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  4. Goodchild v State of Queensland (Queensland Health) - [2023] QIRC 53

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Goodchild v State of Queensland (Queensland Health)[2023] QIRC 53

Goodchild v State of Queensland (Queensland Health)[2023] QIRC 53

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Goodchild v State of Queensland (Queensland Health) [2023] QIRC 053

PARTIES:

Goodchild, Donna

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

PSA/2022/346

PROCEEDING:

Public Service Appeal – Fair Treatment

DELIVERED ON:

17 February 2023

MEMBER:

Knight IC

HEARD AT:

On the papers

Final submissions received 19 May 2022

ORDERS:

The decision appealed against is confirmed.

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – appellant employed by the State of Queensland (Queensland Health) as a Senior Mental Health Clinician within Children's Health Queensland Hospital and Health Service – where by cl 8.1 of the Health Employment Directive 12/21 – Employee COVID-19 vaccination requirements the appellant was required to receive a first dose of a COVID-19 vaccine by 30 September 2021 and to provide evidence of such vaccination – where appellant applied for exemption – where an application for exemption refused – where appellant requested internal review – where internal review completed and refusal of exemption application confirmed – where appellant appealed against that decision – whether the decision was fair and reasonable

LEGISLATION AND INSTRUMENTS:

Health Employment Directive No. 12/21 – Employee COVID-19 vaccination requirements cls 7, 8, 10

Hospital and Health Boards Act 2011 (Qld) ss 51A, 51E

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

Public Service Act 2008 (Qld) s 197

CASES:

Colebourne v State of Queensland (Queensland Police Service) (No 2) [2022] QIRC 016

Domrow v State of Queensland (Queensland Treasury) [2022] QIRC 331

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

Gilmour v Waddell & Ors [2019] QSC 170

Goodall v State of Queensland & Anor [2018] QSC 319

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

Grundkvist v State of Queensland (Queensland Health) [2022] QIRC 135

Jones v State of Queensland (Queensland Ambulance Service) [2023] QIRC 22

Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320

McGarry v State of Queensland (Queensland Health) [2023] QIRC 32

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

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

Reasons for Decision

  1. [1]
    Ms Donna Goodchild is employed by the State of Queensland as a permanent Senior Mental Health Clinician through Queensland Health ('the Department'). Ms Goodchild has been employed by the Department for 22 years.[1]
  2. [2]
    On 11 September 2021, the Department issued the Health Employment Directive No. 12/21 – Employee COVID-19 vaccination requirements ('the Directive') concerning the mandatory COVID-19 vaccination requirements for certain staff of the Department. The Directive is made pursuant to s 51A of the Hospital and Health Boards Act 2011 (Qld) ('the HHB Act').
  3. [3]
    Ms Goodchild has lodged an appeal pursuant to ch 7 pt 1 of the Public Service Act 2008 (Qld) ('the PSA Act') in relation to a decision by Ms Naomi Hebson, Executive Director People and Governance, to confirm a decision not to approve Ms Goodchild's application for an exemption from compliance with the Directive.
  4. [4]
    Such an appeal proceeds under ch 11 pt 6 div 4 of the Industrial Relations Act 2016 (Qld).[2] It is not by way of rehearing, but rather involves a review of the decision arrived at and the decision-making process therein.[3] Its stated purpose is to decide whether the decision appealed against was fair and reasonable in all the circumstances.[4]
  5. [5]
    The sole issue for my consideration in this appeal is whether the internal review decision, being Ms Hebson's decision to confirm an earlier decision refusing Ms Goodchild's request for an exemption, was fair and reasonable.
  6. [6]
    Submissions or materials in relation to the manner in which Ms Goodchild has accessed her paid leave during the COVID period, or the reinstatement of leave, are not relevant in this appeal. Similarly, this appeal process is not the appropriate forum for Ms Goodchild to agitate a proposal to work from home or undertake alternative duties.
  7. [7]
    Other issues raised by Ms Goodchild, such as the safety and efficacy of the COVID-19 vaccines within the broader community, the legality of the mandate, or the views of various organisations or groups in relation to the vaccines, are also beyond the scope of this appeal.

