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

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Domrow v State of Queensland (Queensland Treasury) [2022] QIRC 331 PARTIES: Domrow, Nathan (Appellant) v State of Queensland (Queensland Treasury) (Respondent) CASE NO.: PSA/2022/670 PROCEEDING: Public Service Appeal DELIVERED ON: 24 August 2022 MEMBER: Power IC HEARD AT: On the papers ORDER: Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed. CATCHWORDS: PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – Public Service Appeal – where the appellant applied for a delay in complying with the vaccination requirements of the COVID-19 vaccination requirements for Treasury employees – where application for delay refused – where appellant sought an internal review – where internal review confirmed the refusal of the appellant's delay application – review of the internal review decision – internal review decision fair and reasonable – appeal dismissed LEGISLATION: Anti-Discrimination Act 1991 (Qld), s 7 Human Rights Act 2019 (Qld), s 15 Industrial Relations Act 2016 (Qld), ss 562B and 562C Public Health Act 2005 (Qld) -- 1 of 10 -- 2 Public Service Act 2008 (Qld), ch 7 CASES: Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245 Gilmour v Waddell & Ors [2019] QSC 170 Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018) Tilley v State of Queensland (Queensland Health) [2022] QIRC 002 Reasons for Decision Introduction [1] Mr Nathan Domrow ('the Appellant') is employed by the State of Queensland (Queensland Treasury) ('the Respondent') as a Principal Statistician at the Queensland Government Statistician's Office ('QGSO'). [2] On 23 February 2022, the current version of the COVID-19 vaccination requirements for Treasury employees ('the Policy') came into effect, with the Policy being initially effective from 11 January 2022. [3] The Policy applies to all employees of the Respondent whose primary place of employment is 1 William Street ('1WS') or any 'Other Treasury Office Workplaces' as defined under cl 5.1 of the Policy. Clause 5.1 of the Policy relevantly defines, inter alia, 'Other Treasury Office Workplaces' as follow: 5.1 Definitions … Other Treasury Office Workplaces include the following offices: • 275 George Street, Brisbane • 33 Charlotte Street, Brisbane • Icon Tower, Ipswich • Stanley Street, Townsville • Distributed Work Centres • Other office workplaces to the extent those future office workplaces share features similar to 1WS or any of the workplaces immediately above as determined by the Chief Executive. [4] Clause 1.8 of the Policy provides that an existing employee undertaking work in a role where 1WS is their primary place of employment must have received the first dose of a COVID-19 vaccine by 23 January 2022, the second dose of a COVID-19 vaccine by 21 February 2022 and subsequent, or additional, doses of a COVID-19 vaccine as required to continue to be 'fully vaccinated'. [5] Clause 1.8 of the Policy further provides that an existing employee undertaking work in a role where their primary place of employment is based in any 'Other Treasury Office -- 2 of 10 -- 3 Workplaces' must have received the first dose of a COVID-19 vaccine by 11 March 2022, the second dose of a COVID-19 vaccine by 8 April 2022 and subsequent, or additional, doses of a COVID-19 vaccine as required to continue to be 'fully vaccinated'. [6] Clause 2.4 of the Policy provides that, in very limited circumstances, an employee may request the Chief Executive to approve a delay in compliance with the vaccination requirements under cl 1.8. The Policy notes that an approval of a delay is not an 'exemption' to comply with the vaccination requirements of the Policy and is not appropriate where the employee has a recognised medical contraindication under cl 4.1. [7] Clause 4.1 of the Policy provides that an employee that is determined to have a recognised medical contraindication are not required to comply with the vaccination requirements of the Policy. [8] On 19 May 2022, the Appellant applied for a delay from complying with the Policy based on 'exceptional circumstances' and nominated an end date to the delay to 30 June 2028 (the 'delay application'). [9] On 16 June 2022, the Appellant was advised by Ms Nyree Illingsworth, Chief Human Resources Officer, that his delay application dated 19 May 2022 had been refused. The Appellant was further advised to provide the Respondent evidence of vaccination as a matter of urgency to avoid potential disciplinary action and suspension. [10] On 17 June 2022, the Appellant requested an internal review of the decision to refuse the Appellant's delay application. [11] On 27 June 2022, Ms Cecilia Christensen, Acting Head of Corporate, confirmed the decision to refuse the Appellant's delay application. [12] On 15 July 2022, the Appellant filed an appeal notice, appealing against the decision of Ms Christensen dated 27 June 2022 pursuant to ch 7 of the Public Service Act 2008 (Qld). Appeal principles [13] The appeal must be decided by reviewing the decision appealed against.1 Because the word 'review' has no settled meaning, it must take its meaning from the context in which it appears.2 An appeal under ch 11 pt 6 div 4 of the Industrial Relations Act 2016 (Qld) ('the IR Act') is not by way of rehearing,3 but involves a review of the decision arrived at and the decision making process associated therewith. [14] The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.4 The issue for determination is whether the decision of Ms Christensen dated 27 June 2022 to confirm the decision to refuse the Appellant's delay application was fair and reasonable. Findings which are reasonably open to the decision maker are not expected to be disturbed on appeal. 1 Industrial Relations Act 2016 (Qld) s 562B(2) ('IR Act'). 