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  4. Galletly v State of Queensland (Queensland Health) - [2023] QIRC 40

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Galletly v State of Queensland (Queensland Health)[2023] QIRC 40

Galletly v State of Queensland (Queensland Health)[2023] QIRC 40

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Galletly v State of Queensland (Queensland Health) [2023] QIRC 040

PARTIES:

Galletly, Lorrae (Penny)

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO.:

PSA/2022/993

PROCEEDING:

Public Service Appeal - Appeal against disciplinary finding decision and appeal against suspension without remuneration

DELIVERED ON:

10 February 2023

MEMBER:

Merrell DP

DATES OF WRITTEN SUBMISSIONS:

Appellant’s written submissions filed on 22 December 2022 and Respondent’s written submissions filed on 13 January 2023

HEARD AT:

On the papers

ORDERS:

The orders contained in paragraph [52] of these reasons for decision.

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL – Appellant employed as a Supervising Scientist in Queensland Health in a laboratory at the Mackay Base Hospital – cl 8 of the Health Employment Directive No. 12/21 – Employee COVID‑19 vaccination requirements required existing employees, who are employed to work in a hospital or other facility where clinical care or support is provided, to have received at least a first dose of a COVID-19 vaccine by 30 September 2021 and a second dose of a COVID‑19 vaccine by 31 October 2021 unless exempted – Appellant applied for an exemption – Appellant not granted an exemption – Appellant failed to be vaccinated – disciplinary process commenced against Appellant – disciplinary finding decision made that Appellant contravened, without reasonable excuse, a direction given to her to be vaccinated – further decision made that the Appellant be suspended without normal remuneration – Appellant appealed against disciplinary finding decision and suspension decision – whether disciplinary finding decision was fair and reasonable – whether suspension decision was fair and reasonable – disciplinary finding decision and the suspension decision were fair and reasonable – disciplinary finding decision and suspension decision confirmed

LEGISLATION:

Health Employment Directive No. 12/21 - Employee COVID‑19 vaccination requirements, cl 6, cl 7, cl 8 and cl 10

Hospital and Health Boards Act 2011, s 51A

Industrial Relations Act 2016, s 562C

Public Service Act 2008, s 137, s 187 and s 194

Work Health and Safety Act 2011, s 27

CASES:

Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203; (2020) 305 IR 311

Reasons for Decision

Introduction

  1. [1]
    Ms Lorrae (Penny) Galletly is employed by the State of Queensland as a Supervising Scientist, classification HP5, in Pathology Queensland, Queensland Public Health & Scientific Services, at its laboratory located in the Mackay Base Hospital. Queensland Public Health & Scientific Services is part of Queensland Health ('the Department').
  1. [2]
    Dr John Wakefield, the former Chief Executive of the Department, pursuant to s 51A(1) of the Hospital and Health Boards Act 2011, approved, with effect from 11 September 2021, Health Employment Directive No. 12/21 - Employee COVID‑19 vaccination requirements ('the Directive').
  1. [3]
    The combined effect of cls 7 and 8 of the Directive is that employees who are employed to work in a hospital or other facility, where clinical care or support is provided, had to provide to their line manager, or upload into the designated system, evidence that they had received the first dose of a COVID‑19 vaccine by 30 September 2021 and that they had received the second dose of a COVID‑19 vaccine by 31 October 2021.
  1. [4]
    By cl 10 of the Directive, an employee is not required to be so vaccinated if they are granted an exemption because the employee has a recognised medical contraindication, has a genuinely held religious belief or where '… another exceptional circumstance exists.'
  1. [5]
    Pursuant to the Directive, Ms Galletly was required to be vaccinated in accordance with the directions given to her as a health service employee employed in the Department. Ms Galletly applied for an exemption. A decision was made that she not be exempted from the operation of the Directive. Ms Galletly sought an internal review of that decision. That internal review was conducted by Dr David Rosengren, Chief Operating Officer of Queensland Health and by decision, conveyed in a letter dated 31 August 2022, he confirmed the decision not to grant Ms Galletly an exemption. In the same decision, Ms Galletly was directed to be vaccinated within seven days of her receipt of Dr Rosengren's letter.
  1. [6]
    Because Ms Galletly did not comply with the direction that she be vaccinated, a disciplinary process was commenced against her.
  1. [7]
    By letter dated 10 November 2022 from Mr Nick Steele, General Manager, Queensland Public Health & Scientific Services, Ms Galletly was advised that an allegation made against her, namely, that she had not complied with the requirements of the Directive and had not provided evidence of having received the prescribed number of doses of a COVID-19 vaccine, was substantiated.
  1. [8]
    Ms Galletly was further advised that Mr Steele had:
  • pursuant to s 187(1)(d) of the Public Service Act 2008 ('the PS Act'), determined that she had contravened, without reasonable excuse, a direction given to her as a health service employee by a responsible person, specifically, the direction given to her in cl 8 of the Directive ('the disciplinary finding decision'); and
  • pursuant to s 137(4) of the PS Act, determined that she be suspended without normal remuneration from 10 November 2022 until 10 January 2023 or until otherwise advised ('the suspension decision').
  1. [9]
    By appeal notice filed on 18 November 2022, Ms Galletly, pursuant to ch 7, pt 1 of the PS Act, appealed against the disciplinary finding decision. On 22 November 2022, I stayed the disciplinary finding decision.
  1. [10]
    Having regard to Ms Galletly's submissions, the relief that she seeks pursuant to s 562C(1)(c) of the Industrial Relations Act 2016, is that:
  • she be granted an exemption against the application of the Directive; and
  • she be '… permanently exempt' from the Directive and '… any future Directives or Policies relating to requirements pertaining to COVID‑19 vaccinations'; and
  • the suspension decision be set aside; or, in the alternative
  • the Department address '… the concerns and questions raised by the appellant'; and
  • while '… such response is being undertaken, that the appellant remains on suspension without pay.'
  1. [11]
    In this appeal, the only matters I can consider are the disciplinary finding decision and the suspension decision.
  1. [12]
    Ms Galletly, in her appeal notice, did not expressly state that she was appealing the suspension decision. However, the suspension decision was contained in Mr Steele's letter dated 10 November 2022. To be absolutely fair to Ms Galletly, I will also consider whether or not the suspension decision was fair and reasonable.
  1. [13]
    Furthermore, Ms Galletly did not appeal Dr Rosengren's decision (dealing with her application for an exemption) within 21 days of her receipt of that decision and in the present appeal, she has not applied for an extension of time to appeal against that decision. In any event, given that a disciplinary finding decision has now been made, there would be no practical point in hearing and determining an appeal against the decision to not grant her an exemption against the requirement to comply with the Directive.
  1. [14]
    In her appeal notice, Ms Galletly also seems to indicate that she is appealing the proposed disciplinary action to terminate her employment. Having regard to s 194(1)(b)(i) of the PS Act, it is only a decision under a disciplinary law to discipline the person that can be the subject of an appeal under ch 7, pt 1 of the PS Act. Accordingly, I have no jurisdiction to determine whether or not the proposed disciplinary action of terminating Ms Galletly's employment is fair and reasonable.
  1. [15]
    As a consequence, the issues for my determination are whether the disciplinary finding decision and the suspension decision were fair and reasonable.[1]
  1. [16]
    For the reasons that follow:
  • the disciplinary finding decision was fair and reasonable; and
  • the suspension decision was fair and reasonable.
  1. [17]
    I will confirm the disciplinary finding decision and the suspension decision.