Background

  1. [8]
    Clause 7 of the Directive sets out the employees to which the Directive applies. Relevantly, it applies to all health service employees who are employed to work within a hospital or other facility where clinical care or support is provided.
  2. [9]
    Clause 8 of the Directive provides that, unless an employee to whom the Directive applies is exempt under cl 10, the employee must receive at least one dose of a COVID-19 vaccine by 30 September 2021, receive a second dose by 31 October 2021 and either provide to their line manager or upload into the designated system, evidence of having done so no later than seven days after receiving each vaccine.
  3. [10]
    The Directive requires employees identified within certain groups to receive a COVID-19 vaccination on specified dates.[5] As a Senior Mental Health Clinician at Keperra Community Health Centre, Ms Goodchild falls within Group 2 under cl 7.1 of the Directive which requires employees employed to work in a hospital or other facility where clinical care or support is provided, to be vaccinated.[6]
  4. [11]
    Clause 10 of the Directive provides an employee does not have to comply with the Directive where they are granted an exemption. The Directive provides that an application for an exemption will be considered by the Department:
  1. (a)
    Where an employee has a recognised medical contraindication;
  2. (b)
    Where an employee has a genuinely held religious belief; or
  3. (c)
    Where another exceptional circumstance exists.[7]
  1. [12]
    On 30 September 2021, Ms Goodchild requested an exemption to the mandatory vaccine requirements, identifying 'vaccine hesitancy and conscientious objection' as the basis for exceptional circumstances within the application.
  2. [13]
    The exemption application form stipulates the following two conditions for an exceptional circumstance exemption:
  1. (a)
    Vaccine hesitancy and conscientious objection, by themselves, are not considered exceptional circumstances.
  2. (b)
    Some other extenuating circumstances must exist.[8]
  1. [14]
    Ms Goodchild outlined her reasons for an exemption as follows:

Essentially, there are various major influencing factors to my COVID 19 vaccine hesitancy and conscientious objections:

  1. The vast amount of reading, watching, and listening to research available on both sides of the spectrum from pro to anti-vax of COVID-19, has resulted to-date, in minimal proof and limited substantiated evidence on both sides, due to the recent development of the C19 vax. Therefore, as there is no conclusive evidence for or against the use of the COVID vax at present, I will wait for further peer review studies of C19 Vaccine.
  2. My personal firsthand experience and exposures to colleagues, friends and family members having received the C19 vax and developing adverse reactions, concerns me greatly to the point of fear. Not one person I know who has had the C19 vax has made a positive comment about their injection experience. In almost all cases, they have reported negative side effects. These have included one young staff member landing in the emergency department having what is described to be myocarditis. Another healthy young male having a heart attack. My daughter’s 12-year-old friend becoming paralysed within minutes from the injection point and spreading through to the left side of her body, resulting in presenting to the emergency department. Several of my mother in-laws friends, also being hospitalised shortly after receiving the vax. One of my friend’s pre-existing mild condition flared up, with additional complications, tight chest, difficulty breathing, also landing in hospital today after receiving the C19 vax. Another, who has not suffered Myositis for about 10 yrs, experienced this, returning with a vengeance soon after the vax and is no longer engaging in their normal activities at present. The list is endless. How can I possibly not be hesitant?
  3. Two of my colleagues having serious medical history e.g. myocarditis x 2, the other as a direct reaction from the first C19 injection. Both requesting exemptions with supporting documents from ED and their GP, yet they were advised to go get C19 injections, nonetheless.
  4. The attached NHS patient consent form for receiving the C19 clearly state that "under 30’s may be more likely to die from taking a COVID-19 vaccine then from dying with COVID-19". And item 10. "The patient does not feel coerced and is free to refuse a Covid-19 vaccine". This is not the case for QH staff, who the Director General Dr. John Wakefield has advised non-compliant to the vaccine will face disciplinary action. Is that not a threat, bullying and coercion tactic?
  5. I attended several QH VID cast. [sic] within seconds of typing up a while host of questions, which were never answered, it was turned off. There was no open discussion.[9]
  1. [15]
    In supporting documentation attached to her exemption application, Ms Goodchild included the following attachments:
  1. (a)
    Human Rights Advocates – COVID-19 Vaccine Declination Form; and
  2. (b)
    Fair Work Commission Appeal of Decisions Jennifer Kimber v Sapphire Coast Community Aged Care Ltd.[10]
  1. [16]
    In correspondence dated 1 December 2021, Mr Dominic Tait, Executive Director Clinical Services, advised Ms Goodchild her request for an exemption was refused. Within his reasons for the decision, Mr Tait noted:

Consideration of your application was made with the intention of the Directive in mind, specifically the requirement to ensure the readiness of the health system in responding to the COVID-19 pandemic, to protect the lives of employees, patients and the community they serve.