2 Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261. 3 Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5 as to the former, equivalent provisions in s 201 of the Public Service Act 2008 (Qld). 4 IR Act s 562B(3). -- 3 of 10 -- 4 What decisions can the Industrial Commissioner make? [15] In deciding this appeal, s 562C of the IR Act provides that the Industrial Commissioner may: (a) confirm the decision appealed against; or (b) set the decision aside and substitute another decision; or (c) set the decision aside and return the issue to the decision maker with a copy of the decision on appeal and any directions considered appropriate. Grounds of Appeal [16] The Appellant outlined the following four grounds of appeal in the appeal notice: 1. The validity of the Respondent's generic risk assessment for 'Other Treasury Office Workplace' being applied to Distributed Work Centres ('DWC'). 2. The legitimacy of the Respondent enforcing a vaccine mandate for a location in which no mandate is required. 3. The Respondent's inconsistency with the assertion that the Appellant 'may be required to attend 1WS due to operational requirements' when comparing arrangements for other employees with similar roles who work in other areas of the State. 4. The lawfulness of the Respondent's vaccination policy including issues associated with risk assessment and human rights assessment. Appellant's submissions [17] The Appellant made submissions regarding the Policy and its application to DWCs, submitting, in summary, that: (a) no definition is provided for the term 'primary place of employment'; (b) a review of the Policy in February 2022 broadened the scope of the Policy. However, the Respondent did not review the human rights assessment and employees were not consulted on the change to include 'Other Treasury Office Workplaces'; (c) the Appellant became aware that the Queensland Government Accommodation Office ('QGAO'), who manage DWCs, were not required to be vaccinated while attending a DWC. As such, there is no validity for including DWCs in the Policy when QGAO does not have any vaccination requirements for employees to attend a DWC; -- 4 of 10 -- 5 (d) the term 'features' in cl 5.1 is ambiguous and has not been defined by the Respondent; (e) whether a vaccinated employee of the Respondent in a DWC is sitting next to an unvaccinated employee of the Respondent or an unvaccinated employee from another department is immaterial; (f) if the Respondent were concerned about the risks identified, the Respondent would have modified the Policy to prohibit all staff from attending a DWC. However, this did not occur and is evident that the risk assessment is not fit for purpose and should not be used as a basis for excluding unvaccinated employees from attending a DWC; and (g) there is no risk assessment specific to individual DWCs. [18] The Appellant made further submissions regarding the 'illegitimacy' of the Policy, submitting, in summary, that: (a) significant relaxations and changes have since been made by the Chief Health Officer ('CHO') surrounding vaccination requirements. As such, the Respondent should revisit and update the risk assessments and the human rights assessment in consideration of the changes; (b) in reference to the statement, 'vaccination might not prevent infection, bit it will protect you from serious illness', made by the CHO in a media article, the Appellant submits that the statement is in direct conflict to the risk assessment which states that 'vaccination and masks (properly worn) provide the greatest opportunity to reduce the risks across the WHS, service delivery, legal and reputational risk categories'; (c) the Policy impacts human rights and the mental wellbeing of employees and should be founded on external, peer reviewed statistical analysis to back up the reason for its implementation. However, the Respondent references obscure website articles that have no statistical foundation in an attempt to support the Policy; (d) the initial consultation for the Policy was rushed during the Christmas holiday period where many staff were on leave and was not afforded with the opportunity to respond; (e) the wording of the consultation was for 'mandatory vaccination of all workers and visitors to 1 William Street' which is inconsistent with the Policy providing for all staff whose primary place of employment is 1WS or any 'Other Treasury Office Workplaces'; (f) the Respondent should be required to reconsult with its employees after changing the Policy; and (g) the Respondent's refusal to consider updated advice from the CHO is a breach of numerous provisions of the Human Rights Act 2019 (Qld). -- 5 of 10 -- 6 [19] The Appellant submits that the Respondent's statement that operational requirements may include a requirement for the Appellant to attend 1WS is not relevant as the Appellant is able to undertake all aspects of his role within QGSO in a remote location. In support, the Appellant outlined the following submissions: To further prove my point, the QGSO have staff located in Brisbane (1 William Street and DWCs) and Townsville. There are teams split across both Brisbane and Townsville locations where one or more staff are located in Townsville and the remainder of the team located in Brisbane. QGSO have no concerns about staff working remotely in Townsville even if the rest of their team are located in Brisbane. This is emphasised by recent QGSO job vacancies advertising the location of roles as either in Brisbane or Townsville. Furthermore, in more than 21 years of working within QGSO, I have never seen a Townsville staff member asked to fly to Brisbane for an operational requirement. If there is no concern with current remote working arrangements for Townsville staff, it should not be a concern for an employee working remotely at home or at a