Bishop v State of Queensland (Queensland Ambulance Service) [2022] QIRC 292

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Bishop v State of Queensland (Queensland Ambulance Service) [2022] QIRC 292 PARTIES: Bishop, Veronica (Appellant) v State of Queensland (Queensland Ambulance Service) (Respondent) CASE NO: PSA/2022/549 PROCEEDING: Public Service Appeal – fair treatment appeal DELIVERED ON: 4 August 2022 MEMBER: HEARD AT: Pidgeon IC On the papers ORDER: Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appealed against is confirmed. CATCHWORDS: PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – public service appeal – external review – where the appellant applied for an exemption from QAS HR Policy – Employee COVID-19 Vaccination Requirements – where appellant was denied an exemption from complying with the policy – where appellant submits that decision is unfair and unreasonable LEGISLATION: Human Rights Act 2019 (Qld) s 17 Industrial Relations Act 2016 (Qld) ss 562B and 562C -- 1 of 12 -- 2 Public Service Act 2008 (Qld) s 194 QAS HR Policy – Employee COVID-19 Vaccination Requirements s 3.6 CASES: Blomfield v State of Queensland (Queensland Health) [2022] QIRC 116 Slykerman v State of Queensland (Queensland Health) [2022] QIRC 039 Stevens v Epworth Foundation [2022] FWC 593 Tilley v State of Queensland (Queensland Health) [2022] QIRC 002 Reasons for Decision Introduction [1] Veronica Bishop (the Appellant) is employed by the Queensland Ambulance Service (the Respondent). Ms Bishop is employed as an Emergency Medical Dispatcher at the Far Northern Region/Cairns Operation Centre. The Respondent describes Ms Bishop's role as 'an operational role which is responsible for receiving and monitoring emergency calls, providing essential prearrival advice and coordinating and dispatching Queensland Ambulance Service (QAS) resources and patient transport movements for the Queensland community'. [2] On 13 September 2021, the Code of Practice and QAS HR Procedure – COVID-19 Vaccine Requirements (the Procedure) was published. The Procedure required that QAS employees who fall within a high-risk group be subject to mandatory vaccination requirements. Section 3.6 of the Procedure provided for an employee to apply for an exemption where the employee has a recognised medical contraindication, the employee has a genuinely held religious belief or where another exceptional circumstance exists. [3] On 4 November 2021, Ms Bishop applied for an exemption to the mandatory vaccine requirements identifying 'other exceptional circumstances'.1 [4] On 31 January 2022, the Director-General, Queensland Health updated the COVID-19 vaccination requirements for QAS employees and released a new QAS HR Policy – Employee COVID-19 Vaccination Requirements (the QAS HR Policy). That policy requires existing employees currently undertaking work or moving into a role undertaking work listed in a cohort of Table 1 of the QAS HR Policy to have received 1 Respondent's submissions filed 6 June 2022, Attachment 1. -- 2 of 12 -- 3 the first dose and second dose of a COVID-19 vaccine by 27 February 2022.2 Group 2 in Table 1 covers QAS employees who are employed to work in a hospital or other healthcare setting where clinical care or support is provided, including ambulance stations and emergency operations centre staff. [5] The updated QAS HR Policy also allows for individuals who are unable to be vaccinated to submit a request for an exemption and have that request considered by the QAS under the QAS HR Policy. Ms Bishop was informed that she was able to make amendments to her exemption application if there were any changes following the release of the new policy and that if she did not do so, QAS would consider her existing request for an exemption under the updated QAS HR Policy. [6] Ms Bishop did not provide any amendments to her request for an exemption and therefore, the request made under the former policy was considered under the provisions of the new policy. [7] On 17 February 2022, in correspondence from Mr Ray Clarke, Executive Director, Workforce, Ms Bishop was informed that her request for exemption based on 'other exceptional circumstances' had been refused. That correspondence informed Ms Bishop that if she was not satisfied with the decision in relation her request, she may request an internal review of the decision. [8] Ms Bishop requested an internal review of the decision. [9] On 11 April 2022, John Hammond, A/Assistant Commissioner, Strategic Operations, wrote to Ms Bishop to inform her that he had undertaken an internal review of the decision refusing her exemption request and he had found that the decision made by Mr Clarke was fair and reasonable.3 That correspondence informed Ms Bishop that she may seek an external review of the decision. [10] On 3 May 2022, Ms Bishop filed her appeal requesting an external review of the internal review decision. It is this appeal that I am required to consider. Is the Appellant entitled to appeal? [11] Section 194 of the Public Service Act 2008 (the PS Act) lists various categories of decisions against which an appeal may be made. Section 194(1)(eb) provides that an appeal may be made against 'a decision a public service employee believes is unfair and unreasonable (a fair treatment decision)'. 2 Information contained in letter from Mr Ray Clarke, Executive Director, Workforce, Queensland Ambulance Service to Ms Bishop dated 17 February 2022. 