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  4. Sher v State of Queensland (Queensland Health) - [2023] QIRC 88

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Sher v State of Queensland (Queensland Health)[2023] QIRC 88

Sher v State of Queensland (Queensland Health)[2023] QIRC 88

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Sher v State of Queensland (Queensland Health) [2023] QIRC 088

PARTIES:

Sher, Deborah

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO.:

PSA/2023/9

PROCEEDING:

Public Sector Appeal - Fair treatment decision

DELIVERED ON:

20 March 2023

HEARD AT:

On the papers

MEMBER:

McLennan IC

ORDER:

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 appellant provided medical certificate from General Practitioner – where respondent granted appellant temporary and provisional exemption – where respondent required appellant to submit specialist medical information for a further extension – where appellant did not provide any further medical information – where appellant sought to rely on original certificate from General Practitioner – where respondent refused appellant's further 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 – 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

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

CASES:

Gilmour v Waddell & Ors [2019] QSC 170

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

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

Reasons for Decision

Introduction

  1. [1]
    Ms Deborah Sher (the Appellant) is employed by Queensland Health, State of Queensland (the Respondent) as an AO4 Administration Officer at Breastscreen Qld within the Gold Coast Hospital and Health Service (GCHHS).
  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:

8.1 Existing employees currently undertaking work or moving not a role undertaking work listed in a cohort of Table 1, must:

  1. have received at least the first dose of a COVID-19 vaccine by 30 September 2021; and
  2. have received the second dose of a COVID-19 vaccine by 31 October 2021.

An existing employee must provide to their line manager or upload into the designated system:

  1. 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.
  2. 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.

…

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 26 April 2022, GCHHS issued the Appellant a show cause notice inviting her to respond to the allegation that she had not provided evidence confirming she had received the prescribed number of doses of a COVID-19 vaccine or applied for an exemption to the requirements of Directive 12/21.
  1. [6]
    On 4 May 2022, Mr Chris Hackett, Industrial Officer, Together Queensland on behalf of the Appellant, advised that the Appellant had applied for an exemption. On 5 May 2022, GCHHS asked Mr Hackett to provide the email in which the Appellant submitted her exemption application. On 9 May 2022, Mr Hackett replied confirming there may have been a technical error and that the Appellant did not attach her exemption application in the original email.
  1. [7]
    On 10 May 2022, GCHHS advised the Appellant they would place her disciplinary matter in abeyance until her exemption application was considered. GCHHS further advised the Appellant had not supplied sufficient information for the COVID-19 Exemption Panel (the Panel) and Dr Wellwood as the delegate to assess the exemption application. GCHHS provided the Appellant until 15 May 2022 to provide further medical information.
  1. [8]
    On 12 May 2022, Mr Hackett provided an undated letter from Dr Rachel Adendorff, General Practitioner outlining the Appellant's medical conditions.
  1. [9]
    On 1 June 2022, Dr Wellwood advised the Appellant that her exemption application had been considered and she was approved a provisional and temporary exemption until 31 July 2022. Within that correspondence, Dr Wellwood stated that should a further extension to the Appellant's exemption  be required, the Appellant would need to "submit specialist medical information for the [Panel] to consider".
  1. [10]
    On 15 June 2022, as a result of the Appellant's provisional and temporary exemption, GCHHS wrote to the Appellant formally extending the discipline abeyance period until 1 August 2022.
  1. [11]
    On 1 August 2022, GCHHS wrote to Mr Hackett seeking information as to whether the Appellant intended on submitting any additional/new specialist medication information for the Panel to consider. On 2 August 2022, Mr Hackett replied advising the Appellant requested her existing application be resubmitted for the Panel to consider.
  1. [12]
    On 4 October 2022, Dr Wren wrote to the Appellant advising that the request to reconsider her initial request for an exemption had been denied on the basis that no new medical information was provided. On the same day, Mr Hackett requested an internal review of Dr Wren's decision.
  1. [13]
    On 9 January 2023, Mr Grant Brown (the decision-maker) wrote to the Appellant upholding the decision to decline her application for an exemption (the Exemption Decision). 
  1. [14]
    On 16 January 2023, the Appellant filed an Appeal Notice against the Exemption Decision in the Industrial Registry.

Jurisdiction

The decision subject of this appeal

  1. [15]
    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
  2. (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. [16]
    On 16 January 2023, 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. [17]
    Section 131 of the PS Act[2] identifies the categories of decisions against which an appeal may be made. A "fair treatment decision", i.e., a decision which the Appellant contends is unfair and unreasonable 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 9 January 2023. The Appeal Notice was filed on 16 January 2023. 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 decision-maker 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):[3]

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 23 January 2023, 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:

10.1  Where an existing employee is unable to be vaccinated they are required to complete an exemption application form.

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.