DWC? In the last seven months of my working from home full-time, Queensland Treasury have not raised any concerns with me about operational requirements that would have need for me to attend the 1 William Street office. [20] The Appellant submits that he has chosen not to take the 'emergency approved COVID- 19 vaccination' due to his family responsibility and not wanting to risk receiving a vaccine related injury. The Appellant refers to s 7(o) of the Anti-Discrimination Act 1991 (Qld) which prohibits discrimination on the basis of family responsibilities. Consequently, the Appellant submits that the Respondent is in breach of ss 15(2) and 15(3) of the Human Rights Act 2019 (Qld). Respondent's submissions [21] The Respondent submits, with respect to the Policy, that: (a) the requirements of the Policy were determined in consideration of relevant public health directions made by the CHO under the Public Health Act 2005 (Qld), and consideration of the risk posed by COVID-19, including risk to employees and others, business continuity risks, and operational requirements; and (b) DWCs are specifically listed in the Policy as 'Other Treasury Office Workplaces'. [22] The Respondent submits that the decision is fair and reasonable. In support, the Respondent submits, in summary, that: (a) the Respondent disputes the Appellant's submissions that no Treasury location the Appellant worked at required him to be vaccinated against COVID-19; (b) the Appellant's home is not his usual workplace and it remains the case that the Appellant's usual workplace is 1WS and could be required to attend work at 1WS; (c) the Appellant has been permitted to work from home, three days per week under a flexible working arrangement that is to be reviewed at regular intervals. The Appellant's request to work from home on a full time basis, five days a week, purely for the purpose of avoiding the requirement to be vaccinated, is not reasonable; -- 6 of 10 -- 7 (d) QGSO staff from Townsville travelling to Brisbane have been restricted since the pandemic commenced, however, it is intended that travel between the offices will resume and staff from Townville who will work in 1WS will be required to be vaccinated; (e) the Appellant's submissions were carefully considered by Ms Christensen and weighed against the objects and requirements of the Policy. However, the Appellant did not demonstrate any exceptional or extenuating circumstances relating to him as an individual that justified the granting of a six year delay from compliance with the Policy; (f) the Appellant's request for a delay until 30 June 2028 is unrealistic and has the effect of the Appellant requesting a permanent exemption from the Policy despite demonstrating no exceptional reason as to why he should be exempt; (g) the Appellant's claim that he advised the Respondent that he had expressed a written intention to comply with the Policy is disingenuous given the significant period of time for the requested delay and the requirements the Appellant has listed for him to even consider complying with the Policy; (h) it is clear from the Appellant's correspondence that he has no intention of complying with the Policy; (i) the Appellant is hesitant to become vaccinated against COVID-19, which is not an exceptional circumstance and does not result in requiring compliance with the Policy being unreasonable, having regard to the risk posed by COVID-19; (j) the Appellant did not provide any evidence of a medical condition which meant he was unable to be safely administered the current vaccines; (k) while the Appellant is entitled to his views regarding the safety and efficacy of the COVID-19 vaccination, it is not incumbent on the Respondent to accept his views, particularly noting the weight of medical and scientific evidence is against him; (l) the risk and human rights assessments regarding all workplaces of the Respondent have been accessible to all staff for some time through the Respondent's webpage and remain current, valid, appropriate and support the application of the Policy in respect to all DWCs operating within the Respondent; and (m) the Appellant has not advised how he believes the Policy is not compatible with human rights. Consideration [23] Consideration of an appeal of this kind requires a review of the decision by Ms Christensen to determine if the refusal of the Appellant's delay application was fair and reasonable in the circumstances. [24] The Policy was determined following consideration of the risk posed by COVID-19 to employees and others, business continuity risks and operational requirements. The Policy -- 7 of 10 -- 8 applied to employees whose primary place of employment is 1WS or any 'Other Treasury Office Workplaces'. Clause 5.1 of the Policy defines 'Other Treasury Office Workplaces' as including a number of offices, including DWCs. I am satisfied the Policy applied to the Appellant on the basis that his primary place of work is 1WS. His current work arrangements do not alter the primary place of his position given that these arrangements are temporary only. [25] The Appellant, who currently works two days per week at a DWC, submits that the Respondent's risk assessment for 'Other Treasury Office Workplaces' being applied to DWCs was invalid and illegitimate and no vaccine mandate is required. The Appellant does not outline the basis upon which he considers the risk assessment to be invalid or the basis upon which he considers that no vaccine mandate is required. The Appellant states that his appeal is based upon these factors along with 'the lawfulness of Queensland Treasury's vaccination policy'. In consideration of the grounds of appeal and submissions relating to the safety of the vaccine, I accept the characterisation of the Appellant as vaccine hesitant, noting that it is open to the