Background

  1. [18]
    The relevant background to this matter is conveniently set out in the following paragraphs of the Department's submissions:
  1. In her role as a Supervising Scientist who works at Mackay Base Hospital, Ms Galletly is categorised within Group 2 under section 7.1 of HED 12/21, which covers employees employed to work in a hospital or other facility where clinical care or support is required. On that basis, Ms Galletly was subject to the mandatory vaccination requirements at clause 8.1 of the HED 12/21.
  1. On 30 September 2021, Ms Galletly applied for an exemption to the mandatory vaccine requirements, identifying a 'other exceptional circumstances', namely a purported lack of consultation and risk assessment. Ms Galletly's application for an exemption was refused on the basis she did not demonstrate any exemption circumstances. Ms Galletly's reasons for not being vaccinated can properly be described as 'vaccine hesitancy'.
  1. Ms Galletly's application for an exemption was refused by Professor Keith McNeil, A/Deputy Director-General, Chief Medical Officer, Prevention Division and Chief Clinical Information Officer on 16 December 2021. Professor McNeil's decision was confirmed by Dr David Rosengren, Chief Operating Officer via letter dated 31 August 2022.

Discipline process

  1. By letter dated 8 July 2022, Ms Galletly was suspended her from [sic] duty on normal remuneration.
  1. By letter dated 7 October 2022, Mr Damian Green, Deputy Director-General eHealth Queensland, Chief Information Officer wrote to Ms Galletly inviting her to respond to the following Allegation (First Show Cause Notice) (Attachment 1):

You have not complied with the requirements of HED 12/21 to receive the prescribed number of doses of a COVID-19 vaccine and to provide evidence of having received the prescribed number of doses of a COVID-19 vaccine.

  1. Mr Green also invited Ms Galletly to show cause why she should not be suspended without pay.
  1. On 14 October 2022, Ms Galletly responded to the First Show Cause Notice (Attachment 2). Ms Galletly stated she was not yet able to provide 'informed consent' in respect to COVID‑19 vaccination as her questions were 'unable to be answered' regarding the vaccines. Ms Galletly expressed concerns regarding the safety and efficacy of COVID‑19 vaccines, including long-term effects.
  1. Ms Galletly stated she had a medical condition which made her 'susceptible to blood clots', which resulted in 'extended medical treatments and hospitalisation.' Ms Galletly stated she was working with her doctor in respect to her health concerns and she had 'taken advice to err on the side of caution' with COVID-19 vaccination due to her medical history. She also claimed she held 'antibody immunity' from contracting COVID-19 twice.
  1. Further, Ms Galletly claimed as she had no patient contact and the general public are unable to access the hospital floor and wing of the hospital on which her workplace was situated, she would 'not be a risk' to immunocompromised or high-risk patients. Ms Galletly stated she was willing to wear the required PPE and complete daily RAT tests and regular PCR tests to demonstrate she was 'fit and ready to work' and would pose 'no risk' to transmitting COVID‑19 to her colleagues and patients.
  1. By letter dated 10 November 2022, Mr Steele advised Ms Galletly he found the Allegation against her substantiated (Attachment 3). Mr Steele found Ms Galletly had contravened, without reasonable excuse, a direction given to her as a public service employee by a responsible person under section 187(1)(d) of the Public Service Act 2008. Mr Steele provided Ms Galletly seven days to show cause why she should not impose the disciplinary action of termination of her employment. Mr Steele also advised Ms Galletly of his decision to place her on suspension without remuneration until 10 January 2023 or until otherwise advised.
  1. To date, no decision has been made in respect to whether to impose disciplinary action against Ms Galletly, if any.

Is the disciplinary finding decision fair and reasonable?

Ms Galletly's submissions

  1. [19]
    In contending that the disciplinary finding decision was not fair and reasonable, Ms Galletly's principal argument is that she had a reasonable excuse not to comply with the directions contained in the Directive that she be vaccinated against COVID-19. The reasonable excuse claimed by Ms Galletly is that she has not been provided with '… clarification, rationale, and evidence material to justify the requirement' for the Directive and its safety.
  1. [20]
    Ms Galletly then submits that: 'One would deem it is a 'reasonable excuse' to withhold from the directive until these valid points are addressed.'
  1. [21]
    In broad summary, the issues Ms Galletly raises are:
  • the provision of the risk assessments for the Directive;
  • the provision of the due diligence undertaken by the responsible officer as required by s 27(5)(a) and (b) of the Work Health and Safety Act 2011;
  • why it is an acceptable risk to have unvaccinated patients and visitors attend the Hospital?
  • how unvaccinated patients and visitors who attend the Hospital are less likely to spread or transmit COVID-19?
  • why her own antibody immunity to COVID-19 is not acceptable to the Department? and
  • from information she has received from a Right to Information request, if only 40% of Departmental employees have had the '… first required booster shot' and only 4% of Departmental employees have had a '… second booster shot’, then:

