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Fitzgerald v State of Queensland (Queensland Health)[2023] QIRC 87

Fitzgerald v State of Queensland (Queensland Health)[2023] QIRC 87

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Fitzgerald v State of Queensland (Queensland Health) [2023] QIRC 087

PARTIES:

Fitzgerald, Carmencita

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO.:

PSA/2022/1020

PROCEEDING:

Public Sector Appeal – Fair treatment decision

DELIVERED ON:

20 March 2023

HEARD AT:

On the papers

MEMBER:

McLennan IC

ORDER:

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

CATCHWORDS:

PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SECTOR APPEAL – where appellant applied for an exemption to the Health Employment Directive No. 12/21 – where respondent refused appellant's exemption application – where appellant applied for internal review of refusal to grant exemption – where upon review the respondent upheld the original refusal – consideration of medical contraindication to the COVID-19 vaccination – whether exceptional circumstances exist – where decision was fair and reasonable – decision appealed against confirmed

LEGISLATION & OTHER INSTRUMENTS:

Industrial Relations Act 2016 (Qld) s 451, s 562B, s 562C, s 564

Public Sector Act 2022 (Qld) s 131, s 133, s 134, s 289, s 324

Public Service Act 2008 (Qld) s 194

Work Health and Safety Regulations 2011 (Qld) s 38

Health Employment Directive No. 12/21 cl 7, cl 8, cl 10

CASES:

Barbagallo v State of Queensland (Queensland Health) [2022] QIRC 195

Bax v State of Queensland (Queensland Health) [2022] QIRC 304

Brasell-Dellow & Ors v State of Queensland, (Queensland Police Service) & Ors [2021] QIRC 356

Brown v State of Queensland (Queensland Ambulance Service) [2022] QIRC 312

Collins v State of Queensland (Queensland Health) [2022] QIRC 215

Donnelly v State of Queensland (Queensland Health) [2022] QIRC 149

Edwards v State of Queensland (Queensland Health) [2022] QIRC 091

Elliott v State of Queensland (Queensland Health) [2022] QIRC 332

Gilmour v Waddell & Ors [2019] QSC 170

Godwin v State of Queensland (Queensland Health) [2022] QIRC 240

Higgins v State of Queensland (Queensland Health) [2022] QIRC 030

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

Knight v State of Queensland (Queensland Ambulance Service) [2022] QIRC 283

Lamb v State of Queensland (Queensland Health) [2022] QIRC 237

McPaul v State of Queensland (Queensland Health) [2022] QIRC 175

Mocnik & Others v State of Queensland (Queensland Health) [2023] QIRC 058

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

Slykerman v State of Queensland (Queensland Health) [2022] QIRC 038

Sunny v State of Queensland (Queensland Health) [2022] QIRC 119

Tilley v State of Queensland (Queensland Health) [2022] QIRC 002

Reasons for Decision

Introduction

  1. [1]
    Mrs Carmencita Fitzgerald (the Appellant) is employed by Queensland Health, State of Queensland (the Respondent) as a Registered Nurse within the Children's Health Queensland Hospital and Health Service (CHQHHS).
  1. [2]
    The Health Employment Directive No. 12/21 Employee COVID-19 vaccination requirements (Directive 12/21) mandates that particular groups of health service employees must receive the COVID-19 vaccine.[1]
  1. [3]
    Relevantly, cl 8 of Directive 12/21 provides the following:
  1. 8.1
    Existing employees currently undertaking work or moving not a role undertaking work listed in a cohort of Table 1, must:
  1. a.
    have received at least the first dose of a COVID-19 vaccine by 30 September 2021; and
  1. b.
    have received the second dose of a COVID-19 vaccine by 31 October 2021.
  1. An existing employee must provide to their line manager or upload into the designated system:
  1. a.
    evidence of vaccination confirming that the employee has received at least the first dose of a COVID-19 vaccine by no later than 7 days after receiving the vaccine.
  1. b.
    Evidence of vaccination confirming that the employee has received the second dose of a COVID-19 vaccine by no later than 7 days after receiving the vaccine.
  1. …
  1. The requirements of this clause 8 do not apply to existing employees who have been granted an exemption under clause 10 of this HED.
  1. [4]
    The Respondent categorised the Appellant's role as falling within "Group 2" under cl 7.1 of Directive 12/21 which covers employees who work in a hospital or other facility where clinical care or support is required.
  1. [5]
    On 30 September 2021, the Appellant applied for an exemption on the basis of "a recognised medical contraindication to the COVID-19 vaccine". The Appellant did not provide any material to support her exemption application, nor did she provide any evidence of a medical contraindication to the COVID-19 vaccine. 
  1. [6]
    On 9 November 2021, the Appellant emailed CHQHHS advising:
  • she held a "genuine concern" for her health, safety and the risks regarding "immediate and long-term adverse reaction" to COVID-19 vaccination;
  • she had an "autoimmune illness in [her] 20s" known as "Idiopathic Thrombocytopenic Purpura" which was managed by iron tablets;
  • she had asthma, was anaphylactic to certain foods, chemicals, and preservatives; and
  • although she had been tested by an Immunologist for allergies, her results were inconclusive because she "can react to anything".
  1. [7]
    On 16 December 2021, the Appellant submitted a further exemption application "based on many delicate health concerns including auto immune disorders".
  1. [8]
    By letter dated 25 February 2022, CHQHHS wrote to the Appellant advising her paid special discretionary leave would no longer be approved while her exemption application was pending an outcome and they had identified alternative duties for her to complete from home commencing 28 February 2022. The Appellant subsequently worked from home on data entry.
  1. [9]
    On 2 August 2022, Dr Paul Griffin, Infectious Diseases Physician and Clinical Microbiologist, completed a medical report with respect to Ms Fitzgerald's ability to receive a COVID-19 vaccine. After considering the Appellant's medical history, including her significant allergy history, Dr Griffin opined the Appellant did not have a medical contraindication to any of the COVID-19 vaccines available to her and she would be able to comply with Directive 12/21.
  1. [10]
    By letter dated 15 September 2022, CHQHHS advised the Appellant her application for an exemption had been refused.
  1. [11]
    On 23 September 2022, the Appellant requested a review of the decision to refuse her exemption application.
  1. [12]
    By letter dated 24 November 2022, Ms Sandra Eckstein[2] (the decision-maker) advised the Appellant she had conducted an internal review of the original exemption refusal and determined to confirm the original refusal (the Exemption Decision).
  1. [13]
    On 15 December 2022, the Appellant filed an Appeal Notice in the Industrial Registry.