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]
    The Appellant applied for an exemption, on the basis of "a recognised medical contraindication to the COVID-19 vaccine". The request included a medical certificate from Dr Rachel Adendorff stating:

This letter is to confirm granting of 12 months of Covid vaccine exemption for the patient mentioned above, afterwhich she will be reviewed for covid vaccine suitability.

She is currently going through an acute flare up of her Systemic Lupus condition, therefore should be exempt from any covid-19 vaccines.

She also has a history of PTSD and due to current acute medical state she is at risk deterioration in mental state.

As per the reasons mentioned above she has been granted an exemption for 12 months from; Pfizer, Moderna, AstraZeneca and Novovax until she is stabilised.

Please find her medical history below

03/12/2021 Hypothyroidism

03/12/2021 Sjogren's syndrome

03/12/2021 Systemic Lupus Erythematosus

01/04/2022 PTSD 

The provisional and temporary approval

  1. [33]
    In correspondence dated 1 June 2022, Dr Jeremy Wellwood of GCHHS advised the Appellant her request for an exemption based upon a medical contraindication had been provisionally and temporarily approved until 31 July 2022. Dr Wellwood advised, "Should you require a further extension to this exemption period, you will be required to submit specialist medical information for the Committee to consider."
  1. [34]
    In correspondence dated 15 June 2022, Mr Grant Brown of GCHHS reiterated that the Appellant had been granted "a provisional and time limited exemption until 31 July 2022" and advised the Appellant she has until 1 August 2022 to provide further information regarding her COVID-19 vaccination status. Mr Brown continued:

This information will assist me in better understanding your COVID-19 vaccination status and personal circumstances at the end of your provisional and time limited exemption. Should this information not be provided within the required timeframe, I will consider the next steps based on the information that is available to me at the end of your exemption period.

The further request

  1. [35]
    On 2 August 2022, Mr Hackett advised GCHHS that the Appellant wishes to resubmit her existing application for the Panel to consider as well as the following points for consideration:
  • the Appellant has submitted evidence of her medical contraindication in excess of what is required by Directive 12/21 which does not specify that specialist medical evidence is required to apply for an exemption;
  • the Appellant has a current recognised medical contraindication on the Australian Immunisation Register;
  • specialist medical evidence is not required to register a recognised medical contraindication on the Australian Immunisation Register;
  • the Appellant has submitted evidence of her medical contraindication in excess of what is required by Workers in a healthcare setting (COVID-19 Vaccination Requirements) Direction (No. 4) (Direction No. 4) which provides:

Medical contraindication means a person has a current

  1. COVID-19 vaccine medical exemption recorded on the Australian Immunisation Register; or
  1. Australian Immunisation Register (AIR) immunisation medical exemptions form completed and signed by an eligible health professional for the COVID-19 vaccine.
  • requiring the Appellant to seek specialist medical evidence whilst she is on leave from the workplace has an unreasonable financial impact on her;
  • the application form does not appear to reflect any wording of Directive 12/21 or Direction No. 4 - the application form appears to require a higher threshold of evidence; and
  • a requirement to provide medical evidence in excess of what is required may unreasonably limit the Appellant's right to privacy and reputation under s 25 of the Human Rights Act 2019 (Qld).

The original refusal

  1. [36]
    On 4 October 2022, Dr Kellie Wren of GCHHS advised the Appellant of the decision to deny her request to reconsider her initial request for an exemption. Dr Wren advised:
  • the Committee has considered the request based on the criteria in line with the Directive/Policy;
  • the Committee has recommended, as noted in the terms outlined in the first exemption, an extended medical exemption will not be granted without a vaccine specialist opinion;
  • the Appellant's submission did not include any new information regarding her medical condition for the Committee to consider;
  • the previous exemption outcome requested the Appellant provide further medical information, which the Appellant failed to provide;
  • the Committee considered the current Australian Technical Advisory Group on Immunisation (ATAGI) advice, and as the Appellant is considered immunocompromised due to her medical conditions, it is recommended that she receive the COVID-19 vaccine because of her increased risk of severe illness with COVID-19; and
  • she is satisfied that the decision is compatible with human rights as although it engages or limits a number of human rights, those limits 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.

