the performance of alternate duties became available and operationally required within the Region in the future, his decision would not preclude her from being engaged to perform such duties while her time-limited exemption remained effective, should such duties become available, and she had the necessary skills to perform them;
  • The Policy was implemented as a critical risk control to manage the health and safety risks of COVID-19 for QAS employees, patients, and the broader community. The decision to place conditions on the Appellant for the duration of the temporary exemption from the Policy is consistent with the QAS Workplace Health and Safely Policy Statement - Employee Health and Fitness for Duty. The nature of the Appellant's condition is such that a rehabilitation process is not possible: the purpose of any rehabilitation is to return an employee to their substantive position. The Appellant is unable to do this while she is not able to be vaccinated against COVID-19;
  • To the extent it was argued the QAS HR Procedure — Displaced Tenure Employees had not been properly considered or applied to the Appellant's circumstances, in that she had been displaced from her substantive role due to the exemption conditions, this is incorrect. The purposes of the Displaced Tenure Employees Procedure are not relevant to these particular circumstances of the Appellant on the basis the COVID-19 vaccination requirements under the Policy do not constitute a workplace change as defined in the HR Procedure;
  • Neither Mr Clarke nor Mr Hartley failed to apply relevant QAS policies or procedures when making his decision to conditionally approve Ms Crittenden-Godley's exemption. There is no evidence provided by Ms Crittenden-Godley that would indicate otherwise. Mr Hartley's letter is comprehensive in its consideration of the relevant policies and the submissions made by Ms Crittenden-Godley;
  • Mr Hartley carefully considered whether the decision made by Mr Clarke is fair and reasonable in the circumstances with respect to Ms Crittenden-Godley's human rights. Mr Hartley specifically advised Ms Crittenden-Godley although his decision may limit her human rights, he was satisfied those limits on human rights were justified, particularly given the need to ensure the readiness of the health system in responding to the COVID-19 pandemic and to protect the lives of employees, patients and the community they serve, the implementation of the Policy as a critical risk control to manage the health and safety risks of COVID-19 for employees, patients and the broader community, and the requirement for QAS to discharge their legal obligations; and
  • In circumstances where the Appellant was unable to receive a COVID- 19 vaccine due to a medical contraindication, it was reasonable to conclude she was unable to attend the workplace of any other QAS location at which COVID-19 vaccination was required. Further, it was fair and reasonable to impose the conditions on the exemption granted to the Appellant.

Consideration

  1. [23]
    The Appellant appeals an internal review by Mr Hartley of Mr Clarke's decision relating to the provision of alternative duties for the duration of the Appellant’s exemption from compliance with the QAS HR Procedure and Code of Practice with respect to COVID-19 vaccine requirements.
  1. [24]
    The Appellant sought an internal review of the decision by Mr Clarke, submitting that Mr Clarke failed to make reasonable adjustments, including alternative work arrangements for the duration of the exemption and failed to apply the relevant QAS policies and procedures to the decision.
  1. [25]
    The Appellant submits that she had been performing alternative duties and making a valuable contribution to the QAS in auditing non-transport cases. The Appellant contends that the QAS did not provide an explanation or afford her procedural fairness in relation to the decision that there was no reasonable adjustments or alternative work arrangements available.
  1. [26]
    The Appellant submits that consideration was not given to the alternative duties being performed and the decision was made without giving consideration to the Appellant's circumstances.
  1. [27]
    Mr Hartley's decision refers to the decision of Mr Clarke which stated:

I have also given consideration to whether any reasonable adjustments, including alternative work arrangements, can be made to enable you to perform your role outside a healthcare setting. I have determined that no reasonable adjustments or alternative working arrangements are available or appropriate in the current circumstances having regard to the nature of your role which requires workplace attendance at all times in normal circumstances.

I have also consulted with your Regional Assistant Commissioner in an attempt to find a suitable alternate role for you to undertake whilst you are unable to work in your substantive role while this time-limited exemption is in effect. I am advised that at present, there are not suitable roles available which do not require vaccination against COVID-19.