Jurisdiction

The decision subject of this appeal

  1. [14]
    On 1 March 2023, the Public Sector Act 2022 (Qld) (the PS Act) came into effect. Pursuant to s 289 of the PS Act, the Public Service Act 2008 (Qld) is repealed. Section 324 of the PS Act relevantly provides:
  1. (1)
    This section applies if—
  1. (a)
    before the commencement, a person appealed against a decision under the repealed Act, section 194; and
  1. (b)
    immediately before the commencement, the appeal had not been decided.
  1. (2)
    From the commencement, the appeal must be heard and decided under chapter 3, part 10.
  1. [15]
    On 15 December 2022, before the commencement of the PS Act, the Appellant filed an appeal against the Exemption Decision in the Industrial Registry. Immediately before the commencement of the PS Act, this appeal had not been decided. Therefore, the appeal must be heard and decided under chp 3, pt 10 of the PS Act.
  1. [16]
    On p 3 of the Appeal Notice, the Appellant identifies the type of decision being appealed:

I am appealing a decision made (or failed to be made) under a directive issued in accordance with s 53, s 54 or s 54A of the Public Service Act 2008 which allows me to appeal. I have used my employer's individual employee grievances process before lodging this appeal. Please provide the directive: Health Employment Directive No. 12/21

  1. [17]
    Section 131 of the PS Act[3] identifies the categories of decisions against which an appeal may be made. Section 131(1)(b) of the PS Act provides that an appeal may be made against "a directive decision". However, as Deputy President Merrell noted in Higgins v State of Queensland (Queensland Health),[4] Directive 12/21 does not allow employees to appeal. Upon review of Directive 12/21, I agree and conclude that the Exemption Decision is more appropriately characterised as a "fair treatment decision", i.e., a decision which the Appellant contends is unfair and unreasonable and which is appealable under s 131(1)(d) of the PS Act.
  1. [18]
    Section 134 of the PS Act allows for the appeal to be heard and decided by the Commission. 
  1. [19]
    Section 133(d) of the PS Act prescribes that a public sector employee aggrieved by a fair treatment decision may appeal. The Appellant meets that requirement.
  1. [20]
    I am satisfied that the Exemption Decision is able to be appealed.

Timeframe for appeal

  1. [21]
    Section 564(3) of the Industrial Relations Act 2016 (Qld) (the IR Act) requires that an appeal be lodged within 21 days after the day the decision appealed against is given. That is the relevant inquiry with respect to timeframes. I note that despite the question posed in the Form 89 – Appeal Notice regarding when the decision was received.
  1. [22]
    The Exemption Decision is dated 24 November 2022. The Appeal Notice was filed on 15 December 2022. Therefore, I am satisfied the Appeal Notice was filed by the Appellant within the required timeframe.

What decisions can the Commission make?

  1. [23]
    Section 562C of the IR Act prescribes that the Commission may determine to either:
  • confirm the decision appealed against;
  • set the decision aside and return the matter to the decision-maker with a copy of the decision on appeal and any directions considered appropriate; or
  • set the decision aside and substitute another decision.