The Appellant's response

  1. [37]
    On 4 October 2022, Mr Hackett on behalf the Appellant sought a review of Dr Wren's decision for the following reasons:
  • Dr Wren appears to provide the Appellant with personal medical advice despite not being her treating medical practitioner;
  • the decision-maker has failed to comply with s 27B of the Acts Interpretation Act 1954 (the AIA);
  • the decision-maker has not considered the Appellant's right to privacy and reputation despite the Appellant identifying it as a concern through her submissions to the Panel; and
  • Mr Hackett reiterated submissions previously made to GCHHS.

The Exemption Decision

  1. [38]
    Although the Appellant sought an internal review of Dr Wren's decision dated 4 October 2022, it appears the decision-maker conducted a review of Dr Wellwood's decision dated 1 June 2022. I have formed that view because in addressing each of the Appellant's concerns raised on 4 October 2022 in response to Dr Wren's decision, the decision-maker refers to Dr Wellwood's decision. Peculiarly, in her appeal and submissions, the Appellant also refers to the Decision as being a response to "a request for an internal review of a decision made by Dr Jeremy Wellwood… dated 1 July 2022."[4] Therefore, it does not appear that the Appellant takes issue with this point and rather proceeds to request a review of the "Internal Review Decision",[5] being the correspondence dated 9 January 2023 from Mr Grant Brown, the decision-maker.
  1. [39]
    Within the Exemption Decision, the decision-maker refutes each of the contentions made by the Appellant, which I will address as part of my consideration below. Ultimately, the decision-maker determined to uphold the declination of the Appellant's COVID-19 exemption.

The appeal

  1. [40]
    The Appellant contends the Exemption Decision is unfair and unreasonable for the following reasons:
  • the decision-maker did not adequately respond to the claim that the decision under review appears to provide personal medical advice, despite the author not being the Appellant's medical practitioner;
  • the decision-maker failed to adequately consider s 27B of the AIA;
  • the decision-maker failed to adequately consider the medical evidence presented by the Appellant from her General Practitioner; and
  • the decision-maker does not adequately consider that a requirement for the Appellant to provide medical evidence in excess of what is required may unreasonably limit her human right to privacy and reputation pursuant to s 25 of the Human Rights Act 2019 (Qld).

Consideration

Medical advice

  1. [41]
    The Appellant refers to the following extract from Dr Wells' decision:

Additionally, the Committee considered the current Australian Technical Advisory Group on Immunication [sic] (ATAGI) advice, and as you are considered immunocompromosed (sic) due to your medical conditions, it is recommended that you receive the COVID-19 vaccine because of your increased risk of severe illness with COVID-19.

  1. [42]
    The Appellant contends the extract at [41] provides specific advice to the Appellant based on her medical conditions despite that contradicting advice received from the Appellant's own doctor.
  1. [43]
    The difficulty with this appeal ground is that the Appellant has accepted that the decision-maker reviewed Dr Wellwood's decision (not Dr Wells' decision in which the abovementioned comment was made). Therefore, the decision-maker did not take into consideration the comments made by Dr Wells as extracted at [41] above.
  1. [44]
    Nevertheless, although the comments may have been worded with more caution, the crux of the Exemption Decision was to determine whether or not the Appellant should be granted an exemption. The comments made by Dr Wells were peripheral to the consideration that led to the Exemption Decision. Although caution should be exercised in the future, I do not accept that the comments render the Exemption Decision unfair or unreasonable.

Section 27B of the AIA

  1. [45]
    The Appellant argues that the decision-maker failed to adequately consider s 27B of the AIA which provides:

If an Act requires a tribunal, authority, body or person making a decision to give written reasons for the decision (whether the expression 'reasons', 'grounds' or another expression is used), the instrument giving the reasons must also—