The requirement to be vaccinated contemplates the high degree of risk to public health associated with work performed in healthcare settings and will ensure Queensland Health can provide a safe environment for both employees and patients. The decision also took into consideration the impact on your human rights.[11]

  1. [17]
    Consequently, on 30 January 2022, Ms Goodchild sought an internal review of the decision to refuse her exemption application. Ms Goodchild's submissions in respect of the internal review fall into five broad categories: 
  1. (a)
    COVID-19 Vaccine efficacy and safety;
  2. (b)
    Human rights incursions;
  3. (c)
    Confidentiality and the ability to discuss concerns about the vaccine with other employees;
  4. (d)
    Personal ethics; and
  5. (e)
    Concerns about government integrity.[12]
  1. [18]
    In a decision letter dated 2 February 2022, Ms Naomi Hebson informed Ms Goodchild that an internal review of the exemption application had been conducted. The decision to refuse Ms Goodchild's exemption application was confirmed ('the internal review decision').
  2. [19]
    This is the decision that is now appealed by Ms Goodchild.

Grounds of Appeal

  1. [20]
    Within her notice of Appeal, Ms Goodchild confirmed her primary appeal grounds relate to the efficacy of the vaccine and the impact on her human rights. She also briefly outlines her grounds of appeal within the following points:
  • Against a decision made, preventing me from working due to my vaccination status.
  • For disallowing me to continue working from home, which I was performing satisfactorily.
  • QH [Queensland Health] have not provided any reasonable grounds for this unjust and harsh decision preventing me from working.
  • QH have not discussed nor provided me with any alternative work options i.e. different roles, duties or place of work.
  • QH are forcing me to utilise all my paid leave and will be placing me on leave without pay hereafter.[13]

Parties' Submissions

  1. [21]
    Both parties filed written submissions.

Safety and Efficacy of the Vaccines

  1. [22]
    Within her submissions, Ms Goodchild describes her objection to receiving the COVID-19 vaccine in the following way:

My objection to receiving the COVID-19 vaccine is both due to concerns as to the absence of sufficient research, and the possibility of adverse health reactions to myself personally, were I to receive the vaccine. I have my own medical conditions (which I have previously provided information about to Queensland Health). I also hold concerns that recent research indicates the possibility of adverse results from experimental mRNA COVID-19 vaccines (in particular, cancer of the liver) would mean that receiving the vaccine would have severe adverse health impacts on me. In addition, I do not believe that I will experience as great a risk were I to contract COVID-19, given my age group and my general health. I am also concerned about the vaccine more generally because the current mRNA inoculation is an experimental drug that has been temporarily approved for trial, with no significant longitudinal data. From my own research, I have found that there is both current and emerging evidence of severe side effects and fatalities. My research also indicates that the original vaccines are not as effective against the later variants. I am aware that there is a further spike protein drug which is being developed by Vaxine in Adelaide, based and trialled in Australia, called Covax-19. I have considered receiving this vaccine and have registered for trial, but at this stage I am concerned that it is still an experimental drug in phase 3. In circumstances where there are currently no COVID-19 vaccines that have fully completed trials, and no evidence of long-term efficacy, I do not wish to receive any COVID-19 vaccines.[14]