Consideration

Appeal principles

  1. [24]
    Section 562B(2)-(3) of the IR Act provides that the appeal is decided by reviewing the decision appealed against "to decide whether the decision appealed against was fair and reasonable".
  1. [25]
    The appeal is not conducted by way of re–hearing, but rather involves a review of the decision arrived at by the Respondent and the associated decision–making process.
  1. [26]
    Findings made by the decision-maker, which are reasonably open to them, should not be disturbed on appeal.
  1. [27]
    The relevant principles in considering whether a decision is 'unreasonable' were enunciated by Ryan J in Gilmour v Waddell & Ors (emphasis added, citations removed):[5]

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.

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

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

The pluarity in Li said:

… when something is to be done within the discretion of an authority, it is to be done according to the rules of reason and justice. That is what is meant by ‘according to law’. It is to be legal and regular, not vague and fanciful …

… there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court’s view as to how a discretion should be applied for that of a decision-maker …

… it is necessary to look to the scope and purpose of the statute conferring the discretionary power and its real object … The legal standard of reasonableness must be the standard indicated by the true construction of the statute. It is necessary to construe the statute because the question to which the standard of reasonableness is addressed is whether the statutory power has been abused.

… Unreasonableness is a conclusion which may be applied to a decision which lacks an evidence and intelligible justification.

Submissions

  1. [28]
    In accordance with the Directions Order issued on 20 December 2022, the parties filed written submissions.
  1. [29]
    Pursuant to s 451(1) of the IR Act, no hearing was conducted in deciding this Appeal.  The matter was decided on the papers.
  1. [30]
    I have carefully considered all submissions and annexures but have determined not to approach the writing of this Decision by summarising the entirety of the material. My focus is on determining whether the Exemption Decision appealed against is fair and reasonable so I will instead refer only to the parties' key positions in my consideration.

The Exemption Decision

  1. [31]
    Clause 10 of Directive 12/21 allows employees to apply for an exemption, providing:
  1. 10.1
    Where an existing employee is unable to be vaccinated they are required to complete an exemption application form.
  1. 10.2
    Exemptions will be considered in the following circumstances:
  • Where an existing employee has a recognised medical contraindication;
  • Where an existing employee has a genuinely held religious belief;
  • Where another exceptional circumstance exists.
  1. 10.3
    If an existing employee is granted an exemption, they do not have to comply with clause 8 or 9 of this HED for the duration of that exemption.

The request

  1. [32]
    On 30 September 2021, the Appellant applied for an exemption, on the basis of "a recognised medical contraindication to the COVID-19 vaccine".[6] The application did not include a medical certificate from the Appellant's treating specialist medical practitioner.
  1. [33]
    Subsequently on 9 November 2021, the Appellant sent the Respondent an email stating:
  • "I have an autoimmune illness in my 20's called ITP (Idiopathic Thrombocytopenic Purpura)";
  • she has asthma;
  • she is anaphylactic to certain food, chemicals and preservatives;
  • she has "a very high blood pressure" which has now affected her heart;
  • on two occasions she has almost come close to having a stroke;
  • she is waiting for surgery for the lump on her neck which is benign so far; and
  • the risk assessment is high for her because of complex allergies and medical issues.

The original refusal

  1. [34]
    On 15 September 2022, Mr Dominic Tait[7] advised the Appellant of the decision to deny her request for an exemption. Within that letter, reference was made to two exemption applications – one on the basis of a medical contraindication and the other on the basis of other exceptional circumstances submitted on 16 December 2021. The parties did not provide a copy of the exemption application concerning other exceptional circumstances – however I have gleaned the contents from the response and further submissions of the Appellant below.
  1. [35]
    In that correspondence, Mr Tait responded to the Appellant's concerns about receiving the COVID-19 vaccination with the following:
  • although the Appellant advised her treating specialist would not provide a medical certificate in support of the exemption application, due to the extensive list of medical concerns presented by the Appellant, the CHQHHS sought specialist advice from Dr Paul Griffin in good faith;
  • on 27 July 2022, the Appellant met with Dr Griffin to discuss her inability to comply with the Directive;
  • in a report dated 2 August 2022, Dr Griffin confirmed the Appellant does not have a recognised contraindication to any of the COVID-19 vaccinations and highlighted the Appellant is able to comply with the Directive; and
  • vaccine hesitancy and conscientious objection, by themselves, are not considered exceptional circumstances.

The Appellant's response

  1. [36]
    On 23 September 2022, the Appellant responded to the original refusal of her exemption request and outlined further submissions in support of exemption, including:
  • Dr Griffin did not consider the documented risks and discuss the thousands of adverse effects which can potentially harm or disable a person or even cause death;
  • the COVID-19 vaccine does not prevent transmission or contracting of the disease;
  • COVID-19 "is not as bad as what is was portrayed on TV";
  • her rights;
  • reference to data and medical research;
  • several questions;
  • the Appellant does not consent;
  • requests for further information;
  • the Appellant is the only one in her ward who is unvaccinated; and
  • the Appellant is willing to be deployed somewhere where there is no patient contact.

