Boehm v State of Queensland (Queensland Health) [2022] QIRC 321

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Boehm v State of Queensland (Queensland Health) [2022] QIRC 321 PARTIES: Boehm, Allison (Appellant) v State of Queensland (Queensland Ambulance Service) (Respondent) CASE NO: PSA/2022/446 PROCEEDING: Public Service Appeal – Appeal against a fair treatment decision DELIVERED EX TEMPORE ON: 8 August 2022 MEMBER: Dwyer IC HEARD AT: Brisbane ORDER: 1. The decision appealed against is confirmed. CATCHWORDS: PUBLIC SERVICE – APPEAL - appeal against a fair treatment decision - where appellant is employed by the State of Queensland as an advanced care paramedic - where the Code of Practice and Queensland Ambulance Service HR Procedure – COVID- 19 Vaccine Requirements directed employees to receive at least a first dose of a COVID-19 vaccine by 30 September 2021 and receive the second dose of a COVID-19 vaccine by 31 October 2021 – where appellant applied for exemption on the grounds of other exceptional circumstances – where exemption application was not granted – internal review sought – -- 1 of 6 -- 2 Reasons for Decision (ex tempore) Background [1] Ms Allison Boehm is employed with the Queensland Ambulance Service as an advanced care paramedic, level two. She has been employed with the Queensland Ambulance Service ('the service') for approximately 10 years. [2] On 13 September 2021, the service published the Code of Practice and Queensland Ambulance Service HR Procedure – COVID-19 Vaccine Requirements ('the vaccine procedure'). The vaccine procedure required employees within certain categories to be vaccinated against COVID-19 by 30 September 2021 in relation to the first dose and 1 October 2021 with respect to the second dose. It is not controversial that the vaccine procedure applied to Ms Boehm and that she had not complied with it. [3] On or about 30 September 2021, Ms Boehm applied for an exemption from the vaccine procedure. Ms Boehm relied on the grounds of 'other exceptional circumstances' and said in her application as follows: decision to confirm refusal of exemption – where internal review decision appealed - decision appealed against confirmed LEGISLATION: Industrial Relations Act 2016 (Qld) ss 562B, 562C Public Service Act 2008 (Qld) Work Health and Safety Act 2011 (Qld) CASES: Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018) Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245 APPEARANCES: Ms A Boehm, the appellant Mr L Casey and Ms K Langdon for the State of Queensland (Queensland Ambulance Service) -- 2 of 6 -- 3 At this time, I'm requesting an exemption approval due to my firm belief that the current vaccines available in this country are not the best option for me. I'd like to be given the ability to await the arrival of another vaccine I have confidence will be the right option for me, ie, Novavax. I understand that at this time, there is no set date for approval and/or release of this particular vaccine. I also understand the requirement to be fully vaccinated by the end of October 2021; however, once an appropriate vaccine is available, I intend to be vaccinated. [4] Relevantly, prior to lodging her exemption (on or about 20 September 2021) Ms Boehm wrote to a Mr David Hartley via email and said in that email: I intend to be vaccinated once Novavax is available. I contacted the TGA directly and they don't have an expected date of release. They just forwarded me the same information as what is available on the website. [5] As an apparent consequence of the impending release of a new policy to replace or update the vaccine procedure, it appears that Ms Boehm's exemption application remained in some form of abeyance until about February 2022. [6] On 1 February 2022, Ms Boehm was informed that an updated vaccine policy had been released that superseded the vaccine procedure. Under the updated vaccine policy, Ms Boehm was required to be vaccinated with two doses of an approved vaccine by 27 February 2022. [7] On 7 February 2022, Ms Boehm emailed the appropriate officer at the service and indicated that she continued to rely on her earlier exemption request on the grounds that were set out therein. [8] On 17 February 2022, Mr Roy Clark wrote to Ms Boehm in response to her exemption application. Mr Clark had understood from Ms Boehm's application that she had intended to receive Novavax. As Novavax was only just approved in February 2022, Mr Clark granted Ms Boehm a time limited exemption to 31 March 2022 to allow her to be vaccinated with Novavax. [9] The following day, on 18 February 2022, Ms Boehm wrote to the service to inform them that she had never stated she would have Novavax, and any reference to it by her was apparently just used as an example. As an aside, it should be noted that I do not consider that Ms Boehm deliberately sought to mislead the service as to her intentions about Novavax, but her poor choice of language certainly gives an impression that she was (at least in September 2021) prepared to receive Novavax. [10] As a consequence of her email of 18 February 2022, Mr Clark again wrote to Ms Boehm on 21 February 2022 and advised that in the circumstances, he had reassessed her exemption request. In his letter, Mr Clark noted Ms Boehm's concerns regarding the risks -- 3 of 6 -- 4 associated with vaccination but ultimately declined her exemption request on the basis that her concerns did not constitute other exceptional circumstances. [11] On 7 March 2022, Ms Boehm sought an internal review of the decision of Mr Clark. Ms Boehm's internal review application largely restated her concerns regarding the risks associated with vaccines. [12] On 25 March 2022, Mr John Hammond, the Acting Assistant Commissioner of strategic operations, wrote to Ms Boehm to inform her that he considered that the decision of Mr Clark was fair and reasonable and that her request for exemption was correctly refused. [13] I do not intend to reproduce in detail the reasons for decision provided by Acting Assistant Commissioner Hammond. Suffice to say that the