3 It appears that due to an administrative error, Ms Bishop did not receive the letter until a later date. -- 3 of 12 -- 4 [12] The appeal notice was filed with the Industrial Registry on 3 May 2022 within 21 days of the decision being received on 11 April 2022. I am satisfied that the Appellant may appeal the decision. Appeal principles [13] Section 562B(3) of the Industrial Relations Act 2016 (the IR Act) provides that 'the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable'. [14] Findings made in the decision which are reasonably open on the relevant material or evidence before the decision-maker, should not be expected to be disturbed on appeal. [15] A public service appeal is not an opportunity for a fresh hearing, but a review of the decision arrived at by the decision-maker. To determine the appeal, I will consider whether the decision conveyed to Ms Bishop on 11 April 2022 was fair and reasonable. [16] In deciding this appeal, s 562C(1) of the IR Act provides that the Commission may: (a) confirm the decision appealed against; 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. The appeal [17] This appeal requires me to decide if the internal review decision of John Hammond dated 11 April 2022 was fair and reasonable. The internal review decision [18] I have read the internal review letter Ms Bishop received. The letter confirms that Mr Hammond has the appropriate delegation to undertake the internal review of Mr Clarke's decision and outlines the actions taken to review the decision. The letter also sets out the background to the matter commencing with the initial emails of 11 and 16 September 2021 advising employees of the mandatory vaccination requirements and outlining the process of consideration of Ms Bishop's vaccination exemption request. [19] Mr Hammond addresses the grounds raised by Ms Bishop in her internal review request and addresses each of these under the following headings: 'Safety and efficacy of COVID- 19 vaccines'; 'Human Rights'; and 'Mandatory vaccination for other organisations'. -- 4 of 12 -- 5 [20] With regard to Ms Bishop's concerns regarding Safety and Efficacy of COVID-19 vaccines, Mr Hammond said: In your internal review request, I note that you again raise concerns about the safety of the COVID- 19 vaccine, the efficacy and reliability of the vaccine. COVID-19 vaccines have undergone all of the usual assessments including peer review and publication of phase one, two and three clinical trials and review by multiple licensing bodies including the Therapeutic Goods Administration (TGA). The vaccines are now in routine clinical use to prevent disease. Evidence from around the world (including the TGA) demonstrates that the COVID-19 vaccines are safe and effective. I am satisfied that Mr Clarke has appropriately considered the concerns that you have raised around these issues, and I concur with his assessment. The concerns you may have raised related to the safety of COVID-19 vaccines are not supported and do not constitute 'another exceptional circumstance'. [21] In addressing Ms Bishop's concerns regarding Human Rights, Mr Hammond said: I note that you have stated that 'countries all over the world have overturned the procedure of mandatory forced vaccination as it is against human rights of their people – the latest country being our closest neighbour, New Zealand. The Prime Minister has always said mandatory vaccinations are against the rights of people – so too the Federal Chief Medical Officer of Australia.' The decision to require vaccination against COVID-19 was made considering the elevated risk to the health and safety of healthcare workers, support staff, their families, and the patients under our care. The decision also took into consideration the potential impact of the decision on human rights. The decision does not itself compel a person to be vaccinated, but it does impose employment consequences upon people who do not comply with the vaccination requirements of their role, unless certain extenuating circumstances apply. I note that Mr Clarke provided you advice that it is the position of Queensland Health that the impact of the decision upon human rights, to the extent that these are impacted, are reasonably justified. The purpose of the requirement to be vaccinated in the QAS HR Policy includes the maintenance of a proper and efficient health system in a time of a global pandemic. Your role and function are of great importance to this objective within the organisation. It should be noted that there is no other reasonably practicable, effective and less restrictive way to achieve this purpose in the context of a global pandemic. When weighted against the broader public health risks and requirements, I am satisfied that any limits Mr Clarke's decision imposed on your human rights were justified by the need to ensure the readiness of the health system in responding to the COVID-19 pandemic, and in the interests of protecting employees, patients and the community. [22] In addressing Ms Bishop's review ground regarding Mandatory vaccination for other organisations, Mr Hammond said: You raise that the Operations Centre is shared between both QAS and Queensland Fire and Emergency Services (QFES) staff, however there are no mandatory vaccination requirements for QAS staff. -- 