- why is she being disciplined when 60% of Departmental employees who are 'un-boosted' are not being disciplined? and

- why is the management of the Department '… failing to enforce the booster requirements section' of the Directive?

  1. [22]
    In relation to the last dot point above, Ms Galletly submitted those matters '… demonstrate inconsistent treatment from the respondent, whereby the appellant is disciplined for failure to follow a directive policy, while 60% of other employees are also failing to follow the same directive and are not being disciplined.'
  1. [23]
    Ms Galletly does not make any other arguments as to why the disciplinary finding decision or the suspension decision were not fair and reasonable.
  1. [24]
    Ms Galletly's written submissions and attachments run to 294 pages. The '… emerging data/studies/research' to which Ms Galletly refers in her submissions is annexed to her submissions.
  1. [25]
    One of the orders sought by Ms Galletly is that the Department '… adequately address the concerns and questions’ raised by her in her submissions.

The Department's submissions

  1. [26]
    In summary, the Department submits that the disciplinary finding decision was fair and reasonable because it is not in dispute that Ms Galletly has failed to provide evidence that she has complied with the Directive, namely, she has not provided evidence that she has received the required doses of a COVID-19 vaccine.
  1. [27]
    In making this submission, the Department points to a number of decisions of this Commission where it has been held that the requirement, by the Directive, to receive a COVID-19 vaccine, is fair and reasonable.
  1. [28]
    More specifically, in response to Ms Galletly's submissions, the Department submitted:
  1. Ms Galletly's reasons for not wishing to become vaccinated against COVID-19 have been repeatedly considered by the Commission in public service appeals, as well as industrial tribunals in other jurisdictions, including the Fair Work Commission, and have repeatedly been found not to amount to a valid reason for an exemption from mandatory vaccination or a reasonable excuse for failing to comply with a requirement to become vaccinated.
  1. In this regard:
  1. Ms Galletly did not provide any evidence of circumstances specific to her which meant she was unable to be safely administered the current vaccines. Although Ms Galletly stated she had a condition which made her 'susceptible to blood clots', she did not provide evidence she had a recognised medical contraindication to receiving a COVID-19 vaccine, or any evidence of a medical condition which meant she was unable to be safely administered the current vaccines.
  1. Although Ms Galletly expressed concerns regarding the safety and efficacy of COVID‑19 vaccination, including adverse reactions, it is not the Department's responsibility to allay her concerns or anxieties about receiving a COVID-19 vaccine. Further, Ms Galletly's reference to COVID-19 vaccination as being 'experimental' is incorrect. The COVID-19 vaccinations have been approved by the TGA and ATAGI. The TGA's approval of relevant vaccines is a matter of public record and is evidence of their safety and efficacy.
  1. Ms Galletly's concerns regarding her fertility is not considered a medical contraindication in accordance with the Australian Immunisation Handbook. It is also noted in the COVID-19 vaccination decision guide for women who are pregnant, breastfeeding or planning pregnancy the COVID-19 vaccines are safe during pregnancy.
  1. Ms Galletly's claim she has 'antibody immunity' to COVID-19 is irrelevant. It does not amount to sufficient medical evidence warranting an exemption. 'Natural immunity' is not a recognised medical contraindication to receiving a COVID‑19 vaccine.
  1. Regardless of the reasons, vaccine hesitancy is not an exceptional circumstance, nor is it a reasonable excuse for failing to comply with a lawful direction.
  1. There is no lawful basis upon which Ms Galletly can request access to a risk assessment undertaken by the Department in relation to vaccines, and proof she is a heightened risk of transmission. The Department was not required to provide Ms Galletly with assurances concerning the safety or efficacy of the COVID‑19 vaccines, and was not required to do its own risk assessment of the vaccines.
  1. Ms Galletly's claim there was a lack of consultation is incorrect. The Department complied with its consultation obligations under the WHS Act. The consultation included dedicated meetings with registered unions representing employees employed within the Department. Registered unions may negotiate with employers, not only on behalf of their members, but also on behalf of workers who are eligible for membership. Where registered unions agree with a vaccine mandate 'consultation reached the level where the directive was not a matter of contention'. The Department was not obliged to consult with employees on an individual basis.
  1. Ms Galletly stated she was willing to wear the required PPE and complete daily RAT tests and regular PCR tests instead of receiving COVID-19 vaccination. Ms Galletly is not entitled to determine how she will comply with the HED 12/21. Further, HED 12/21 does not provide for exceptions in respect of employees who return negative COVID-19 tests.
  1. None of the reasons given by Ms Galletly for her failure to comply with the direction to receive a COVID-19 vaccination amount to a reasonable excuse. Ms Galletly's submission comparing herself to patients and visitors is misconceived: patients do not have a choice about accessing health services from the Department. Ms Galletly has a choice about whether she wishes to continue to be employed by the Department.
  1. The decision to find the Allegation substantiated was procedurally fair. Ms Galletly was provided an opportunity to respond to the First Show Cause Notice before any decision on disciplinary findings was made, and she took advantage of that opportunity.
  1. For completeness, Mr Steele considered Ms Galletly's human rights. Ultimately, Mr Steele determined any impact to her human rights was reasonably justified because it was in the public interest to ensure employees comply with directions issued to them, including directions relating to public health and work health safety, and the Department's obligations to ensure the effective, efficient and appropriate use of public funds outweighed the limited potential impact on her human rights under the Human Rights Act 2019 at that time.[2]