  1. (a)
    set out the findings on material questions of fact; and
  1. (b)
    refer to the evidence or other material on which those findings were based.
  1. [46]
    The Respondent points out that although s 27B of the AIA is applicable to Directive 12/21 as a statutory instrument issued pursuant to s 51A of the Hospital and Health Boards Act 2011 (Qld) - cl 10 of Directive 12/21 does not require the delegate making an exemption decision, or an internal review decision, to give written reasons for the decision. Therefore, the Respondent contends that the alleged failure of the delegate to make "reference to the evidence they have used to arrive at (their) conclusion" is not a breach of s 27B of the AIA. The Appellant did not file written submissions in reply and therefore did not rebut this argument. I accept the Respondent's position in this regard.
  1. [47]
    Even if I am wrong on that point, I make the following remarks.
  1. [48]
    Dr Wellwood was tasked with considering whether or not to grant the Appellant an exemption. The key question of fact was whether or not the Appellant had a recognised medical contraindication to the COVID-19 vaccine. Upon review of Dr Wellwood's decision, I note he refers to the Appellant's request for an exemption (which included evidence provided by the Appellant's General Practitioner). Dr Wellwood stated that, based upon that request, the Appellant's exemption request was provisionally and temporarily approved until 31 July 2022.
  1. [49]
    Dr Wellwood stated that, "Should you require a further extension to this exemption period, you will be required to submit specialist medical information for the Committee to consider." Although I accept Dr Wellwood could have been clearer in his wording, it is apparent he is conveying that, although the evidence provided by the Appellant's General Practitioner is acceptable for the purpose of granting a temporary exemption, a specialist's certification will be required for a further extension.
  1. [50]
    I find that Dr Wellwood reasonably set out his finding that the Appellant ought be granted a temporary and provisional exemption on the basis of her request at that time (which included a medical certificate from her General Practitioner). Dr Wellwood stated that specialist medical information would be required for a further extension, thereby indicating that a medical certificate from the General Practitioner would not suffice in future. Although it is arguable that Dr Wellwood's decision could have been worded more clearly, I do not accept that it contravenes s 27B of the AIA.
  1. [51]
    The Appellant also refers to the following extract from the Exemption Decision:

I note the form specifically states a medical certificate is required to be provided from a "specialist medical practitioner". The intention of the form stating "specialist" was to excuse General Practitioners. While I acknowledge General Practitioners do hold specialist registration with the Australian Health Practitioners Regulation Agency (AHPRA), it was never the intention of the form or the process to allow staff to provide medical information from a General Practitioner. This is in recognition of the significant knowledge, skills and abilities held by Specialists, such as Immunologists.

  1. [52]
    With reference to the paragraph extracted at [51], the Appellant contends the Department is relying upon evidence that they do not present as part of their Decision. I disagree. The decision-maker's statement is a form of submission in support of the evidence - that the form states "specialist". The decision-maker provided his reasoning for why the Respondent's position is that a "Specialist" excludes a General Practitioner. It is both fair and reasonable for the Department to present the Appellant with its views on the intention of the wording.

Medical contraindication

  1. [53]
    The Appellant refers to the paragraph extracted at [51] above and argues that because the term "specialist medical practitioner" is not defined by the Policy, Directive 12/21 or application form - the use of the words should align with the definition used by AHPRA which lists "Specialist general practitioner" as a specialist title. The Appellant also refers to having provided her current Australian Immunisation Register Certificate which states, "This individual has a medical contraindication to COVID-19 vaccines" valid from 6 April 2022 to 6 April 2023.
  1. [54]
    Clause 10 of Directive 12/21 allows employees to apply for an exemption, providing:

10.1  Where an existing employee is unable to be vaccinated they are required to complete an exemption application form.

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.

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.

  1. [55]
    Clause 10.1 provides a link to the "exemption application form" which states that:

An employee is required to provide a medical certificate from their treating specialist medical practitioner certifying:

  • that the employee is unable to receive any COVID-19 vaccination because they have a recognised medical contraindication to the vaccine
  • whether the medical contraindication will permanently or temporarily prevent COVID-19 vaccination
  • if the medical contraindication is temporary in nature, when the employee may be able to receive the COVID-19 vaccination.
  1. [56]
    The form also provides:

An employee will be considered to have a medical contraindication for the purposes of applying for an exemption where they are unable to be vaccinated due to a recognised medical contraindication to the COVID-19 vaccine as outlined in a letter from their treating specialist medical practitioner.

