Alzino v State of Queensland (Queensland Health)
[2024] QIRC 24
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- Unreported Judgment
- Alzino v State of Queensland (Queensland Health)[2024] QIRC 24
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Alzino v State of Queensland (Queensland Health)[2024] QIRC 24
Alzino v State of Queensland (Queensland Health)[2024] QIRC 24
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Alzino v State of Queensland (Queensland Health) [2024] QIRC 24 |
PARTIES: | Alzino, Tia (Appellant) v State of Queensland (Queensland Health) (Respondent) |
CASE NO: | PSA/2022/665 |
PROCEEDING: | Public Service Appeal - Appeal against a fair treatment decision |
DELIVERED ON: | 8 February 2024 |
MEMBER: | O'Connor VP |
HEARD AT: | On the papers |
ORDER: |
|
CATCHWORDS: | PUBLIC SERVICE APPEAL – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – where appeal against a fair treatment decision – where appellant is employed by the State of Queensland (Queensland Health) as a Medical Technician – where Health Employment Directive 12/21 Employee COVID-19 vaccination requirements required the appellant to receive the first dose of a COVID-19 vaccine by 30 September 2021 and the second dose of a COVID-19 vaccine by 31 October 2021 – where appellant did not comply – where appellant applied for an exemption on 30 September 2021 – where exemption was denied on 16 December 2021 – where appellant requested internal review of decision to deny her exemption – where internal review confirmed the decision to deny her exemption on 16 June 2022 – where appellant claims lack of consultation – whether risk assessment undertaken – where appellant concerned about safety and efficacy of vaccinations – where matters raised have already been heard and determined – whether the commission reasonably believes the appellant has an arguable case – whether the appeal should be heard |
LEGISLATION AND OTHER INSTRUMENTS: | Industrial Relations Act 2016 (Qld), s 562A Hospital and Health Boards Act 2011 (Qld), s 51B Human Rights Act 2019 Work Health and Safety Act 2011 (Qld) Health Employment Directive 12/21 Employee COVID-19 vaccination requirements Work health and safety consultation, cooperation and coordination Code of Practice 2021 |
CASES: | Gundrum v State of Queensland (Queensland Health) [2022] QIRC 226 Kathryn Roy-Chowdhury v The Ivanhoe Girls’ Grammar School [2022] FWC 849 Mocnik & Ors v State of Queensland (Queensland Health) [2023] QIRC 058 Stevens v Epworth Foundation [2022] FWC 593 |
Reasons for Decision
Introduction
[1] This is a Public Service Appeal where the parties were required to file submissions addressing why the Queensland Industrial Relations Commission ('the Commission') may decide not to hear the appeal pursuant to s 562A of the Industrial Relations Act 2016 ('IR Act').
- [2]The Appellant contends she has an arguable case and, in the circumstances, where not all matters raised have been heard and determined, she requests that the Commission hear her appeal.[1]
- [3]The Respondent submits the Commission should exercise its discretion under s 562A(3)(b) of the IR Act on the basis it would not be in the public interest as the matters raised by the Appellant have been heard and determined or are otherwise misconceived or lacking in substance.[2]
Relevant legislation
- [4]Section 562A of the IR Act provides:
562A Commission may decide not to hear particular public service appeals
- …
- …
- The commission may decide it will not hear a public service appeal against a decision if -
- the appellant has made an application to a court or tribunal relating to the decision, whether or not the application has been fully decided; or
- the commission reasonably believes, after asking the appellant to establish by oral or written submissions that the appellant has an arguable case for the appeal, that the appeal -
- is frivolous or vexatious; or
- is misconceived or lacks substance; or
- should not be heard for another compelling reason.
Background
- [5]Ms Tia Alzino ('the Appellant') is employed by the State of Queensland (Queensland Health) ('the Respondent') as a Medical Technician, Haematology/Blood Bank, Prevention Division, Pathology Queensland at the Gold Coast University Hospital.
- [6]On 11 September 2021, Health Employment Directive 12/21 Employee COVID-19 vaccination requirements ('the Directive') came into effect. The Directive provided inter alia that employees must have received:
- the first dose of a COVID-19 vaccine by 30 September 2021; and
- the second dose of a COVID-19 vaccine by 31 October 2021.
- [7]As a Medical Technician the Appellant was subject to the mandatory vaccination requirements.