The disciplinary finding decision was fair and reasonable

  1. [29]
    Ms Galletly submits she had a reasonable excuse to not comply with the directions given to her that she receive the two doses of a COVID-19 vaccine by the specified dates.
  1. [30]
    None of Ms Galletly's submissions persuade me that the disciplinary decision was other than fair and reasonable. There are a number of reasons for this.
  1. [31]
    First, the Directive was lawfully made by the Director-General of the Department in his exercise of power pursuant to s 51A(1) of the Hospital and Health Boards Act 2011.
  1. [32]
    Secondly, the Directive is objectively reasonable. As is evident from cl 6 of the Directive, the COVID-19 virus has been shown to disproportionately affect health care workers and health support staff and pose a significant risk to Queensland Health patients and the broader community. It was in recognition of those risks, as well as workplace health and safety obligations incumbent upon the Department and employees, that the Department required employees in high-risk groups to be vaccinated against COVID-19. The underlying rationale for the Directive is that the relevant Departmental staff must be vaccinated against COVID-19, so as to minimise the effects of the virus on the relevant employees, so that the Department can maintain the required number of health service employees to provide public health services in Queensland.
  1. [33]
    Indeed, the reasons why the Directive is reasonable were fully articulated in Dr Rosengren's letter to Ms Galletly dated 31 August 2022.
  1. [34]
    It is convenient to set out Dr Rosengren's reasons.
  1. [35]
    Dr Rosengren relevantly stated:

Concerns regarding a medical contraindication

As part of your application for an exemption from the requirement to be vaccinated against COVID‑19, you did not make mention of any potential medical contraindication, medical condition or discussions/ advice received from your medical practitioner. In your request for an exemption, you have indicated that you have a medical condition and concerns around your fertility however you have not provided any supporting documentation in relation to this previously nor in your request for internal review.

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

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

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

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

Concerns relating to consultation

As part of correspondence on your behalf by Kennedy Spanner Lawyers, I note a number of concerns in relation to consultation.