reasons given extend to approximately six pages in length and provide a very comprehensive summary of Ms Boehm's expressed concerns. The reasons given by Mr Hammond then balances those concerns against a well-explained summary of, amongst other things, the service's obligations under the Work Health and Safety Act 2011 (Qld). [14] It is the decision of Acting Assistant Commissioner Hammond of 25 March 2022 that Ms Boehm now appeals. Statutory framework for public service appeals [15] The appeal is made pursuant to chapter 11 of the Industrial Relations Act 2016 (Qld) ('the IR Act'), which provides the Queensland Industrial Relations Commission ('the Commission') with jurisdiction to deal with appeals under the Public Service Act 2008 (Qld). [16] An appeal is a review of a decision. It is not a rehearing or a hearing de novo.1 The word 'review' is not defined and accordingly it must take its meaning from the context in which it appears.2 I am required to review the decision of Acting Assistant Commissioner Hammond to determine whether that decision was fair and reasonable.3 [17] The IR Act limits the powers of the Commission with respect to such appeals and the orders that can be made, namely:4 (a) confirm the decision appealed against; or 1 Industrial Relations Act 2016 (Qld) s562B; Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018), 5. 2 Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261 (Mason CJ, Brennan and Toohey JJ). 3 Industrial Relations Act 2016 (Qld) s 562B(3). 4 Ibid s 562C. -- 4 of 6 -- 5 (b) …; or (c) for another appeal - set the decision aside, and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate. Submissions of the parties [18] The parties in this appeal have provided written submissions in accordance with directions issued on 30 May 2022. There was also a short hearing of this matter to allow some further discussion arising from the written submissions. I do not intend to set out the submissions of the parties in full in these reasons but will instead address the key points. Ms Boehm [19] In summary, Ms Boehm's submissions continue in the theme of her previous objections to vaccination namely, her concerns as to the risks they pose, not only to her personally but to people generally. [20] Ms Boehm cites anecdotal accounts of 'people she knows' who have had 'adverse reactions' and also variously complains about a lack of consideration of alternative work arrangements, a lack of consideration of alternative protective measures such as personal protective equipment, and a lack of consultation and a lack of risk assessment. [21] Notably, none of the arguments made by Ms Boehm about vaccine safety are supported by any direct evidence, in particular, she provides no independent medical evidence supporting any medical basis for her personal health concerns. The service [22] The service relies broadly on the lawful and reasonable nature of the policy and point to the significant work health and safety responsibilities of the service. The service also pointed to their comprehensive consideration in Ms Boehm's concerns and the procedural fairness accompanying her exemption request process and the decision making accompanying it. Consideration [23] The central basis for Ms Boehm's refusal to be vaccinated is her concern that the vaccines are still something of an unknown quantity and the known risks and reported adverse effects leave her unconvinced as to the safety of any of the vaccines currently available. I have no doubt that Ms Boehm genuinely holds these concerns but there is an important -- 5 of 6 -- 6 distinction between genuinely held concerns and genuine concerns. The latter of these two will usually be objectively established with credible independent expert evidence. [24] While Ms Boehm has undoubtedly been convinced that the covid vaccines are dangerous, she remains unable to produce any credible proof to support her concerns. She says she has spoken to doctors but that none will offer support to exempt her from vaccination. [25] Ms Boehm vaguely cites anecdotes and figures about adverse reactions to covid vaccines but when pressed on these matters at hearing she concedes she has no evidence to present as proof to support these submissions. She cites 'hundreds of thousands' of adverse reactions in the United States but acknowledges that numbers like that are mere fractions of a population that exceeds 320 million people, more than half of whom are vaccinated. [26] She rejects the service's reliance on the assurances of Australian Technical Advisory Group on Immunisation ('ATAGI') but does so without any basis to reject the recognised expertise of ATAGI. Conclusion [27] I have considerable sympathy for Ms Boehm because she was evidently suffering distress at the dilemma that she is now facing. But it is a dilemma of her own making. Ms Boehm has chosen, without any of the requisite expertise, to reject the unanimous views of the global medical and scientific communities confirming the safety and efficacy of COVID- 19 vaccinations. There is simply no scientific or medical reason for her to hold the concerns she relies on to refuse to comply with the policy. [28] I strongly suspect that her hesitancy is founded in genuine (but misplaced) anxiety which leads her to seek out the outlying opinions and misinformation that is so readily available on the internet and which, through a process of confirmation bias, she feels legitimately supports her resistance to vaccination. [29] Ms Boehm has not presented any evidence that would lead me to conclude that she has any genuine or compelling grounds to be granted an exemption from vaccination, and nor has she presented any such evidence to the decisionmakers considering her exemption request. I can therefore appreciate entirely why Ms Boehm's exemption request has been rejected by the decision makers and it follows that I consider the decision under review to be fair and reasonable. Order [30] In all of the circumstances, I make the following order: 1. The decision appealed against is confirmed. -- 6 of 6 --