The Exemption Decision

  1. [37]
    Upon review of the original exemption refusal and subsequent submissions presented by the Appellant, the decision-maker reached the conclusion that Mr Tait "has undertaken appropriate steps and considerations in relation to your mandatory vaccination exemption request in his decision to refuse your exemption application."
  1. [38]
    The Exemption Decision relevantly provided:
  • the Appellant's applications fail to demonstrate a recognised medical contraindication to the COVID-19 vaccine;
  • specialist advice from Dr Griffin indicates the Appellant is able to receive the COVID-19 vaccine;
  • the Appellant's conditions do not meet the requirements under recognised medical contraindication and therefore, would not be considered an exceptional circumstance;
  • vaccine hesitancy and conscientious objection, by themselves, are not considered exceptional circumstances;
  • the purpose of the requirement to be vaccinated includes protecting staff and patients from infection from COVID-19 and the maintenance of a proper and efficient health system;
  • no less restrictive, yet effective alternatives exist;
  • limits on human rights including the Appellant's rights to equality and non-discrimination are justified by the need to ensure the readiness of the health system in responding to COVID-19 and the intent of Directive 12/21;
  • the impact on human rights is outweighed by the need to protect life and ensure the readiness of the health system;
  • the requirement to be vaccinated is a condition of the Appellant's employment which is materially different from a situation involving coercive medical treatment or circumstances giving rise to an inability to provide free and informed consent;
  • the Appellant has had access to information with respect to safety and efficacy of COVID-19 vaccinations and/or research indicating the vaccinations are safe and effective against transmission;
  • it is not incumbent upon Queensland Health or CHQ to accept the Appellant's views, noting the weight of medical and scientific evidence against them; and
  • the COVID-19 vaccinations have been approved by the Therapeutic Goods Administration (TGA) and the Australian Technical Advisory Group on Immunisation – the TGA's approval of relevant vaccines is a matter of public record and is evidence of their safety and efficacy.

The Appeal

  1. [39]
    Upon review of the Appeal Notice and the Appellant's submissions, I have discerned that the Appellant contends the Exemption Decision is unfair and unreasonable for the following reasons:
  • the Exemption Decision is inconsistent with s 13 of the Human Rights Act 2019 (Qld);
  • the decision-maker has not sufficiently considered whether there are any less restrictive and reasonably available ways to achieve the purpose of Directive 12/21;
  • personal health concerns;
  • Directive 12/21 amounts to coercion; and
  • the Department and chosen specialist have not wholly considered best clinical evidence to inform their decisions.

Consideration

Medical contraindication

  1. [40]
    The Appellant sought an exemption on the basis of a medical contraindication.
  1. [41]
    An exemption request on the basis of a medical contraindication requires a letter from the Appellant's treating specialist medical practitioner outlining a medical contraindication to the COVID-19 vaccine.[8] The Appellant has not provided such evidence. On that basis, any personal health concerns raised by the Appellant will not be considered as legitimate medical contraindications and the decision to not grant the Appellant an exemption on this basis was fair and reasonable in the circumstances.
  1. [42]
    In my view, the Department went above and beyond in taking the step of asking the Appellant to be examined by Dr Griffin. It is clear that the Department was open to learn more about the Appellant's medical concerns with a view to taking into consideration the opinion of a medical specialist. Dr Griffin concluded the Appellant was able to safely receive an available COVID-19 vaccination. It was open to the Appellant to source a conflicting opinion – however she did not do so. The Appellant's differing view does not deem Dr Griffin's report invalid or unsound.
  1. [43]
    The Appellant argues that the Department's chosen specialist has not wholly considered best clinical evidence to inform his decision. It does not appear on the evidence before me that the Appellant is herself a doctor and therefore I am not satisfied that she is in a position to contest Dr Griffin's assessment of same. Significantly, the COVID-19 vaccinations have been approved by the TGA and ATAGI. Further, it was open to the Appellant to source her own medical practitioner and ascertain whether anyone would support her own research – however she either did not do so or was unable to do so.
  1. [44]
    I acknowledge the Appellant's health concerns, however the simple fact of the matter is that she has been unable to identify a medical specialist who is willing to certify those concerns as a legitimate contraindication to the COVID-19 vaccine. In the absence of such certification, it was reasonable for the decision-maker to reject the exemption application.