Part 5 of the Workplace [sic] Health and Safety Act 2011 (WHS Act) imposes consultation obligations on the Department and the Hospital and Health Services as "persons conducting a business or undertaking". Specifically, in this capacity, they must, as far as is reasonably practicable, consult with workers who are, or are likely to be, directly affected by matters relating to work health or safety, such as the content of the HED 12/21.

The Department complied with its obligations under the WHS Act to consult in relation to the introduction of the vaccine mandate. The consultation included dedicated meetings with registered unions representing employees employed within the Department and Hospital and Health Services.

Given the number, various locations, and various working arrangements of the employees to whom the HED 12/21 applies and pre-existing consultative forums for these employees, the WHS Act did not require one-on-one or personalised consultation with all workers affected by the HED 12/21 and/or a representative of their choosing.

I am satisfied the Department and the Hospital and Health Services have satisfied their consultation obligations under the WHS Act.

Concerns regarding a risk assessment

Further, in the correspondence from your representatives, Kennedy Spanner Lawyers, I Galletly v State of Queensland (Queensland Health) [2023] QIRC 40note the request for a risk assessment and the COVID-19 vaccination and how it relates to your role.

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

In addition, I note in your role description the first dot point under Your key responsibilities, states:

•  Adhere to defined service quality standards, health and safety policies and procedures relating to the work being undertaken to ensure high quality, safe services and workplaces.

I also note that your role description states that a condition of your employment is that you remain vaccinated against Hepatitis A & B, Measles, Mumps, Pertussis, Rubella and Varicella and may also require Japanese Encephalitis and Rabies vaccinations. It is, therefore, reasonable, given your work environment, that you are also vaccinated against COVID-19.

Concerns regarding the impact on your human rights

I also note that you and your representatives, Kennedy Spanner Lawyers have raised concerns regarding the human rights impact of the vaccination mandate.

The decision to require vaccination against COVID-19 was made considering the significant risk to the health and safety of healthcare workers, support staff, their families, and the patients under our care. The decision also took into consideration the potential impact of the decision on human rights. The decision does not itself compel a person to be vaccinated, but it does impose employment consequences upon people who are not vaccinated in circumstances unless certain extenuating circumstances apply,

Queensland Health's position is that the impacts of the decision upon human rights, to the extent that these are impacted, are reasonably justified. The purpose of the requirement to be vaccinated in the HED 12/21 include protecting staff and patients from infection with COVID-19 and the maintenance of a proper and efficient health system in a time of a global pandemic. It should be noted that there is no other reasonably practicable, effective and less restrictive way, to achieve this purpose.

Concerns regarding your ability to provide free and informed consent

I note that you and your representatives, Kennedy Spanner Lawyers detail a number of concerns regarding your ability to provide free and informed consent to the COVID-19 vaccination.

Free and informed consent to medical treatment is an essential tenet of healthcare. However, as the HED 12/21 requires vaccination as a condition of employment, this is materially and irreconcilably different from a situation involving coercive medical treatment or circumstances otherwise giving rise to an inability to provide free and informed consent to medical treatment.

It is Queensland Health's position that the introduction of vaccination as a condition of employment is reasonable and justifiable given that the purposes of the requirement include protecting staff and patients from infection with COVID-19 and the maintenance of a proper and efficient health service in a time of global pandemic.

Moreover, should you have any concerns regarding the nature and effect of vaccination, further information is available from Queensland Health or otherwise it is recommended that you obtain relevant medical information from your medical practitioner.

While I acknowledge your concerns, I do not accept that the HED 12/21 deprives you of free and informed consent to the COVID-19 vaccination or that these concerns constitute another exceptional circumstance.

Your objections to the COVID-19 Vaccine

I acknowledge that as part of your exemption application, supporting documentation and correspondence from Kennedy Spanner Lawyers, it has been indicated that you object to receiving any COVID-19 vaccine and the lack of conscientious objection was raised as an issue.