- [8]On 30 September 2021 the Appellant applied for an exemption on the grounds of 'other exceptional circumstances'. In support of her exemption application, the Appellant submitted a generic letter prepared by the Nurses' Professional Association of Queensland (also known as Red Union).[3]
- [9]On 16 December 2021, Professor Keith McNeil, Acting Deputy Director-General and Chief Medical Office, Prevention Division and Chief Clinical Information Officer, advised the Appellant her exemption application had been denied. Following an internal review, Mr Damien Green advised the Appellant the decision of Professor McNeil to refuse her exemption was confirmed.[4]
- [10]On 11 July 2022 the Appellant appealed the decision to not approve her application for an exemption.
Mention
- [11]At a Mention of the matter on 24 April 2023, the Appellant stated:
MS ALZINO: - - - speaking. So I'm a medical laboratory technician - - -
HIS HONOUR: Yes.
MS ALZINO: - - - and I'm here because I want to get back to the job I love. Working in pathology and helping clinicians provide the best care possible through an evidence-based approach using pathology tests to assist them. I know my appeal listed my complaints of no risk assessment being performed, of the lack of informed consent, and not being assessed on an individual basis in regards to my needs of a vaccine, so I'll just add what I think are exceptional circumstances as to why I'm not actually in breach of the directive. I would be on board with the vaccine mandate if it actually worked and the science was there, but I believe in an evidence-based approach which is how the Australia medical field operates anyway, and even Pfizer has come out and said they never tested for transmission.
I've actually had COVID, like most of Australia at this point, and therefore now have natural immunity. I wrote to my employer when I tested positive for COVID and sought to return to work with a three-month exemption. At the time, the Queensland Government said an employer could have a three-month exemption from being vaccinated post-COVID infection; however, Queensland Health still did not allow me to return to work. In other cases of vaccinations such as varicella, or chickenpox, immunity is acknowledged as either from vaccination or natural immunity. I don't understand why I cannot return to work when I have natural immunity. Even in other countries, such as Switzerland, vaccine mandates have been dropped and the authorities acknowledge that we are at a living with COVID stage and people have either taken a vaccine or have acquired natural immunity.
Another reason my situation is exceptional is because of where my workplace is situated. I am in a separate building to the hospital that can be accessed by swipe card only. I have no patient contact. I am in the lab and wear PPE as my normal work attire, and this was acceptable for the first year and a-half during the height of the pandemic when no one had been vaccinated. In conclusion, I believe I do not pose any risks or threats to my colleagues or patients, and I'd just really love to get back to doing the job I love.
HIS HONOUR: Yes. See, a lot of those things have already been by other cases before the Commission, that's the problem.
MS ALZINO: Okay.
HIS HONOUR: So what you've raised isn't regarded as exceptional circumstances. You've just elected not to have it for the reasons you've expressed, but they're not exceptional. The evidence is - and, you know, I've sat on a lot of these matters and heard them, more recent in a case called Mocnik. There's no natural immunity because the variant, it changes, it modifies, like all viruses do, and so there's no such thing as a natural immunity. Vaccination combined with the - a combination of personal protective equipment that - washing your hands, all of those sorts of things, are the best way of stopping, you know, spread and cross-infection and the like. It's not just about patients, it's about co-workers and all that.
So the director general has a responsibility under the Work Health and Safety Act to ensure that your co-workers are safe, that you're safe, so there's a whole combination of things. It's just not a simple thing about individuals; it's more of a - to protect the entire workforce, patients that you might come in contact with, your co-workers. So they're the things that will exercise the mind of a Commission, all right? But the things you've outlined, unless there's something else, those sorts of issues have already been determined by the Commission.
MS ALZINO: Okay.
HIS HONOUR: So if you don't accept the direction of the director general, which is a lawful direction, the courts have held that, then it's a difficulty for you. So you need to think about - naturally, take your own advice - medical advice. But you need to think about - if you want to get back to work, there's a, you know, the simple avenue open to you about complying with the direction. And the direction is still a requirement, I think, of Queensland Health, is it not? Yes. Okay. So there wouldn't be any chance of getting back. It doesn't make much difference what happens in other jurisdictions, unfortunately for you. We've just got to deal with the law as it is here in this state.
MS ALZINO: Yeah.
HIS HONOUR: All right. So that's the things that will confront your argument when they're brought, so you need to give some thought about that, all right?
MS ALZINO: Okay. Thank you.
HIS HONOUR: And then I appreciate you wanting to get back to work. It's something that you obviously enjoy doing, so just give that some thought, all right? Okay.
MS ALZINO: Thank you.
HIS HONOUR: Anything else you wanted to raise in the meantime? Do you want to continue with this, or do you want me to just put this on hold so you've got some chances to think about it.
MS ALZINO: If you could put that on hold, that would be great.