  1. [23]
    In support of her concerns, Ms Goodchild filed two attachments with her submissions consisting of approximately 380 pages,[15] which included:
  • Emails from the Director-General of Health to the Department's employees concerning the vaccination mandate, with links to various information sites.
  • Letters from Ms Goodchild to the Department commenting on the safety and efficacy of COVID-19, with references to articles from numerous internet sites, medical journals, scientific reports and commentary about vaccines attributed to politicians, doctors, academics and employees of pharmaceutical companies.
  • Additional correspondence from Ms Goodchild to the Department raising concerns about confidentiality, moral ethics and integrity.
  • Emails from Metro North Health to Ms Goodchild and other Department staff detailing work arrangements for the delivery of critical services during a surge in COVID numbers.
  • A group letter addressed to a series of decision-makers at a Commonwealth level, including the Minister for Health and Aged Care, the Secretary of the Department of Health and the Chief Medical Officer, Professor Paul Kelly, dated 8 March 2022. Several academics, consultants, and individuals with qualifications in law, pharmacy, and medical research appear to have contributed to the document, under the banner of the 'Covid Medical Network'.
  • Commentary from Ms Goodchild about Queensland Government updates on COVID-19 and working arrangements for employees in health settings.
  • A text message from Sullivan Nicolaides confirming Ms Goodchild tested positive for COVID in May 2022.
  • A report about naturally acquired immunity.
  • A Work Health and Safety Risk Assessment prepared by Mr Gideon J Jacobs, dated 4 December 2021.
  • A copy of the presentation, Analysis of Covid-19 vaccine effectiveness claims in Australia delivered by People for Safe Vaccines.
  • Metro North COVID-19 statistics – December 2021, January 2022, April 2022.
  • A summary of various news articles and COVID statistics referencing the Australian Bureau of Statistics, Expose-News.com, The BMJ, and the Therapeutic Goods Administration ('TGA').
  1. [24]
    Ms Goodchild further contends the Department failed to provide her with evidence or research supporting its position that the vaccination is safe and effective against transmission.
  2. [25]
    Although the Department acknowledges Ms Goodchild is entitled to her own views in relation to the safety and efficacy of the COVID-19 vaccinations, it submits it is not obliged to accept these views, particularly in circumstances where the weight of medical and scientific evidence is against her.[16]
  3. [26]
    The Department submits COVID-19 vaccines are not experimental and have undergone all of the usual assessments, including peer review and publication of phase one, two and three clinical trials, with a further review from multiple licencing bodies, including the TGA.[17]
  4. [27]
    The TGA approval of relevant vaccines is, the Department maintains, evidence of the vaccine's safety and efficacy.
  5. [28]
    Although the Department submits employees can access information with respect to the safety and efficacy of the vaccination, it argues there is no lawful basis upon which Ms Goodchild can request access to risk assessments in relation to vaccines, and proof that she is at a heightened risk of transmission.[18]
  6. [29]
    The Department submits that high levels of vaccination coverage reduce the spread of infection against symptomatic infection and the infectious period. In particular, the Department notes that vaccination assists in protecting the unvaccinated as well as the vaccinated.[19]
  7. [30]
    The Department maintains Ms Goodchild is entitled to hold her views of the safety and efficacy of the vaccination; however, it is not incumbent on the Department to accept her views.[20]

Consent & Human Rights

  1. [31]
    Ms Goodchild submits the Department 'forced' her to take part in 'an experimental inoculation' and as a result, she cannot provide proper consent,[21] and further argues that "the use of the word mandatory in a public health order or direction is contradictory and incongruous, because free will is absent".[22]
  2. [32]
    The Department maintains that Ms Goodchild is not being deprived of her ability to provide consent, rather it is a condition of her employment within her role to be vaccinated. It is submitted that this is vastly different to a situation that involves coercive medical treatment or depriving someone's free and informed consent.[23]
  3. [33]
    The Department reaffirms that Ms Goodchild has not been deprived of her free and informed consent, that she has no obligation to work for the Department, and that it is her choice to receive or forgo the COVID-19 vaccination.[24]

Vaccine Hesitancy

  1. [34]
    Within Ms Goodchild's exemption application, appeal notice and submissions, she has consistently described her own behaviour as 'vaccine hesitancy'. Ms Goodchild maintains that being vaccine-hesitant in combination with her personal experiences could be characterised as extenuating circumstances. Further, these outcomes have left her feeling suppressed.[25]
  2. [35]
    In response, the Department submits:

Exemption applications are considered on an individual basis and weighed against the Department's health and safety obligations and will only be approved in exceptional circumstances having regard to the public health risk posed by COVID-19. Exemptions must relate to grounds in respect to the employee as an individual and 'other exceptional circumstances' that affect or concern the individual employee, as opposed to general circumstances which may concern a large group of people. Ms Goodchild did not provide any evidence that her individual circumstances were exceptional such that they warranted priority over the health and safety of his colleagues, patients, and the member of the public who attend CHQHHS.[26]

Other Matters

  1. [36]
    Within her submissions and attachments, Ms Goodchild included commentary and references to COVD-19 related news events, statistics, and occurrences at both a domestic and international level.  Other than an argument about working from home or undertaking alternative duties, these matters, which   were not raised before the decision-makers involved in the original decision to refuse the application for exemption or the internal review decision, included:
  • Mandate extensions;
  • Aged care COVID-19 requirements;
  • New Zealand judgements regarding mandates;
  • Court responses from around the world; and
  • American COVID-19 data.[27]
  1. [37]
    In response to her references to working from home, the Department observes Ms Goodchild's workplace is the North West Child and Youth Mental Health Service, submitting that hospitals and health service facilities at which clinical services are provided were covered by the Directive, for the safety of Ms Goodchild, her colleagues, patients and the broader community.
  2. [38]
    The Department maintains that while Ms Goodchild was permitted to perform her duties from home, this was agreed upon temporarily and does not warrant her exemption from the Directive.[28]

Was the Internal Review Decision Fair and Reasonable?

  1. [39]
    In this appeal, I am required to consider whether it was fair and reasonable for Ms Hebson to confirm the decision to refuse Ms Goodchild's vaccination exemption application.
  2. [40]
    The principles relevant to an assessment of 'reasonableness' have been considered by the High Court on several occasions, most notably in the decision in Minister for Immigration and Citizenship v Li.[29] Those principles were usefully summarised by Her Honour, Ryan J in Gilmour v Waddell & Ors:[30]

[207]  The focus of a review of the 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.

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

[209] 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.

Vaccine Hesitancy

  1. [41]
    Although I accept Ms Goodchild holds strong personal concerns in relation to the safety and efficacy of the COVID-19 vaccine, this Commission has long recognised that vaccine hesitancy, on its own, does not amount to 'exceptional circumstances'.[31] Instead, some other extenuating circumstance must exist for an employee to be granted an exemption.
  2. [42]
    In this context, I have had regard to His Honour, DP Merrell's views in Grundkvist v State of Queensland (Queensland Health),[32] where he observed:

Ms Grundkvist's submissions must, in my view, be considered by having regard to whether the issues to which she refers give rise to an exceptional circumstance of this kind. The basis for such an exemption must concern circumstances that affect or concern her as an individual employee as opposed to a circumstance or circumstances which affect or concern all or a large group of the employees of the Department.[33]

  1. [43]
    In forming this view, his Honour relied on an earlier decision of Colebourne v State of Queensland (Queensland Police Service) (No 2),[34] where he stated in respect of a similar exemption regime under a COVID-19 vaccination direction given in the Queensland Police Service:

[53]   Therefore, it was clear from Ms Colebourne's application for exemption that she was applying for an exemption, not on medical or genuine religious grounds (as referred to in paragraphs 8 or 9a) of Direction No 12) but '… due to other exceptional circumstances' as contemplated in paragraph 9b) of that document.

[54]   It seems to me that construed in context, for an exemption of the kind referred to in paragraphs 8 or 9 of Direction No 12 to be granted, the grounds for the exemption must relate to the employee as an individual. This can be seen in respect of the exemptions that may be granted on medical or religious grounds. Similarly, in my view, the '… other exceptional circumstances' basis for an exemption concern circumstances that affect or concern the individual employee as opposed to general circumstances which may concern all or a large group of the members of the Service.[35]

  1. [44]
    Therefore, when reviewing the issues Ms Goodchild submits give rise to exceptional circumstances, the correct approach is to have regard to events or circumstances that impact or concern her as an individual rather than those that purportedly impact the community at large or a broad group of employees within a particular workforce or department.[36]
  2. [45]
    Within the materials filed in support of Ms Goodchild's appeal, other than one exception set out at [46], I was unable to locate any evidence of a circumstance or event that could be characterised as exceptional, in so far as it directly concerned Ms Goodchild.
  3. [46]
    However, Ms Goodchild did include the following statement in her Appeal materials:

The decision made is harsh because I have reasonable grounds to fear that the inoculations may compromise my Hepatitis B condition, supported by a medical journal article that I have provided to Mr Tait.[37]

  1. [47]
    As best I can tell, within the materials before me, the comment made by Ms Goodchild in respect of her medical condition did not feature in her original application for exemption. Moreover, she does not appear to have provided the Department with evidence of her condition, such that it could have been characterised as exceptional or exposing her to any higher risk of harm from the vaccine than her colleagues.
  2. [48]
    Moreover, although Ms Goodchild refers to her medical condition in her reply submissions, I was unable to locate any medical evidence within any of the materials before me, setting out how the vaccine might compromise Ms Goodchild's medical condition such that it would directly weigh against other considerations the Department had regard to when considering the exemption application.
  3. [49]
    For these reasons, I am not persuaded the circumstances relied on by Ms Goodchild, in so far as they relate to the approval, efficacy or safety of the vaccine, could be characterised as exceptional. Nor could they lead to a conclusion that Ms Hebson's internal review decision was unreasonable.

Other Grounds

  1. [50]
    The remaining grounds Ms Goodchild has chosen to rely on in support of her appeal, concern:
  1. (a)
    an inability to provide free consent and subsequent incursion on her human rights; and
  2. (b)
    the capacity to work from home or undertake alternative duties, in lieu of receiving the vaccine.

Consent

  1. [51]
    Ms Goodchild raises questions as to whether consent has been freely obtained in circumstances where she holds the view that she is being forced to take part in 'an experimental inoculation' and coerced into receiving a COVID-19 vaccination. 
  2. [52]
    I am not persuaded such claims could render Ms Hebson's internal review decision unfair or unreasonable for several reasons.
  3. [53]
    Firstly, it is clear from the materials that COVID-19 vaccines are not experimental and have undergone various assessments including peer review and publication of phase one, two and three clinical trials and review by licencing bodies, including the TGA and the Australian Technical Advisory Group on Immunisation.
  4. [54]
    Secondly, it is clear Ms Goodchild had a choice as to whether she complied with the Directive.
  5. [55]
    In Graf & Ors v State of Queensland (Department of Education),[38] a case where several employees within the Department of Education were subject to a decision of suspension without remuneration after failing to comply with a Direction to receive the COVID-19 vaccination, his Honour, DP Merrell, relevantly stated:

The direction to be vaccinated is no different to any other lawful direction given by an employer to an employee about a matter concerning the employee's health and safety or the health and safety of other employees or persons associated with the employers' undertaking. Some employees may, for a range a reasons, not comply with such a direction. But that is a matter for each employee.

…

The will of each Appellant was not being overborne. Each Appellant had a real choice as to whether they complied with the Direction.[39] 

  1. [56]
    Although the requirement to be vaccinated is a condition of Ms Goodchild's employment, she is not obliged to work for the Department.
  2. [57]
    It is open to Ms Goodchild to refuse to receive the vaccine, which is entirely different to a situation where she is forced to receive medical treatment.
  3. [58]
    For these reasons, I am not persuaded Ms Goodchild's submissions in relation to this ground of appeal, results in a conclusion Ms Hebson's internal review decision was unfair or unreasonable.