Coercion and consent

  1. [45]
    The Appellant argues that the Exemption Decision is unfair and unreasonable because Directive 12/21 amounts to coercion to receive a medical treatment under threat of disciplinary action. The Appellant refers to the concept of free and informed consent.
  1. [46]
    I am not satisfied that the Appellant has been coerced or deprived of the ability to freely consent with respect to receiving the COVID-19 vaccination. The Appellant may freely choose not to receive the COVID-19 vaccination - it is not being forced upon her. The alternative to consenting to the vaccination is electing not to receive it – the Appellant has freely made that decision. There is no obligation that the Appellant continue to work Queensland Health.
  1. [47]
    The issue of consent was also considered in the matter of Kassam v Hazzard; Henry v Hazzard[9] where it was confirmed that consent is not vitiated by it being given in response to a condition of continued employment. I accept that view.

Human Rights Act 2019 (Qld)

  1. [48]
    The Appellant argues that Queensland Health have not established sufficient grounds to override the inconsistency with her human rights.
  1. [49]
    In Mocnik & Others v State of Queensland (Queensland Health),[10] Vice President O'Connor concluded (citations omitted):
  1. [61]
    The Applicants bear the onus of establishing that the decision imposes a limit on human rights.   If established, the Respondent bears the onus of justifying the limit.   The onus is a practical one.  The standard of proof is the civil standard on the balance of probabilities.   But the test in s 13(2) of the HR Act requires the limitations to be both reasonable and "demonstrably justified", which imposes a "stringent standard of justification".
  1. [62]
    In respect of what human rights are alleged to have been breached it is submitted:
  1. ... the rights raised by the Applicants, arising from ss 17, 20, 23 and 27 of the HR Act, are rights which are critical to the promotion of a free and democratic society and are expressly intended to by protected and promoted by the introduction of the HR Act.  Any limitation to those rights is contrary to human dignity, equality and freedom. 
  1. [63]
    The Applicants do not in their submissions articulate how it is alleged HED 12/21 breached ss 17, 20, 23 and 27 of the HR Act.  Moreover, the Applicants have not adduced any evidence to support the contentions raised.
  1. [64]
    It needs to be borne in mind that s 13 of the HR Act articulates a proportionality principle by which a human right may be subject under law to "reasonable limits that can be demonstrably justified in a free and democratic society".
  1. …
  1. [70]
    Moreover, the issue for the Commission is to balance the competing interests of society, including the public interest, and to determine what is required for a person to obtain or retain the benefit of the rights recognised or bestowed by the HR Act.
  1. [71]
    Recognising the evidentiary burden placed on the Respondents, expert evidence was adduced from Professor Damon Eisen and Associate Professor Paul Griffin part of which is set out in [34] to [42] above.  It was the only expert evidence before the Commission.
  1. [72]
    The evidence of Professor Damon Eisen and Associate Professor Paul Griffin was in my view cogent and persuasive.
  1. [73]
    Under the HHB Act, a 'health service' is defined as a 'service for maintaining, improving, restoring, or managing people's health and wellbeing'.   Section 19(1) of HHB Act provides that 'A Service's main function is to deliver the hospital services, other health services, teaching, research and other services stated in the service agreement for the Service'.  It was incumbent on Dr Wakefield to take all reasonable steps to ensure the maintenance and continuation of a health service during the pandemic.  As Professor Eisen observed in his report, "Mandatory COVID-19 vaccination reduced the likelihood of staff shortages in Queensland Health Services preventing further patient harm."
  1. [74]
    I accept that HED 12/21 was an important health measure introduced to provide protection to the community from serious and widespread disease.
  1. [75]
    In balancing the competing interests of society, including the public interest, I am of the view that the limit imposed by the issuing of HED 12/21 was a reasonable and justifiable limit and one which was demonstrably justified by reference to s 13 of the HR Act.
  1. [76]
    It follows therefore that I have formed the view I do not consider that HED 12/21 is inconsistent with the HR Act within the meaning of s 51B of the HHB Act.
  1. [50]
    I adopt Vice President O'Connor's consideration herein.
  1. [51]
    Further, I am satisfied that the Appellant's human rights were taken into account and that any limitation was justified by the need to ensure 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.
  1. [52]
    The decision-maker appropriately considered and concluded:

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 your 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.

…

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 COVID-19, and to protect the lives of employees, patients and the community they serve.

  1. [53]
    I have reviewed the above excerpts and am satisfied the Respondent's consideration of human rights does not render the Exemption Decision unfair or unreasonable. The Appellant's views on human rights simply differ to that of the Respondent and a differing view does not render the Appellant's circumstances 'exceptional'.