HIS HONOUR: Okay. So we'll adjourn this one and we'll wait to hear back from you. If you let the industrial registry know - - -
MS ALZINO: Okay.
HIS HONOUR: - - - then they'll be able to tell me, okay?
MS ALZINO: All right.
HIS HONOUR: So we'll adjourn this one without having it go through all the rigmarole of having the matter hear[d], all right?[5]
- [12]On 25 July 2023 directions were issued for the Respondent to provide submissions by 8 August 2023 as to why the Commission should decide not to hear the appeal pursuant to s 562A(3) of the IR Act. The Appellant was required to file submissions in response as to why she has an arguable case by 22 August 2023.
Appellant's submissions
- [13]The Appellant contends she has an arguable case in favour of hearing the appeal. Notably that certain aspects of the Work Health and Safety Act 2011 ('the WHS Act') have not been adequately addressed by the Respondent or in Mocnik & Ors v State of Queensland (Queensland Health).[6] The following reasons in support of her argument are offered:
- absence of risk assessment;
- assumption of non-compliance;
- impact on valid consent;
- lack of transparency;
- non-compliance with WHS obligations;
- exceptional circumstances and human rights consideration;
- unreasonable and unlawful decision; and
- HED12/21 is under review this month.[7]
- [14]The Appellant's written submissions traverse a number of issues. However, the Appellant expresses a particular concern as to the safety and efficacy of the COVID-19 vaccination and the long-term effects of these vaccines.
- [15]Underpinning the Appellant's submission is the assertion that the Respondent's refusal to furnish a 'tailored' risk assessment leads to a number of conclusions. In short, it is submitted that the failure to provide a risk assessment raises questions about the Respondent's compliance with its work, health and safety obligations; was unreasonable and potentially unlawful; a hesitancy to comply with the directive stems from an inability to provide informed consent due to a lack of access to information and a lack of transparency.
- [16]Further, in circumstances where not all matters raised have been heard and determined, the Appellant requests that the Commission hear her appeal.[8]
Respondent's submissions
- [17]The Respondent contends that the matters raised by the Appellant in her appeal have been considered and determined by the Commission in multiple public service appeals and in the collective reinstatement matter of Mocnik.[9] The Respondent highlights that none of the matters raised by the Appellant have been found in favour of employees or former employees.[10]
- [18]HED 12/21 is a lawful and reasonable condition of employment, and this has been confirmed in the decision of Mocnik.[11] While the Appellant is employed by the Respondent, she is obliged to comply with reasonable and lawful directions issued to her.
- [19]Contrary to the Appellant's submissions in respect of a lack of consultation, the Respondent submits that the decision of Mocnik confirmed there had been no breach of the WHS Act established with respect to consultation.
- [20]In response to the Appellant's concerns as to the safety and efficacy of the COVID-19 vaccines, the Respondent was not required to provide assurances concerning the safety or efficacy of the COVID-19 vaccines.[12]
- [21]Finally, there has been no breach of the Human Rights Act 2019 ('the HR Act') as the requirement of HED 12/21 to receive two doses was found to be not inconsistent with the HR Act.
Consideration
- [22]The Appellant's submissions traverse familiar propositions that have been considered and dismissed by the Commission on multiple occasions.
- [23]Despite an overwhelming body of law being brought to the Appellant's attention by both the Respondent and the Commission, the Appellant continues to question vaccine safety and the lawfulness of the directive. Moreover, and fatal to the Appellant's arguments is the fact that the Respondent was not required to provide assurances concerning the safety or efficacy of the COVID-19 vaccinations.
- [24]Clause 6 of HED 12/12 identifies the potential risk posed to relevant employees, and the risk profile of those employees as follows:
The COVID-19 virus has been shown to disproportionately affect healthcare workers and health support staff and poses a significant risk to Queensland Health patients, and the broader community.
In recognition of the risks posed by the virus, as well as workplace health and safety obligations incumbent upon both the organisation and employees, this HED requires health service employees who are identified as being in high risk groups to be vaccinated against COVID-19.
Prospective and existing health service employees subject to these requirements have been identified based on the following risk profile:
- They are working in an area with suspected or confirmed COVID-19 patients or an area that a COVID-19 patient may enter.
- They are coming into direct or indirect contact with people who work in an area with COVID-19 patients or an area that a suspected or actual COVID-19 patient may enter.
- They are unable to observe public health requirements (e.g. physical distancing, working in areas of high population density, rapid donning/doffing of personal protective equipment (PPE) in emergent situations).