  1. [57]
    The decision-maker emphasised that the intention was to excuse General Practitioners from providing medical information in recognition of the significant knowledge, skills and abilities held by Specialists, such as Immunologists. Dr Wellwood initially accepted medical advice from the Appellant's General Practitioner on the provision that the exemption granted would be temporary and the Appellant would be provided with further time to obtain specialist medical advice. It was strongly inferred in Dr Wellwood's correspondence that specialist advice was deemed different to advice from the Appellant's General Practitioner.
  1. [58]
    I accept the Respondent's argument that the terminology is intended to be used in "a lay sense" in that the treating specialist medical practitioner be a specialist in the field of medicine relevant to the medical contraindication. The Respondent provides the example of a Neurologist for a neurological condition. It rings true that, had the advice of General Practitioners been acceptable, the form would not have included the wording "specialist medical practitioner" but rather would have simply stated "medical practitioner". If the Appellant held doubts about what this further requirement entailed, she ought to have raised that prior to the deadline.
  1. [59]
    The Respondent rightly points out that, in any event, the certificate or advice from a treating specialist medical practitioner does not guarantee an exemption will be granted. The Appellant was put on notice that further evidence would be required if she sought an extension of her temporary exemption, however she continued to rely upon what had already been provided.
  1. [60]
    Furthermore, the certificate relied upon by the Appellant is undated and refers to the Appellant "currently going through an acute flare up of her Systemic Lupus condition". The Respondent contends that as the medical certificate was provided on 12 May 2022 to GCHHS, this advice is now in excess of seven months old, at a minimum, and GCHHS required updated medical advice for consideration in determining if the Appellant is eligible for an ongoing exemption.
  1. [61]
    I accept that the Exemption Decision was fair and reasonable having regard to the whole of the evidence provided by the Appellant in support of her application.
  1. [62]
    The Appellant further submits that it is unfair and unreasonable that she be expected to incur the significant cost of obtaining further medical evidence. However, the decision-maker's comments below certainly ring true:

Given you are attempting to claim your medical conditions are sufficiently serious enough to warrant an exemption from all approved COVID-19 vaccines, I do no believe it to be unreasonable for the Health Service to require medical information from a specialist who specialises in an area of medicine relevant to your medical conditions.

  1. [63]
    Although I acknowledge the significant cost that may be incurred by the Appellant, I do not accept that the financial impact is unreasonable in circumstances where the request is the Appellant's personal decision.

Human rights

  1. [64]
    The Appellant contends that requiring her to obtain further medical evidence poses a significant restriction to her right to privacy and reputation and the Department could impose the lesser restrictive option of granting the Appellant a temporary exemption. Further, the Appellant submits she has not attended the workplace on health grounds via sick leave for an extended period of time and would need to participate in a deliberate and well-placed return to work plan prior to physically returning to her workplace. The Appellant argues that she therefore does not present any risk if she were to receive a temporary vaccination exemption.
  1. [65]
    The Respondent correctly points out that an Australian Immunisation Register certificate is not an exemption for the purpose of Directive 12/21 and on its own is not accepted by Queensland Health as a reasonable excuse for failing to comply with Directive 12/21. Further, the Workers in a healthcare setting (COVID-19 Vaccination Requirements) Direction (No. 4) contained separate and independent requirements but regardless has now been revoked.
  1. [66]
    The decision-maker had regard to the Appellant's human rights, providing:

I have had regard to the intention of the Directive and the Policy, 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 Directive and the Policy contemplates the high degree of risk to public health associated with work performed in healthcare settings and to ensure Queensland Health can provide a safe environment for both employees and patients. On balance, I consider there is no less restrictive means other than vaccination which would sufficiently ensure the safety of yourself, other staff members and patients. With this in mind, I concur with Dr Wellwood's assessment and limitation of your human rights.

  1. [67]
    In Mocnik & Others v State of Queensland (Queensland Health),[6] Vice President O'Connor concluded (citations omitted):

[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".

[62] In respect of what human rights are alleged to have been breached it is submitted:

... 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. 

[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.

[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".

…

[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.

[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.

[72] The evidence of Professor Damon Eisen and Associate Professor Paul Griffin was in my view cogent and persuasive.

[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."

[74] I accept that HED 12/21 was an important health measure introduced to provide protection to the community from serious and widespread disease.

[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.

[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. [68]
    I adopt Vice President O'Connor's consideration herein.
  1. [69]
    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. [70]
    I 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

Conclusion

  1. [71]
    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] Equivalent provision in the Public Service Act 2008 (Qld) was s 194.

[3] [2019] QSC 170, [207]-[210], citing Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, [63]-[76].

[4] Reference to 1 July 2022 appears to be an error which should instead ready 1 June 2022.

[5] Herein referred to as the Exemption Decision.

[6] [2023] QIRC 058.

Close

Editorial Notes

  • Published Case Name:

    Sher v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Sher v State of Queensland (Queensland Health)

  • MNC:

    [2023] QIRC 88

  • 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
Gilmour v Waddell [2019] QSC 170
2 citations
Jump To
Cite 1 - [2019] QSC 170
Cite 2 - [2019] QSC 170
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
2 citations
Jump To
Cite 1 - [2023] QIRC 58
Cite 2 - [2023] QIRC 58

Cases Citing

Case NameFull CitationFrequency
Glen v State of Queensland (Queensland Ambulance Service) [2023] QIRC 3581 citation
1

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