Alternative ways to achieve purpose of Directive 12/21

  1. [54]
    The Appellant contends the decision-maker has not sufficiently considered whether there are any less restrictive and reasonably available ways to achieve the purpose of Directive 12/21. In this regard, the Appellant notes the Department previously accommodated her working from home arrangement.
  1. [55]
    I am unconvinced that this is a relevant consideration at the point of considering whether or not to grant an exemption. Certainly, it ought be considered when determining whether to suspend an employee without remuneration. Nevertheless, the decision-maker affirmed that no less restrictive, yet effective alternatives can be identified. I am satisfied the decision maker considered the Appellant's submission regarding the possibility of working remotely or being deployed elsewhere.
  1. [56]
    I accept that the Department could not have reasonably acted differently, including by providing a wider framework of exemptions. In light of the various responsibilities that fall under the Appellant's role, I find that it was fair and reasonable for the Respondent to form the view that there were no alternative working arrangements available having regard to the Department's responsibility to manage the risks associated with COVID-19.

Risk assessment

  1. [57]
    The Appellant argues that it was unreasonable for the Department not to provide a risk assessment.
  1. [58]
    In Mocnik & Others v State of Queensland (Queensland Health),[11] Vice President O'Connor concluded (citations omitted):
  1. [111]
    In answering the specific question before the Commission, no obligation is imposed on the Respondent under the WHS Act or the Code to provide a risk assessment for each business unit to individual Applicants on request post implementing HED 12/21 under the WHS Act 2011.
  1. [59]
    The Appellant has not convinced me that the Department was obligated to provide a risk assessment. I am not satisfied that this factor renders the Exemption Decision unfair or unreasonable. 
  1. [60]
    The Appellant also made several arguments in her reply submissions regarding the Work Health and Safety Regulations 2011 (Qld) and the obligation to review control measures under s 38. I emphasise that Directive 12/21 and the requirement to receive a COVID-19 vaccination has been consistently found to be lawful and reasonable.[12] At the conclusion of her reply submissions, the Appellant seeks that the Department's enforcement of Directive 12/21 is stayed until a sufficient review and revision of the  control measure is completed according to the Work Health and Safety Regulations 2011 (Qld). That is not an order that can be made through the Public Sector Appeal pathway – I have outlined the outcomes available to the Appellant at [23] above. This decision is concerned only with determining whether the Exemption Decision was fair and reasonable and I can only confirm, set aside and substitute that specific Exemption Decision. In any event, these arguments are not relevant to the decision to refuse the Appellant's exemption request as she was unable to satisfy the Department that she had a medical contraindication or exceptional circumstances warranting an exemption.

Other matters

  1. [61]
    The Appellant's submissions referred to various other matters. In Elliott v State of Queensland (Queensland Health), Industrial Commissioner Dwyer stated:[13]
  1. [29]
    The commission has now dealt with a great many appeals of this nature. Consequently, a reliable body of jurisprudence has been developed dealing with increasingly common themes in the arguments advanced by appellants like Ms Elliott, who have not complied with a vaccine mandate applicable in their respective departments of employment.
  1. [30]
    Notwithstanding that these decisions are available publicly on the Queensland Courts website, appellants continue to file these appeals challenging the validity of directions for them to be vaccinated and relying on arguments such as 'vaccines are not safe' or 'mandates are coercion' or 'human rights infringements' or 'risk assessments were not provided' or 'consultation did not occur' et cetera.
  1. [31]
    It is more than apparent that the vast majority of such appellants have no regard for the reported decisions or if they do, they simply press on, expecting that somehow the outcome will be different in their case. With the exception of a small number of decisions returned to departments for technical inadequacies, no appellant has succeeded on the increasingly tedious suite of arguments of this nature.[14]
  1. [32]
    The continued use of the commission's resources to receive and repeatedly dispense with the same arguments cannot be in the public interest. In circumstances where there is now a reliable body of decisions dispensing with similar arguments, it is my view that appellants seeking to reagitate settled arguments should be required to justify why they ought to be heard.
  1. [62]
    The Appellant's arguments similarly traverse many of the consistently rejected positions presented in previous matters and so I do not intend to engage in a detailed analysis of each and every argument.
  1. [63]
    Directive 12/21 and the requirement to receive a COVID-19 vaccination has been consistently found to be lawful and reasonable.[15]
  1. [64]
    In response to the remaining matters, I refer to Tilley v State of Queensland (Queensland Health) in which Industrial Commissioner Hartigan concluded the following:
  1. [39]
    The other matters, referred to above, raised by Mr Tilley form the basis of his personal preference not to receive a vaccine. I do not consider the matters relied on by Mr Tilley result in Directive 12/21 being unreasonable. In this regard, cl 6 of Directive 12/21 identifies the risk posed by the virus to staff, patients and the broader community and the Directive is aimed at minimising such a risk. I consider that to be reasonable. [16]
  1. [65]
    I similarly conclude that the remaining matters raised by the Appellant evince her personal preference not to receive the COVID-19 vaccination. I do not consider those matters render the Exemption Decision unfair or unreasonable.
  1. [66]
    In Higgins v State of Queensland (Queensland Health), Deputy President Merrell relevantly concluded:
  1. [59]
    In Ms Higgins' letter dated 30 September 2021, submitted as part of her appeal and which was submitted as part of her application for exemption, she did not give any particular reasons which gave rise to any exceptional circumstance. Ms Higgins merely set out a number of questions to her Team Leader and to the Human Resources team in the Health Service in respect of which she requested answers. Ms Higgins then stated that upon considering those answers, she may then '… be happy to accept your offer to receive the treatment, but with certain conditions.'
  1. [60]
    In my view, the Directive does not contain an offer to receive treatment but contains a direction to particular employees to be vaccinated.
  1. [61]
    The fact that Ms Higgins may be hesitant to receive a COVID-19 vaccine and genuinely hold that hesitancy does not mean it is incumbent upon the State to accept that view.[17]  
  1. [67]
    The Appellant asks several questions of the Department that she argues "should be justly addressed regarding the reasonableness of this matter". In my view, the fact that the Appellant has not received answers to the remaining queries or has not been satisfied with certain responses does not constitute an "exceptional circumstance". In light of that finding, I reject any inference that the Exemption Decision was unfair and unreasonable on this basis. 
  1. [68]
    The Department's "Employee COVID-19 vaccine exemption application form" states (emphasis added):