- They have the potential to expose patients, clients, other staff or the broader community to the virus (e.g. occupying shared spaces such as lifts, cafeterias, car parks, with people working with suspected or actual COVID-19 patients).
- [25]
[38] An obligation for a duty holder (like the Health Service) to undertake a risk assessment under the Work Health and Safety Act 2011 (Qld) does not, of itself, create a right by an employee to demand a documented copy of that risk assessment. In any event, Covid vaccine safety has been evaluated and confirmed as safe by the Australian Technical Advisory Group on Immunisation ('ATAGI') and as such there is no reasonable basis for Mr Gundrum to demand a risk assessment or complain he did not receive one. The approval of vaccines for use by a federal authority such as ATAGI ought to assuage any concerns.[14]
- [26]The Appellant's argument in relation to an absence of a 'tailored' risk assessment and non‑compliance with WHS obligations were also dealt with in Mocnik.[15] There was no obligation imposed on the Respondent under the WHS Act or the Work health and safety consultation, cooperation and coordination Code of Practice 2021 to provide a risk assessment for each business unit to individual employees on request following implementation of the Directive.[16]
- [27]The decision maker also considered the effect of the decision on the Appellant's human rights and provided as follows:
The Directive and Public health directions do make vaccinations compulsory for certain workers and others in specific circumstances to be vaccinated to protect the community during the pandemic. I acknowledge that my decision engages or limits a number of your human rights, including your right to equality and non-discrimination and your right not to receive medical treatment without consent. I am satisfied that those limits on human rights are justified by the need to protect the lives of employees, patients and the community they serve, against the COVID-19 pandemic.
I, therefore, consider that Queensland Health's position in relation to the impacts of the decision upon human rights, to the extent that these are impacted, are reasonably justified.[17]
- [28]In Mocnik,[18] the Commission found that the Directive was not inconsistent with the HR Act within the meaning of s 51B of the Hospital and Health Boards Act 2011 (Qld). The Commission wrote:
[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.
…
[73] Under the HHB Act, a 'health service' is defined as a 'service for maintaining, improving, restoring, or managing people's health and wellbeing'.[35] 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."[36]
[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.
- [29]HED 12/12 is objectively reasonable. As is evident from cl 6 of the Directive, the COVID-19 virus has been shown to disproportionately affect health care workers and health support staff and pose a significant risk to Queensland Health patients and the broader community. In such circumstances, it is entirely reasonable, and necessary, that having regard to the identified risks, coupled with the workplace health and safety obligations incumbent upon the Department and employees, that the Department required employees in high-risk groups to be vaccinated against COVID-19.
- [30]Finally, any reference by the Appellant to recent developments is irrelevant as this appeal relates to a review of a decision originally made in June 2022. The fairness or otherwise of the decision can only be evaluated in the context of the prevailing circumstances at that time.
- [31]The Appellant has failed to provide any argument in support of her appeal. She has referred to advice and international data about the safety and efficacy of COVID-19 vaccinations which are not relevant to this appeal and are inconsistent with mainstream scientific and medical opinion, and unsupported by the case law.
- [32]In the circumstances, the Appellant has not raised any arguments in her appeal that have convinced the Commission not to exercise its discretion under s 562A of the IR Act to not hear the appeal.
Orders
- [33]The Commission orders accordingly:
- Pursuant to s 562A(3) of the Industrial Relations Act 2016 (Qld) the appeal will not be heard.
Footnotes
[1] Appellant's submissions filed 22 August 2023, [20], [33].
[2] Respondent's submissions filed 08 August 2023, [2].
[3] Respondent's submissions filed 8 August 2023, [6].
[4] Ibid, [7], [8].
[5] TR1-9, L11-TR1-11, L17.
[6] [2023] QIRC 058, (Mocnik).
[7] Appellant's submissions filed 22 August 2023, [20]-[29].
[8] Appellant's submissions filed 22 August 2023, [33],
[9] [2023] QIRC 058.
[10] Respondent's submissions filed 8 August 2023, [10].
[11] [2023] QIRC 058.
[12] Stevens v Epworth Foundation [2022] FWC 593, [35].
[13] [2022] QIRC 226.
[14] See Kathryn Roy-Chowdhury v The Ivanhoe Girls’ Grammar School [2022] FWC 849 at [103].
[15] [2023] QIRC 058, [95].
[16] [2023] QIRC 058, [82], [111].
[17] Letter of Damian Green, Deputy Director-General, eHealth Queensland, Chief Information Officer, Queensland Health to Appellant dated 16 June 2022, p 4.
[18] [2023] QIRC 058.