  1. [28]
    It was open to Mr Hartley to determine that Mr Clarke had given reasonable consideration to whether reasonable adjustments or alternative work arrangements could have been made to enable the Appellant to perform her role outside of a healthcare setting.
  1. [29]
    Mr Hartley proceeded to note that Mr Clarke's assessment had been of the role as an Advanced Care Paramedic and he had considered whether the duties, responsibilities and requirements of the role could be performed if reasonable adjustments were made or whether alternative work arrangements could have enabled the Appellant to continue to perform the role. Mr Hartley concurred with Mr Clarke's assessment that no reasonable adjustments or alternative work arrangements were available or appropriate in the circumstances. It was open to Mr Hartley to agree with Mr Clarke's assessment following his consideration of the decision.
  1. [30]
    The decision proceeds to consider that Mr Clarke turned his attention to whether there were any opportunities to place the Appellant into an alternate role while the exemption was in effect. Mr Clarke stated that he had consulted with the Appellant's Regional Assistant Commissioner, and it was determined that no suitable roles were available which did not require vaccination against COVID-19. 
  1. [31]
    Mr Hartley considered the Appellant's submission that Mr Clarke was unaware that she had been undertaking audits of patient non-transport as alternate duties and that a blanket decision had been made. Mr Hartley notes the content of an email from Mr Clarke to the Appellant's representative on 15 November 2022 as indicating that Mr Clarke did not make a blanket decision and was aware that the provision of alternative duties have been temporary in nature with their suitability and availability dependent on the particular needs of Regions.
  1. [32]
    The decision confirms that Mr Hartley was satisfied that Mr Clarke had consulted with the Region and was aware that the Appellant had been undertaking patient non-transport audits. Mr Hartley was further satisfied that through these consultations Mr Clarke determined that there were significant impediments to the continuing performance of these duties including issues related to the information systems and technology, the lack of continuing need for an Advanced Care Paramedic to perform these duties; the lack of volume to sustain the Appellant's contracted hours of employment and the lack of availability of other alternative duties that were meaningful and required to be performed.
  1. [33]
    Mr Hartley was satisfied on the information before him that specific consideration was given to the Appellant's personal circumstances, the requirements of her role as an Advanced Care Paramedic, and the ongoing business requirements and responsibilities of the QAS. In circumstances where the duties undertaken by the Appellant in auditing patient non-transport were not required long-term and could be managed by existing resources, it was reasonable for Mr Clarke to determine that this was not a long-term solution to the Appellant's inability to be vaccinated. The decision outlines the reasons for Mr Hartley's decision and demonstrates a sound basis for the decision.
  1. [34]
    Finally, Mr Hartley considered the Appellant's submission with respect to communication and determined that the communication regarding the Appellant's ongoing work arrangement was appropriate. It was also determined that it was reasonable for Mr Clarke to expect that contact would be made with the Appellant through the usual Regional supervisory structure to finalise the current work being undertaken by the Appellant. This was not an unreasonable expectation and it was open to Mr Hartley to be satisfied that the communication to the Appellant was appropriate in the circumstances.
  1. [35]
    Whilst the decision confirmed the decision of Mr Clarke, Mr Hartley noted that in the event that alternate duties become operationally required to be performed and available within the Region, the decision would not restrict the Appellant's ability to undertake any such available duties if she has the necessary skills to perform the duties required.
  1. [36]
    The Appellant submits that the decision did not comply with the QAS Workplace Health and Safety Policy Statement (WHS Policy Statement). Mr Hartley noted that the statements from the WHS Policy Statement that had been referred to by the Appellant were not considered in the context of other statements in the Policy. Mr Hartley noted that the context included the broader policy intent and the circumstances directly relevant to the Appellant's situation. Mr Hartley notes that the QAS HR Policy was implemented as a critical risk control to manage the health and safety risks of COVID-19 for employees, patients and the broader community which he considers to be entirely consistent with the intent of the WHS Policy statement. In making this determination, the decision refers to the first sentence of the WHS Policy Statement:

"The QAS is committed to ensuring that systems are in place to protect and promote the health and fitness for duty of our workforce."

"The rights and responsibilities of all parties are considered and all reasonable efforts are made to balance the requirements upon the QAS to ensure the health and safety of workers, patients and the general community of Queensland."

  1. [37]
    In considering the QAS HR Policy in the context of the WHS Policy Statement, particularly its focus on the health and fitness for duty of the QAS workforce, it was open to Mr Hartley to determine that the decision was consistent with the policy intent of the WHS Policy Statement.
  1. [38]
    The Appellant submits that the QAS did not discuss any potential rehabilitation process of the Appellant's condition and the QAS did not enable the Appellant to partner with the organisation by consulting her during the recovery from her medical condition. Mr Hartley determined that such requests were premature on the basis that Mr Clarke had only provided a time-limited exemption based upon the medical information provided. Mr Hartley noted that the Appellant had not provided any medical information to the QAS indicating that her condition was one that is possible to be rehabilitated or recovered from with the support of the QAS or through any other means. In those circumstances, it was open to Mr Hartley to determine that Mr Clarke had reasonably foreshadowed referral to a separate decision-maker for consideration as to whether the Appellant should be required to submit to an independent medical examination rather than proceed to rehabilitation. Mr Hartley's determination that Mr Clarke had adopted a reasonable approach which did not contravene QAS WHS Policy was open to him in the circumstances.
  1. [39]
    Mr Hartley considered the Appellant's submissions that the QAS HR Procedure – Displaced Tenured Employees had not been considered. Mr Hartley considered the purpose of the QAS HR Procedure to support employees affected by workplace change which is defined as including 'decisions that affect the services and programs an agency delivers, its workforce structures, or establishment'. The decision outlined consideration of the application of the QAS HR Procedure and Mr Hartley's following determination:

Having reviewed this definition, in context with the intent and purpose of the Directive and QAS HR Procedure, it would not be accurate to suggest that the COVID-19 vaccination requirements would reasonably be considered to constitute workplace change, nor do I think that the decision of Mr Clarke to grant you a time-limited exemption would reasonably be considered to constitute workplace change as defined in these instruments.

