Sainty v State of Queensland (Queensland Health) (No. 2)
[2023] QIRC 78
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- Sainty v State of Queensland (Queensland Health) (No. 2)[2023] QIRC 78
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Sainty v State of Queensland (Queensland Health) (No. 2)[2023] QIRC 78
Sainty v State of Queensland (Queensland Health) (No. 2)[2023] QIRC 78
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Sainty v State of Queensland (Queensland Health) (No. 2) [2023] QIRC 078 |
PARTIES: | Sainty, Dianne (Appellant) v State of Queensland (Queensland Health) (Respondent) |
CASE NO.: | PSA/2022/595 |
PROCEEDING: | Public Service Appeal - Appeal against decision to suspend without remuneration |
DELIVERED ON: | 9 February 2023 |
HEARING DATE: | 9 February 2023 |
MEMBER: | Merrell DP |
HEARD AT: | Brisbane |
DATES OF WRITTEN SUBMISSIONS: | Respondent's written submissions filed on 5 October 2022, Appellant's written submissions filed on 31 October 2022 and Respondent's further written submissions on 21 November 2022. |
ORDER: | Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appealed against is confirmed. |
CATCHWORDS: | PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL – Appellant employed by the State of Queensland as a Dental Assistant in the Sunshine Coast Hospital and Health Service – 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 exemption – Appellant not granted exemption – Appellant was then directed to be vaccinated – Appellant failed to be vaccinated – Appellant invited to show cause why a disciplinary finding should not be made against her in relation to the allegation she did not comply with the direction that she receive a second dose of a COVID-19 vaccine by 31 October 2021 and why she should not be suspended without remuneration – Appellant submitted response which referred to her matter being raised to a Stage 3 grievance in accordance with various instruments – decision made that the Appellant be suspended without remuneration – Appellant appealed against decision to suspend her without remuneration – whether decision to suspend the Appellant without remuneration was fair and reasonable – decision fair and reasonable – decision confirmed |
LEGISLATION: | Health Employment Directive No. 12/21 - Employee COVID-19 vaccination requirements, cl 7, cl 8 and cl 10 Public Service Act 2008, s 137 |
CASES: | Sainty v State of Queensland (Queensland Health) [2022] QIRC 306 |
APPEARANCES: | Mr S. Ferguson, as agent for the Appellant Mr W. Campbell and Ms D. Conrad of the Sunshine Coast Hospital and Health Service for the State of Queensland (Queensland Health). |
Reasons for Decision (ex tempore)
Introduction and background
- [1]The background to this matter is set out in Sainty v State of Queensland (Queensland Health) (Sainty No. 1').[1]
- [2]In Sainty No. 1, I rejected Ms Sainty's application to stay the decision the subject of her appeal, namely, the decision to suspend her without remuneration pursuant to s 137 of the Public Service Act 2008 ('the PS Act') as from 10 May 2022 ('the decision').
- [3]These reasons for decision should be read and understood with paragraphs [1] to [11] of Sainty No. 1.
- [4]The present question for my determination is whether the decision was fair and reasonable.
The decision
- [5]In the decision, Mr Warren Campbell, Acting Director HR Strategy of the Sunshine Coast Hospital and Health Service ('the Health Service') stated, in respect of his decision that Ms Sainty should be suspended from duty without remuneration pursuant to s 137(4) of the PS Act:
In reaching my decision; I have considered the following:
- You have chosen not to follow the requirements of the Health Employment Directive No 12/21 Employee COVID-19 vaccination requirements (HED 12/21).
- Your role has been designated as being required to be vaccinated against COVID-19 within the scope of HED 12/21 with a vaccine approved by the Therapeutic Goods Administration (TGA). This decision was made by the Director General on the basis that a safe reliable COVID-19 vaccination program has been available to Queensland Health employees for some time, and, as Australia shifts to living with the virus, it recognises the expectation upon employers to protect both their workers and the public accessing their services.
- I am also mindful that, in addition to promoting the health and wellbeing of yourself, your colleagues and persons accessing health care through requiring vaccination, the purpose of the mandate is to ensure the continued readiness of the health system to respond to the changing nature of the pandemic-
- I also do not consider alternative duties, or a temporary transfer, or other alternative working arrangement to be available or appropriate in the current circumstances having regard to:
- the feasibility of working from home or alternate facilities and determined this is not a suitable option available to you given your substantive role as a Dental Assistant, Caloundra Hospital requires the provision of support services that directly impacts the care to patients of the Health Service.
- On 25 October 2021, the Director-General issued an email to all Departmental employees, mandating that employees who work in hospitals and healthcare facilities were to be fully vaccinated by 1 November 2021.
- Your work location is a hospital, specifically Caloundra Hospital.
- Since 13 December 2021, except in specific circumstances, a person who is unvaccinated (other than a patient of the hospital) must not enter or remain at a hospital. Further, since 10 November 2021, a worker in healthcare must not enter, work in, or provide services in a healthcare setting unless the worker in healthcare complies with the COVID-19 vaccination requirements.