Human rights incursions

  1. [59]
    In addition to attaching a 'Human Rights Advocates – COVID-19 Vaccine Declination Form' as part of her exemption application, Ms Goodchild argues the Department is 'going against Human Rights guidelines', particularly in so far as it concerns a failure by the Department to allow her to undertake her duties from home.[40] 
  2. [60]
    The Department submits Ms Goodchild was permitted to perform her duties on a temporary basis in circumstances where she was not able to enter her usual workplace while she remained unvaccinated. It maintains the arrangement was never intended to become a long-term arrangement, nor is such an arrangement or solution to Ms Goodchild's ongoing refusal to comply with the Directive.[41]
  3. [61]
    In her role as a Senior Mental Health Clinician at the North West Child and Youth Mental Health Service, it is not in contention Ms Goodchild falls within Group 2 of the Directive and was therefore subject to the mandatory requirements set out in cl 8.1 of the Directive.
  4. [62]
    Neither is it an issue that Ms Goodchild, in her role as a clinician, would ordinarily attend her place of work, whereupon she would inevitably interact with both patients and work colleagues.[42]
  5. [63]
    Although I accept there may well be scope for Ms Goodchild to work from home from time to time and that she was permitted to work from home, albeit on a temporary basis, during a period where she was not vaccinated, it is clear, given the nature of her role, that Ms Goodchild would ordinarily be required to attend the workplace, where she would inevitably come into contact with both patients and colleagues. 
  6. [64]
    In those circumstances, I am not persuaded the capacity for Ms Goodchild to undertake some of her duties from home gives rise to a circumstance that could be characterised as exceptional. Nor does a refusal on the part of the Department to allow such an arrangement to continue result in a conclusion the Department's decision has resulted in a significant incursion of Ms Goodchild's human rights.
  7. [65]
    I am also satisfied Ms Goodchild's human rights were properly considered during the internal review.
  8. [66]
    In her internal review decision letter, Ms Hebson noted:

I am satisfied that Mr Tait's decision to refuse your exemption is compatible with human rights. To the extent Mr Tait's decision impacts upon human rights, Queensland Health's position is justifiable. The decision does not itself compel a person to be vaccinated, but it does impose consequences upon people who are not vaccinated where there is no compelling reason.

Directive 12/21 and Public health directions make vaccination compulsory for certain workers and others in specific circumstances to be vaccinated to protect the community during the pandemic. I acknowledge that my decision to uphold Mr Tait's decision engages or limits a number of your human rights as mentioned above. I am satisfied that those limits on human rights are justified by the need to ensure the readiness of the health system in responding to the COVID-19 pandemic, and to protect the lives of employees, patients and the community they serve.[43]

  1. [67]
    It is clear from the passage above that the decision-makers in refusing the exemption, the Department acknowledged Ms Goodchild's human rights may have been engaged but determined that any limitation was justified to protect the lives of employees, patients, and the community.[44]
  2. [68]
    For these reasons, I am not persuaded Ms Goodchild's submissions in relation to this ground of appeal lead to a conclusion that Ms Hebson's decision was unfair or unreasonable.

Conclusion

  1. [69]
    For the reasons given above, the Internal Review Decision confirming the refusal of Ms Goodchild’s request for exemption from receiving the COVID-19 vaccine, was fair and reasonable.
  2. [70]
    I confirm the Internal Review Decision.

Order

The decision appealed against is confirmed.

Footnotes

[1] The Department's submissions filed 14 April 2022, [4].

[2] Public Service Act 2008 (Qld) s 197.

[3] Industrial Relations Act 2016 (Qld) s 562B(2); Goodall v State of Queensland & Anor [2018] QSC 319, 5.

[4] Industrial Relations Act 2016 (Qld) s 562B(3).

[5] Health Employment Directive No 12/21 – Employee COVID-19 vaccination requirements cls 7, 8.

[6] Ibid cls 7, 8.

[7] Ibid cl 10.2.

[8] The Department's submission filed 14 April 2022, Attachment 1, 5.

[9] Ibid, 6.

[10] Appeal Notice filed 2 March 2022.

[11] The Department's submission filed 14 April 2022, Attachment 2,

[12] Appeal Notice filed 2 March 2022.

[13] Ibid.

[14] Ms Goodchild’s submissions filed 25 March 2022.

[15] Ibid; Ms Goodchild's reply submissions filed 19 May 2022.

[16] The Department's submissions filed 14 April 2022, [19]; citing Slykerman v State of Queensland (Queensland Health) [2022] QIRC 039.

[17] The Department's submissions filed 14 April 2022, [23].

[18] Ibid.

[19] The Department’s submissions filed 14 April 2022, [28].

[20] Ibid, [22].

[21] Ms Goodchild's submissions filed 25 March 2022.

[22] Ibid.

[23] The Department's submissions filed 14 April 2022, [30].

[24] Ibid, [24]; citing Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320.

[25] Ms Goodchild's reply submissions filed 19 May 2022, [7].

[26] The Department's submissions filed 14 April 2022, [21]; citing Colebourne v State of Queensland (Queensland Police Service) (No 2) [2022] QIRC 016. 