In extremely limited circumstances, an employee may also use this form to detail other exceptional circumstances which preclude them from meeting the COVID-19 vaccine requirements. In this circumstance:

  • Vaccine hesitancy and conscientious objection, by themselves, are not considered exceptional circumstances.
  • Some other extenuating circumstances must exist.

Where this can be demonstrated, the employee's circumstances will be considered on an individual basis in accordance with Queensland Health's legislative obligations and industrial arrangements however, it is expected that there would be limited applications that would meet exemptions requirements.

  1. [69]
    Clearly the Respondent does not dispute that the Appellant is concerned about reacting to the vaccination. Seeking an exemption because one is concerned of an adverse reaction is not an unusual or extraordinary circumstance.
  1. [70]
    The Appellant has also raised several issues with the accuracy and quality of evidence behind the COVID-19 vaccine. Again, the issue for the Appellant is that her concerns are not 'exceptional' and on that basis, the Respondent had a fair and reasonable cause to refuse her exemptions request.
  1. [71]
    Vaccine hesitancy is not itself uncommon and it may stem from a range of reasons. The Appellant has presented many arguments and raised many questions that are just that, arguments and questions - they are not "exceptional circumstances" warranting an exemption.

Conclusion

  1. [72]
    The Appellant presented various reasons for why she contends her exemption application should have been accepted and why the refusal was not fair or reasonable. I have considered those submissions and conclude that the reasons for refusal were reasonably justified on the evidence before the decision-maker after consideration of all relevant matters. On that basis, I conclude that the Exemption Decision was fair and reasonable and will confirm that Decision accordingly.

Order

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

Footnotes

[1] Health Employment Directive No. 12/21 cls 1, 7-8.

[2] A/Executive Director People and Governance.

[3] Equivalent provision in the Public Service Act 2008 (Qld) was s 194.

[4] [2022] QIRC 030, 4 [12].

[5] [2019] QSC 170, [207]-[210], citing Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, [63]-[76].

[6] Employee COVID-19 vaccine exemption application form, 30 September 2021, 3.

[7] Executive Director, Clinical Services.

[8] Employee COVID-19 Vaccine Exemption Application Form, 3.

[9] [2021] NSWSC 1320.

[10] [2023] QIRC 058.

[11] [2023] QIRC 058.

[12] Slykerman v State of Queensland (Queensland Health) [2022] QIRC 038, [36], [39] and [41]; Bax v State of Queensland (Queensland Health) [2022] QIRC 304, [53]; Donnelly v State of Queensland (Queensland Health) [2022] QIRC 149, [30].

[13] [2022] QIRC 332.

[14] See for example: Brasell-Dellow & Ors v State of Queensland, (Queensland Police Service) & Ors [2021] QIRC 356; Tilley v State of Queensland (Queensland Health) [2022] QIRC 002; Slykerman v State of Queensland (Queensland Health) [2022] QIRC 039; Higgins v State of Queensland (Queensland Health) [2022] QIRC 030; Sunny v State of Queensland (Queensland Health) [2022] QIRC 119; Collins v State of Queensland (Queensland Health) [2022] QIRC 215; Edwards v State of Queensland (Queensland Health) [2022] QIRC 091; Barbagallo v State of Queensland (Queensland Health) [2022] QIRC 195; McPaul v State of Queensland (Queensland Health) [2022] QIRC 175; Knight v State of Queensland (Queensland Ambulance Service) [2022] QIRC 283; Brown v State of Queensland (Queensland Ambulance Service) [2022] QIRC 312; Godwin v State of Queensland (Queensland Health) [2022] QIRC 240; Lamb v State of Queensland (Queensland Health) [2022] QIRC 237. There are numerous others. 