5 of 12 -- 6 Please be advised that the decision about whether to implement a COVID-19 vaccine requirement at QFES is a matter for the chief executive of QFES to consider. A decision that may be made by an accountable officer from another organisation (whether this be from the Queensland Government or otherwise) has no bearing on the lawfulness, reasonableness, or otherwise of the decision of Queensland health and the QAS to implement the employee COVID-19 vaccination requirements within the health workforce having regard to the services provided, workforce management requirements, and the various other legislative or employment arrangements that will exist and be unique to each organisation. Different workforce arrangements are not unusual in this context and do not provide grounds for an exemption from COVID-19 vaccination requirements of your role under the provisions of the QAS HR Policy. [23] Mr Hammond goes on to say: In considering the requirements under Directive 11/20 and the actions taken as outlined above, I consider the decision made by Mr Clarke was fair and reasonable in the circumstances. I consider your request for an exemption from the COVID-19 vaccine was correctly refused in the circumstances and your role continues to require you to be vaccinated against COVID-19. Ms Bishop's reasons for appeal [24] Ms Bishop filed her appeal notice on 3 May 2022. In that notice of appeal, Ms Bishop lists the following, as a basis of her appeal: • the risks associated with covid 19 and the covid 19 vaccination as it relates to my role (several requests were made for a risk assessment to be conducted but never was I advised this was done). • the safety and efficacy of the covid 19 vaccination (I had asked for real data – as at the time where was significant data recorded with the TGA and severe adverse reactions and deaths as a direct result of the vaccination – also at this time I stated in my role I had direct experience of both of these occurrences. • my ability to provide free and informed consent (as per immunisation standards in this country) and a basic Human Right of sovereignty of bodily autonomy). [25] Ms Bishop says that in his correspondence rejecting Ms Bishop's request for an exemption dated 17 February 2022, Mr Clarke 'gave a generic reply but did not really address my concerns or give any solid hard facts that were able to be confirmed'. [26] Ms Bishop says that her internal review request asked for verified facts and figures to support Mr Clarke's assumption that the vaccine was 'safe and efficient'. Ms Bishop says that the safety and efficiency of the vaccines can be 'easily disproven by many means' and that it had been proven that the vaccine does not stop the spread of the virus. [27] With regard to Mr Hammond's statement that the vaccines are now in routine clinical use to prevent disease, Ms Bishop says, 'there is absolutely no evidence to support (that) the vaccine prevents COVID-19'. -- 6 of 12 -- 7 [28] Ms Bishop says that she has 'absolutely nil contact with any patients' but that she does have contact with workers of QFES who are not required to be vaccinated. Ms Bishop says that the issue she raised regarding the vaccination policy applying to QFES workers was 'not dealt with but merely deflected as not being of concern or any relevance'. [29] Ms Bishop directs me to the emails she has sent in support of her exemption request and the request for internal review as they include 'further relevant pertinent information'. Ms Bishop's submissions [30] On 24 May 2022, Ms Bishop filed submissions in support of her appeal. I have read those submissions and note that they address the following: • Submission One – The vaccination policy is contrary to section 17(c) of the Human Rights Act. • Submission Two – The vaccination policy is contrary to the objectives of the Human Rights Act. • Submission Three – The decision was unfair and unreasonable because it gave insufficient weight to the individual workplace circumstances of the Appellant. • Submission Four – No authority binds the Queensland Industrial Relations Commission ('The Commission') in the circumstances of this case.4 [31] I have read Ms Bishop's request for internal review and note her reference to her considerable research regarding the virus and the vaccination. Ms Bishop's internal review request states that there have been more deaths from COVID-19 in Queensland after the introduction of vaccines than before. [32] Ms Bishop states that her vaccine hesitancy is absolutely justified. Ms Bishop also requested for information in writing to be provided to her that the Respondent still believed that the vaccine was safe and reliable. [33] Ms Bishop's request for internal review also states that she has no contact with patients or paramedics but that she works with QFES staff who are not necessarily vaccinated. Ms Bishop goes on to raise similar issues to those outlined in her appeal notice and addressed above. I will not repeat those here. Respondent's submissions [34] With regard to Ms Bishop's submission that the decision does not take into account her individual workplace circumstances, the Respondent says that Ms Bishop is required to provide clinical care and often lifesaving support to patients and clients from an emergency operations centre via telephone (the triple zero hotline) prior to paramedic arrival on