Queensland Health employees have particular obligations under legislation to minimise the health and safety risks to themselves, other employees and patients, as well as to follow the reasonable and lawful directions of their employer. It is Queensland Health's position that the introduction of vaccination as a condition of employment is reasonable and justifiable given that the purposes of the requirement include protecting staff and patients from infection with COVID-19 and the maintenance of a proper and efficient health service in a time of global pandemic.

For the reasons outlined above therefore, while you may object to receiving any COVID-19 vaccine, as a Queensland Health employee you are still required to be vaccinated. As I have mentioned above, the HED 12/21 itself does not compel employees to be vaccinated, however it does impose consequences upon people who are unvaccinated without good reason for doing so.

In considering the information you have provided, specifically your personal objection to receiving any COVID-19 vaccine, it has been determined that this is not sufficiently exceptional so as to outweigh the purpose of requiring you to be vaccinated.

Your concerns regarding the legal basis for requiring vaccination

I acknowledge that as part of your exemption application provided by Kennedy Spanner Lawyers, and your supporting documentation, a number of legal instruments have been identified which you believe to be relevant to your circumstances and the present decision.

In making the decision to require vaccination of Queensland Health employees, the Director‑General considered relevant legislative obligations incumbent on Queensland Health as an employer, as well as those obligations incumbent on staff. This decision took into consideration the significant levels of risk associated with the work performed by Queensland Health employees. As part of the decision-making process, due consideration was given to the availability of a safe and reliable vaccination program for Queensland Health employees. In evaluating the controls available it was determined that requiring vaccination would provide the best possible protection for our workforce, people accessing health services and the broader community and ensure the ongoing readiness of the health system.

  1. [36]
    In my view, all of Dr Rosengren's reasons are meritorious. Those reasons reflect a considered and proportionate response taken by a State government agency, in the face of the pandemic, whose function is to provide public health services in Queensland so as to ensure the maintenance of those public health services during the pandemic.
  1. [37]
    The consequence is that the directions in the Directive that Ms Galletly receive the first two doses of a COVID-19 vaccine by the specified dates were lawful and reasonable directions. Ms Galletly was not exempt from those lawful and reasonable directions. Ms Galletly refused to comply with those lawful and reasonable directions without a reasonable excuse.
  1. [38]
    The other submissions made by Ms Galletly do not persuade me that the disciplinary finding decision was other than fair and reasonable. There are three reasons for this.
  1. [39]
    First, Ms Galletly's '… outstanding questions, concerns and requests' having regard to the lawfulness and reasonableness of the Directive, have no meritorious basis. The Directive was lawfully made and is reasonable to protect Departmental employees from the effects of COVID-19.
  1. [40]
    Secondly, because of the lawfulness and reasonableness of the Directive, the fact the Department has not responded to Ms Galletly's '… outstanding questions, concerns and requests', does not give Ms Galletly a reasonable excuse for non-compliance.
  1. [41]
    Thirdly, viewed in the correct context then, the '… outstanding questions, concerns and requests' of Ms Galletly are matters raised by her in an attempt to develop a case that she has a reasonable excuse not to comply with the Directive. In my view, the '… outstanding questions, concerns and requests' betray Ms Galletly's own hesitancy to be vaccinated against COVID‑19. Ms Galletly's hesitancy is not a reasonable excuse for her refusal to comply with the Directive.
  1. [42]
    There is one further matter to which I will refer. This concerns the issue raised by Ms Galletly that is referred to in the last dot point in paragraph [21] of these reasons. The decisions of this Commission confirm that non-exempt employees, who have refused to comply with the Directive to have the first two (non-booster) doses of the COVID‑19 vaccine by the required dates, have had their suspensions and disciplinary findings confirmed. Those employees were or are in the same circumstances as Ms Galletly. Therefore, in a like for like comparison, there is no inequitable treatment of Ms Galletly compared to other employees in the same circumstances. Ms Galletly may have had an argument about inequitable treatment if she was being disciplined for failing to receive booster doses of an approved vaccine, but those are not the facts of the present case.
  1. [43]
    For these reasons, the disciplinary finding decision was fair and reasonable.