  1. [40]
    The decision also noted the matter of Graf and Ors v State of Queensland (Department of Education)[7] which determined that the introduction of COVID- 19 vaccination requirements did not constitute workplace change. Accordingly, Mr Hartley considered that the QAS HR Procedure as it related to workplace change was not required to be applied to the Appellant in the circumstances. It was open to Mr Hartley to determine that the decision not to apply this part of the QAS HR Procedure was fair and reasonable.
  1. [41]
    The review decision considered the application of section 3.10 of the QAS HR Procedure relating to the ill health of an employee. Mr Hartley considered this submission and determined that the application of this section to the Appellant's current circumstances would be premature until a separate decision-maker gave further consideration to her circumstances. The decision refers to the first consideration in section 3.10 which is to make a decision about whether it is reasonably practicable to transfer or redeployee and employer where special medical evidence indicates that the employee is medically incapable of performing the genuine occupational requirements of their substantive role into the foreseeable future and reasonable adjustment is not appropriate or reasonably practicable to allow the employee to continue employment in their substantive role. The decision about whether it is reasonably practicable to transfer or redeploy relies on the provision of specialist medical evidence. It was open to Mr Hartley to confirm Mr Clarke's decision which provided a time-limited exemption pending a final assessment following receipt of a specialist medical report.
  1. [42]
    This decision was open on the basis that the Appellant's displacement from her role was due to her temporary exemption than ill-health. Awaiting a decision by a separate decision-maker with respect to the Appellant's ongoing medical condition before determining how the Appellant's employment would be managed was fair and reasonable in the circumstances.
  1. [43]
    Mr Hartley acknowledged that the decision has the potential to limit the Appellant's human rights, however was satisfied that those limits on human rights were justified after outlining the grounds upon which the limitations were necessary in the circumstances.
  1. [44]
    The review decision provided a detailed consideration of the decision by Mr Clarke. The determinations by Mr Hartley were open to be made on the material before him. I am satisfied that  the review decision was fair and reasonable.
  1. [45]
    The relevant principles in considering whether a decision is 'unreasonable' were outlined by Ryan J in Gilmour v Waddell & Ors[8]:  

The focus of a review of reasonableness, or unreasonableness, of a decision is on whether the decision is so unreasonable that it lacks intelligent justification in all of the relevant circumstances.

The legal standard of unreasonableness is to be considered by reference to the subject matter, scope and purpose of the statute conferring the power.

A court considering an argument that a decision is unreasonable is not undertaking a merits review. If a decision may be reasonably justified, then it is not an unreasonable decision, even if a reviewing court might disagree with it.[9]

  1. [46]
    Applying the principles outlined above, I do not consider that the decision of Mr Hartley lacks justification in the circumstances. Based on the information before me, I am satisfied that the decision was fair and reasonable.

Order

  1. [47]
    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] This provision was repealed in March 2023 and replaced by s 104 of the  Public Sector Act 2022 (Qld).

[2] Public Sector Act 2022, s 194.

[3] Industrial Relations Act 2016 (Qld) s 562B(2) ('IR Act').

[4] Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245, 261.

[5] Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5 as to the former, equivalent provisions in s 201 of the Public Service Act 2008 (Qld).

[6] IR Act s 562B(3).

[7] [2022] QIRC 451.

[8] [2019] QSC 170.

[9] Ibid [207]-[209].

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Editorial Notes

  • Published Case Name:

    Crittenden-Godley v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Crittenden-Godley v State of Queensland (Queensland Health)

  • MNC:

    [2023] QIRC 275

  • Court:

    QIRC

  • Judge(s):

    Power IC

  • Date:

    25 Sep 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
Brandy v Human Rights & Equal Opportunity Commission (1995) 183 CLR 245
2 citations
Jump To
Cite 1 - (1995) 183 CLR 245
Cite 2 - (1995) 183 CLR 245
Gilmour v Waddell [2019] QSC 170
2 citations
Jump To
Cite 1 - [2019] QSC 170
Cite 2 - [2019] QSC 170
Graf v State of Queensland (Department of Education) [2022] QIRC 451
2 citations
Jump To
Cite 1 - [2022] QIRC 451
Cite 2 - [2022] QIRC 451

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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