[15] Slykerman v State of Queensland (Queensland Health) [2022] QIRC 038, [36], [39] and [41]; Bax v State of Queensland (Queensland Health) [2022] QIRC 304, [53]; Donnelly v State of Queensland (Queensland Health) [2022] QIRC 149, [30].

[16] [2022] QIRC 002.

[17] [2022] QIRC 030, 14.

Close

Editorial Notes

  • Published Case Name:

    Fitzgerald v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Fitzgerald v State of Queensland (Queensland Health)

  • MNC:

    [2023] QIRC 87

  • Court:

    QIRC

  • Judge(s):

    McLennan IC

  • Date:

    20 Mar 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
Barbagallo v State of Queensland (Queensland Health) [2022] QIRC 195
2 citations
Jump To
Cite 1 - [2022] QIRC 195
Cite 2 - [2022] QIRC 195
Bax v State of Queensland (Queensland Health) [2022] QIRC 304
3 citations
Jump To
Cite 1 - [2022] QIRC 304
Cite 2 - [2022] QIRC 304
Cite 3 - [2022] QIRC 304
Brasell-Dellow v State of Queensland, (Queensland Police Service) [2021] QIRC 356
2 citations
Jump To
Cite 1 - [2021] QIRC 356
Cite 2 - [2021] QIRC 356
Brown v State of Queensland (Queensland Ambulance Service) [2022] QIRC 312
2 citations
Jump To
Cite 1 - [2022] QIRC 312
Cite 2 - [2022] QIRC 312
Collins v State of Queensland (Queensland Health) [2022] QIRC 215
2 citations
Jump To
Cite 1 - [2022] QIRC 215
Cite 2 - [2022] QIRC 215
Donnelly v State of Queensland (Queensland Health) [2022] QIRC 149
3 citations
Jump To
Cite 1 - [2022] QIRC 149
Cite 2 - [2022] QIRC 149
Cite 3 - [2022] QIRC 149
Edwards v State of Queensland (Queensland Health) [2022] QIRC 91
2 citations
Jump To
Cite 1 - [2022] QIRC 91
Cite 2 - [2022] QIRC 91
Elliott v State of Queensland (Queensland Health) [2022] QIRC 332
2 citations
Jump To
Cite 1 - [2022] QIRC 332
Cite 2 - [2022] QIRC 332
Gilmour v Waddell [2019] QSC 170
2 citations
Jump To
Cite 1 - [2019] QSC 170
Cite 2 - [2019] QSC 170
Godwin v State of Queensland (Queensland Health) [2022] QIRC 240
2 citations
Jump To
Cite 1 - [2022] QIRC 240
Cite 2 - [2022] QIRC 240
Higgins v State of Queensland (Queensland Health) [2022] QIRC 30
4 citations
Jump To
Cite 1 - [2022] QIRC 30
Cite 2 - [2022] QIRC 30
Cite 3 - [2022] QIRC 30
Cite 4 - [2022] QIRC 30
Karen v State of Queensland (Queensland Police Service) [2022] QIRC 38
3 citations
Jump To
Cite 1 - [2022] QIRC 38
Cite 2 - [2022] QIRC 38
Cite 3 - [2022] QIRC 38
Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320
2 citations
Jump To
Cite 1 - [2021] NSWSC 1320
Cite 2 - [2021] NSWSC 1320
Knight v State of Queensland (Queensland Ambulance Service) [2022] QIRC 283
2 citations
Jump To
Cite 1 - [2022] QIRC 283
Cite 2 - [2022] QIRC 283
Lamb v State of Queensland (Queensland Health) [2022] QIRC 237
2 citations
Jump To
Cite 1 - [2022] QIRC 237
Cite 2 - [2022] QIRC 237
McPaul v State of Queensland (Queensland Health) [2022] QIRC 175
2 citations
Jump To
Cite 1 - [2022] QIRC 175
Cite 2 - [2022] QIRC 175
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
Mocnik v State of Queensland (Queensland Health) [2023] QIRC 58
3 citations
Jump To
Cite 1 - [2023] QIRC 58
Cite 2 - [2023] QIRC 58
Cite 3 - [2023] QIRC 58
Slykerman v State of Queensland (Queensland Health) [2022] QIRC 39
1 citation
Jump To
Cite 1 - [2022] QIRC 39
Sunny v State of Queensland (Queensland Health) [2022] QIRC 119
2 citations
Jump To
Cite 1 - [2022] QIRC 119
Cite 2 - [2022] QIRC 119
Tilley v State of Queensland (Queensland Health) [2022] QIRC 2
3 citations
Jump To
Cite 1 - [2022] QIRC 2
Cite 2 - [2022] QIRC 2
Cite 3 - [2022] QIRC 2

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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