Is the suspension decision fair and reasonable?

  1. [44]
    Section 137(4) of the PS Act provides that a public service employee is entitled to normal remuneration during their suspension unless the person is suspended under s 137(1)(b) of the PS Act and the chief executive considers it is not appropriate for the employee to be entitled to normal remuneration during their suspension having regard to the nature of the discipline to which the chief executive believes that person is liable.
  1. [45]
    Ms Galletly was originally suspended on normal remuneration on the basis that the chief executive reasonably believed she was liable to discipline under a disciplinary law within the meaning of s 137(1)(b) of the PS Act.
  1. [46]
    In his decision, Mr Steele gave detailed reasons as to why he made the decision that Ms Galletly should be suspended without normal remuneration. Those reasons were:
  • the serious nature of her failure to comply with the Directive;
  • as a consequence of the seriousness of that failure, the formation of a reasonable belief that Ms Galletly would be liable to discipline under a disciplinary law; and
  • in all those circumstances, that it was not appropriate that public resources be used to continue paying Ms Galletly, particularly given the Department's statutory obligation to manage public resources efficiently, responsibly and in a fully accountable way.
  1. [47]
    Ms Galletly did not make any specific submissions as to why her suspension without normal remuneration was not fair and reasonable.
  1. [48]
    In my view, Ms Galletly's suspension without normal remuneration was fair and reasonable.
  1. [49]
    Ms Galletly's failure to comply with the Directive is a serious matter. Ms Galletly is liable to discipline under a disciplinary law. Further, in those circumstances, given her deliberate decision not to comply with the Directive, it is not appropriate that public resources continue to be used to pay her during a period of suspension.

Conclusion

  1. [50]
    The question in this case was whether the disciplinary finding decision and the suspension decision were fair and reasonable.
  1. [51]
    For the reasons given above, the disciplinary finding decision and the suspension decision were fair and reasonable. Both decisions will be confirmed.
  1. [52]
    I will revoke the stay of the disciplinary finding decision that I ordered on 22 November 2022.

Orders

  1. [53]
    I make the following orders:
  1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision dated 10 November 2022 that the Appellant contravened, without reasonable excuse, a direction given to her as a health service employee by a responsible person, is confirmed.
  1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision dated 10 November 2022, that the Appellant is suspended without normal remuneration from 10 November 2022 until 10 January 2023 or until otherwise advised, is confirmed.
  1. Pursuant to s 566(1)(b) of the Industrial Relations Act 2016, the stay of the decision appealed against, namely, the decision dated 10 November 2022 that the Appellant contravened, without reasonable excuse, a direction given to her as a health service employee by a responsible person, is revoked.

Footnotes

[1] Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203; (2020) 305 IR 311, [6]-[7] (Deputy President Merrell).

[2] Citations omitted.

Close

Editorial Notes

  • Published Case Name:

    Galletly v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Galletly v State of Queensland (Queensland Health)

  • MNC:

    [2023] QIRC 40

  • Court:

    QIRC

  • Judge(s):

    Merrell DP

  • Date:

    10 Feb 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
Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203
2 citations
Jump To
Cite 1 - [2020] QIRC 203
Cite 2 - [2020] QIRC 203
Morison v State of Queensland (Department of Child Safety, Youth and Women) (2020) 305 IR 311
2 citations
Jump To
Cite 1 - (2020) 305 IR 311
Cite 2 - (2020) 305 IR 311

Cases Citing

Case NameFull CitationFrequency
Davenport v State of Queensland (Department of Education) [2024] QIRC 2062 citations
Goodchild v State of Queensland (Queensland Health) [2023] QIRC 532 citations
Mackenzie v State of Queensland (Queensland Health) [2023] QIRC 1212 citations
Ogbonna v State of Queensland (Queensland Health) [2024] QIRC 11 citation
1

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