- Accordingly, you are unable to attend a hospital (other than as a patient).
- Clause 6.3(c) of the Suspension Directive requires that I give consideration to the public interest of an employee remaining on suspension with remuneration. Whilst I acknowledge your decision not to have the required COVID-19 vaccinations, I have a statutory obligation to manage public resources efficiently, responsibly and in a fully accountable way.
- Having regard to the Sunshine Coast Hospital and Health Service's obligation to ensure the efficient management of public resources, and the importance of ensuring the safety of healthcare workers, support staff, their families» and the patients under our care, I do not consider it is in the public interest for you to remain on suspension with remuneration whilst your matter is brought to a conclusion.
Ms Sainty's submissions
- [6]In written submissions filed on 31 October 2022, Ms Sainty submitted that the decision was not fair and reasonable because:
- (a)the Health Service did not properly consider other alternative duties or alternative working arrangements for her prior to making the decision to suspend her, namely, alternative roles that did not require contact with patients or that could be performed from home, such as telehealth roles;
- (b)she had made genuine attempts to become vaccinated to preserve her role as a Dental Assistant, but she could not overcome the '… anxiety and fear resulting from uncertainty of receiving a vaccination, especially after personally witnessing negative effects on others as a result of COVID-19 vaccination';
- (c)throughout her life, she has faced serious and dangerous reactions to various medications which has led to her being very frightened and in need of an in-depth personal risk assessment before receiving any medication or vaccinations '… without long term studied effects';
- (d)the impact of the decision has left her in a state of extreme stress, causing a decline in her mental health, strain on her personal relationships and her financial circumstances; and
- (e)the decision encroaches upon Article 6(1) under part III of the International Covenant on Economic, Social and Cultural Rights ('the Convention') which relevantly provides:
The States Parties to the present Covenant recognise the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right.
The State's submissions
- [7]In its principal written submissions, the State submitted that the decision was fair and reasonable because:
- (a)at the relevant time of her suspension from duty, the Health Employment Directive No. 12/21 - Employee COVID-19 vaccination requirements ('the Directive') was reasonable and proportionate having regard to the public health risks of COVID-19;
- (b)Ms Sainty was notified of the proposed suspension without pay, was given an opportunity to respond and she took advantage of that opportunity;
- (c)prior to suspending Ms Sainty with remuneration, Mr Campbell considered whether there were any reasonable alternatives, including alternative duties or adjustments and he determined there was no reasonable alternative role or reasonable adjustments available, noting Ms Sainty is a Dental Assistant which is a front-line operational position in a facility where clinical services are provided; and, in those circumstances, it was entirely reasonable for Mr Campbell to determine there was no reasonable alternative roles or reasonable adjustments available which appropriately managed the risk that arose from Ms Sainty's non-compliance with the Directive;
- (d)
![Sainty v State of Queensland (Queensland Health) (No. 2) [2023] QIRC 78](/judgmentview/image?name=358467.001.jpg&id=358467)
while it was acknowledged the suspension without pay would have a financial impact on Ms Sainty, that was only one factor to be considered and it must be balanced against the Department's obligations to ensure the effective, efficient and appropriate use of public resources, including the spending of public funds;
- (e)the Directive mandates the COVID-19 vaccine for employees, Ms Sainty exercised a choice to refuse the direction and she was aware of the consequences of failing to become vaccinated under the Directive; and
- (f)it was fair and reasonable for Mr Campbell to consider it was not in the public interest for Ms Sainty to continue to be paid her normal remuneration in circumstances where Ms Sainty has made a choice not to follow the direction given to her by her employer and was therefore unable to attend to her normal work duties.
- [8]In further written submissions filed on 21 November 2022, in response to Ms Sainty's written submissions, the State further submitted that:
- (a)the previous decisions of the Commission considering appeals of this nature have consistently determined that vaccine hesitancy is not a recognised medical contraindication from receiving a COVID-19 vaccine, is not an exceptional circumstance and is not a reasonable excuse for failing to comply with the lawful direction to be vaccinated;
- (b)Ms Sainty has not provided any medical evidence:
- (i)of circumstances, specific to her, which meant she was unable to be safely administered the current vaccines; and
- (ii)that she had a recognised medical contraindication to receiving a COVID-19 vaccine;
- (c)there were no alternative duties available to Ms Sainty because, given her substantive role as a Dental Assistant at the Caloundra Hospital, her duties required her to provide direct clinical care to patients, working from home was not a suitable option and Queensland Health ('the Department') was not required to undertake a State-wide search to find another role she could undertake;
- (d)because Ms Sainty made the decision herself not to comply with the Directive and therefore, was unable to undertake her duties, the decision to suspend her without remuneration was reasonably justified having regard to the fact that the Department is a public agency with obligations with respect to financial accountability; and
- (e)there has been no breach of Ms Sainty's right to work, including that there has been no breach of the Convention (even if it applied in Australia which the Department submitted it did not), because the reason Ms Sainty was suspended without remuneration was because of her own choice not to comply with the Directive; and had she complied with the lawful direction to be vaccinated against COVID-19, she would not have been prevented from returning to work.