[27] Ms Goodchild’s submissions filed 25 March 2022.

[28] The Department’s submissions filed 14 April 2022, [31].

[29] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.

[30] Gilmour v Waddell & Ors [2019] QSC 170.

[31] Galletly v State of Queensland (Queensland Health) [2023] QIRC 40; Jones v State of Queensland (Queensland Ambulance Service) [2023] QIRC 22; McGarry v State of Queensland (Queensland Health) [2023] QIRC 32; Domrow v State of Queensland (Queensland Treasury) [2022] QIRC 331.

[32] [2022] QIRC 135.

[33] Grundkvist v State of Queensland (Queensland Health) [2022] QIRC 135, [23].

[34] [2022] QIRC 016, [39] – [42].

[35] Colebourne v State of Queensland (Queensland Police Service) (No 2) [2022] QIRC 016, [53] – [54].

[36] Grundkvist v State of Queensland (Queensland Health) [2022] QIRC 135; Colebourne v State of Queensland (Queensland Police Service) (No 2) [2022] QIRC 016.

[37] Appeal Notice filed 2 March 2022.

[38] [2022] QIRC 451.

[39] Ibid [39].

[40] Ms Goodchild's submissions filed 25 March 2022, Attachment 5.

[41] The Department's submissions filed 14 April 2022, [31].

[42] Ibid, [29] – [30].

[43] Ibid, Attachment 4.

[44] Ibid, Attachment 4.

Close

Editorial Notes

  • Published Case Name:

    Goodchild v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Goodchild v State of Queensland (Queensland Health)

  • MNC:

    [2023] QIRC 53

  • Court:

    QIRC

  • Judge(s):

    Knight IC

  • Date:

    17 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
Colebourne v State of Queensland (Queensland Police Service) (No. 2) [2022] QIRC 16
5 citations
Jump To
Cite 1 - [2022] QIRC 16
Cite 2 - [2022] QIRC 16
Cite 3 - [2022] QIRC 16
Cite 4 - [2022] QIRC 16
Cite 5 - [2022] QIRC 16
Domrow v State of Queensland (Queensland Treasury) [2022] QIRC 331
2 citations
Jump To
Cite 1 - [2022] QIRC 331
Cite 2 - [2022] QIRC 331
Galletly v State of Queensland (Queensland Health) [2023] QIRC 40
2 citations
Jump To
Cite 1 - [2023] QIRC 40
Cite 2 - [2023] QIRC 40
Gilmour v Waddell [2019] QSC 170
2 citations
Jump To
Cite 1 - [2019] QSC 170
Cite 2 - [2019] QSC 170
Goodall v State of Queensland [2018] QSC 319
2 citations
Jump To
Cite 1 - [2018] QSC 319
Cite 2 - [2018] QSC 319
Graf v State of Queensland (Department of Education) [2022] QIRC 451
3 citations
Jump To
Cite 1 - [2022] QIRC 451
Cite 2 - [2022] QIRC 451
Cite 3 - [2022] QIRC 451
Grundkvist v State of Queensland (Queensland Health) [2022] QIRC 135
4 citations
Jump To
Cite 1 - [2022] QIRC 135
Cite 2 - [2022] QIRC 135
Cite 3 - [2022] QIRC 135
Cite 4 - [2022] QIRC 135
Jones v State of Queensland (Queensland Ambulance Service) [2023] QIRC 22
2 citations
Jump To
Cite 1 - [2023] QIRC 22
Cite 2 - [2023] QIRC 22
Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320
2 citations
Jump To
Cite 1 - [2021] NSWSC 1320
Cite 2 - [2021] NSWSC 1320
McGarry v State of Queensland (Queensland Health) [2023] QIRC 32
2 citations
Jump To
Cite 1 - [2023] QIRC 32
Cite 2 - [2023] QIRC 32
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
2 citations
Jump To
Cite 1 - (2013) 249 CLR 332
Cite 2 - (2013) 249 CLR 332
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

Case NameFull CitationFrequency
Goodchild v State of Queensland (Department of Education) [2025] QIRC 462 citations
Goodchild v State of Queensland (Queensland Health) [2023] ICQ 263 citations
1

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