Appellant to hold personal views about the COVID-19 vaccine. However, as previously noted in matters before this Commission,5 the decision maker is not required to accept those views when determining whether a request for an exemption should be approved. In the circumstances, I also consider that vaccine hesitancy is not an exceptional circumstance for the purposes of an application for delay from compliance with the Policy. [26] Ms Christensen addressed the Appellant's submissions that QGAO has not assessed DWCs as requiring mandatory vaccination and explained that the difference in risk assessment is due to the different organisational factors that have been taken into consideration. Ms Christensen reasonably concluded that the fact that the QGAO has assessed the risk differently for DWCs does not make the Respondent's assessment invalid. [27] The Appellant works from home on a temporary flexible working arrangement for three days per week. Ms Christensen confirmed that the Appellant may be required to attend 1WS due to operational requirements on the basis that it is his usual location and the location of his work team. The decision by Ms Illingsworth refers to an acknowledgement in the flexible working agreement that 'temporary changes may be made to meet urgent operational requirements', noting that this may include a requirement that the Appellant attend 1WS for reasons including but not limited to 'covering peak periods, attending meetings or training courses, collaborating with colleagues or stakeholders, managing staff, dealing with emergent situations, and ensuring adequate in-office staffing levels'. Ms Illingsworth proceeded to note that the Appellant is currently not able to meet this requirement as he is not vaccinated. The conclusion that the Appellant would be expected to attend 1WS in the future was open to the decision maker. [28] The Appellant's flexible work agreement was initially approved as a three-month trial with subsequent monthly reviews for the purpose of specific family reasons. Ms Christensen determined that this arrangement indicated a cautious approach which allowed for change to the agreement at relatively short notice, noting that the agreement did not facilitate an ongoing change to the Appellant's employment conditions. In most circumstances, flexible working agreements are not arrangements to be used to avoid the 5 See e.g., Tilley v State of Queensland (Queensland Health) [2022] QIRC 002. -- 8 of 10 -- 9 requirement to comply with the Respondent's workplace policies. I also note that these arrangements are also subject to review at regular intervals and may change over time. It was open to Ms Christensen to determine that the Appellant's flexible working agreement did not remove his obligation to comply with the same requirements and responsibilities as his colleagues. [29] The Appellant requested that he be granted a six year delay from complying with the Policy. I accept the Respondent's submission that this would, in effect, constitute a permanent exemption from the Policy. In circumstances where an employee was able to demonstrate exceptional circumstances, such a request may reasonably be granted. However, the Appellant did not provide any evidence of exceptional circumstances, including evidence of any medical contraindications, to support his request for a delay. [30] The Policy outlines the consideration given to the potential impacts on human rights in determining the vaccination requirements. The Policy determined the following: Consideration has been given to the potential impacts on human rights in deciding on the COVID- 19 vaccination requirements outlined in this policy. It is acknowledged that human rights may be limited by the vaccination requirements of this policy. However, it has been determined that any such limitation is reasonable and justified for the purposes of managing the risk from COVID-19, and fairly balancing the rights of the individual and the interest of the community. … [31] The decision demonstrated consideration of the Appellant's human rights in response to his delay application, determining that the human rights assessments are current, valid, appropriate and support the application of the Policy to DWCs. Ms Christensen stated that she was 'not of the view that Treasury's enforcement of the Vaccination Policy, based on the associated risk assessment and human rights assessment, breaches human rights or can be construed as an act of bullying or harassment'. I am satisfied that the Appellant's human rights were considered in the application of the Policy where no evidence of 'exceptional circumstances' was provided. I also note the Respondent's submission that the risk and human rights assessments have been accessible to staff via their intranet page. The Appellant requested that the risk assessment and Policy be reconsidered in light of decisions by other agencies to amend their vaccination requirements. Whilst it was open to the Appellant to pursue such a request, it was reasonable for the Respondent to maintain its own assessment and direct the Appellant to comply with the Policy requirements in place at that time. [32] The relevant principles in considering whether a decision is 'unreasonable' were outlined by Ryan J in Gilmour v Waddell & Ors:6 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.7 6 [2019] QSC 170. 7 Ibid [207]-[209]. -- 9 of 10 -- 10 [33] Applying the principles outlined above, I do not consider that the decision lacks justification in the circumstances. Based on the information before me, I am satisfied that the internal review decision confirming the decision not to grant the Appellant a delay in complying with the Policy was fair and reasonable. [34] I order accordingly. Order Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed. -- 10 of 10 --