The decision was fair and reasonable
- [9]Ms Sainty was suspended with pay by Mr Campbell effective 25 January 2022. In coming to that decision, Mr Campbell stated that:
- (a)he reasonably believed Ms Sainty was liable to discipline under a disciplinary law because of her failure to be vaccinated in accordance with the direction; and
- (b)he did not consider that alternative duties, or a temporary transfer, or other alternative working arrangements were available or appropriate having regard to the facts that Ms Sainty:
- (i)was subject to the Directive and was required to be vaccinated against COVID-19 should she work in a facility where care was provided;
- (ii)was substantively employed in a frontline clinical role with her skill set being predominantly patient focused; and
- (iii)had failed to provide evidence that she had received the prescribed doses of a COVID-19 vaccine.
- [10]Mr Campbell concluded by stating that there were no viable alternative working arrangements available, at that time, which were appropriate to the operational requirements of the Health Service that would not require Ms Sainty to attend a facility where care was provided.
- [11]Those reasons were repeated in the decision to suspend Ms Sainty without remuneration.
- [12]The submissions made by the Department in this appeal are compelling.
- [13]Ms Sainty's position as part of the Health Service is as a Dental Assistant at the Caloundra Hospital. Ms Sainty's position is a front-line operational position in a facility where clinical services are provided. That meant, by virtue of the terms of the Directive, she was given a lawful direction to be vaccinated against COVID-19.
- [14]Ms Sainty refused to comply with that lawful direction.
- [15]Ms Sainty's reasons for refusing to comply with the lawful direction do not compel a conclusion that the decision to suspend her without remuneration was other than fair and reasonable. Ms Sainty was not granted an exemption under the Directive. Ms Sainty has provided no medical evidence that tends to prove her receiving an approved COVID-19 vaccine, namely, a vaccine approved by the Therapeutic Goods Administration, posed any danger to her.
- [16]Ms Sainty's real reason for refusing to be vaccinated is her own personal views about receiving a vaccine. This reason is disclosed from her submission that throughout her life, she has faced serious and dangerous reactions to various medications which has led her to become frightened and in need of an in-depth personal risk assessment to receive any medication or vaccination without there being a long-term study on the effects of such medication or vaccine.
- [17]Ms Sainty, despite these assertions in her submissions, provided no evidence about the serious and dangerous reactions to medication she has had throughout her life. Indeed, if such evidence had existed, it would have been reasonable to assume that Ms Sainty would have been exempted from the direction to be vaccinated. Ms Sainty did not particularise the negative effects in others, as a result of COVID-19 vaccination, that she stated she witnessed.
- [18]Ms Sainty's hesitancy to be vaccinated, therefore, is not a reasonable excuse to fail to comply with the lawful direction to be vaccinated.
- [19]Furthermore, because of Ms Sainty's clinical position at the Caloundra Hospital, it was reasonable for the Department not to allow her to work from home. Ms Sainty is employed as a Dental Assistant and it was reasonable for the Department to suspend her from duty when she made her own decision not to be vaccinated which meant that she could not attend the Caloundra Hospital to work in that position.
- [20]Ms Sainty also submitted that she could have performed a telehealth role. Ms Sainty did not expand upon that submission. Ms Sainty did not point to any evidence proving that there were such roles that she could perform given that her position was that of Dental Assistant. In those circumstances, the fact that the State did not appear to consider such a position does not render the decision other than fair and reasonable. While there is an obligation on the Department, pursuant to s 137(3) of the PS Act, to consider all reasonable alternatives, including alternative duties, a temporary transfer or another alternative arrangement, those alternatives had to be reasonable both from Ms Sainty's perspective and from the Department's. It was not a requirement that the Department put Ms Sainty into a position, the duties of which, the Department had no need to be performed.
- [21]In addition, I accept the State's submissions that it did not have to search the whole State for a position for Ms Sainty to perform, rather than suspending her. It was Ms Sainty's own decision not to comply with the direction that she should be vaccinated that resulted in her inability to attend the Caloundra Hospital to perform her role as a Dental Assistant.
- [22]Two final matters need to be mentioned.
- [23]First, I can appreciate the mental, relationship and financial stress under which Ms Sainty has found herself as a consequence of her suspension without remuneration. However, it seems to me that Ms Sainty must have been aware of the consequences of her failure to comply with the lawful direction to be vaccinated. Those consequences are of a decision of her own making.
- [24]Secondly, the State has not abrogated any right (if indeed such a right exists) or ability for Ms Sainty to work. Ms Sainty was suspended from duty because of her failure to comply with a lawful direction that she be vaccinated. Had Ms Sainty complied with the direction, then she would have continued working in her position as a Dental Assistant at the Caloundra Hospital.
- [25]For these reasons, the decision to suspend Ms Sainty without remuneration was fair and reasonable.
Conclusion
- [26]I will confirm the decision.
Order
- [27]I make the following order:
Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appealed against is confirmed.
Footnotes
[1][2022] QIRC 306.