the scene. The Respondent further says that emergency operations centres are attended by paramedics and other staff covered by Group 1 and 2 of the Policy and are 4 These are the headings under which Ms Bishop's submissions are outlined. -- 7 of 12 -- 8 often co-located with ambulance stations where clinical care and support is physically provided to patients.5 [35] The Respondent says that should staff numbers be decreased within emergency operations centres due to a COVID-19 outbreak, there would be significant disruption and impact to the provision of ambulance services to the community. The Respondent submits that due to Ms Bishop's location of work in an emergency operations centre and the fact she may come into contact with other employees covered by the Policy, she is required to be vaccinated against COVID-19 due to the nature of her duties and the healthcare services provided by her over triple zero.6 [36] With regard to Ms Bishop's submission that she works alongside QFES staff members who have not been directed to receive the vaccination, the Respondent says that Ms Bishop is a person covered by the Policy and the fact that QAS may share a location with QFES does not mean the Policy is unreasonable.7 [37] The Respondent says that exemption applications are considered on an individual basis, weighed against the Respondent's health and safety obligations, and are only approved in exceptional circumstances having regard to the public health risk posed by COVID- 19. The Respondent says that it is clear from the material that Ms Bishop is hesitant about receiving the vaccine but that vaccine hesitancy is not an exceptional circumstance.8 [38] The Respondent submits that A/Assistant Commissioner Hammond carefully considered Ms Bishop's submissions and that Ms Bishop did not demonstrate any exceptional or extenuating circumstances relating to her as an individual that justified the granting of an exemption.9 [39] The Respondent says that Ms Bishop is entitled to hold her views about the safety and efficacy of COVID-19 vaccination, however it is not incumbent upon the Respondent to accept her views, particularly noting that the weight of medical and scientific evidence is against her.10 [40] With regard to Ms Bishop's submissions that the Policy is contrary to s 17(c) of the Human Rights Act 2019 (Qld), the Respondent says that the COVID-19 vaccination is neither 'a medical or scientific experimentation or treatment'. The Respondent says that Ms Bishop has not been deprived consent in respect to receiving a COVID-19 vaccine. Ms Bishop remains free to not receive a vaccine and has a right to decline to become vaccinated, however there are consequences of that decision.11 5 Respondent's submissions filed 6 June 2022, [13]. 6 Ibid. 7 Ibid [14]. 8 Ibid [15]; Tilley v State of Queensland (Queensland Health) [2022] QIRC 002, [39]. 9 Respondent submissions 6 June, [16]; Blomfield v State of Queensland (Queensland Health) [2022] QIRC 116. 10 Respondent's submissions filed 6 June 2022, [18]; Slykerman v State of Queensland (Queensland Health) [2022] QIRC 039, [36]. 11 Respondent's submissions filed 6 June 2022, [19]; Stevens v Epworth Foundation [2022] FWC 593, [22]. -- 8 of 12 -- 9 [41] Addressing Ms Bishop's submissions regarding her request for provision of a risk assessment, the Respondent says that QAS employees have access to information in respect to safety and efficacy of the vaccination. Further, the Respondent says that QAS is part of Queensland Health and that the Department complied with its obligations under the Work Health and Safety Act 2011 to consult with employees and registered unions representing employees regarding the introduction of the vaccine mandate.12 [42] The Respondent submits that there is no lawful basis upon which Ms Bishop can request a risk assessment undertaken in relation to the vaccines or proof that she is at a heightened risk of transmission. The Respondent says that the vaccines have been approved by the TGA and the approval of the vaccines is a matter of public record and is evidence of their safety and efficacy. The Respondent says it was not required to undertake its own risk assessment of the vaccines.13 [43] The Respondent says that Ms Bishop's human rights were considered throughout the exemption application process and that A/Assistant Commissioner Hammond determined that any limitation to Ms Bishop's human rights was 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. [44] The Respondent submits that it was reasonably open to A/Assistant Commissioner Hammond to determine Ms Bishop's circumstances did not justify the approval of an exemption and the decision should be confirmed. Ms Bishop's submissions in reply [45] With regard to the Respondent's submissions outlined above at [41]-[43], Ms Bishop says that it is 'pointless, irrational, useless and illogical as well as unreasonable' to expect her to be vaccinated. Ms Bishop says that any claim that requiring her to be vaccinated to protect other employees does not take into account that they are mixing the QFES employees. [46] With regard to the Respondent's description of Ms Bishop's role in providing support to patients and clients via triple zero, Ms Bishop says 'you cannot catch COVID over the telephone'. [47] With regard to the Respondent's submission that the fact that QAS share a location with QFES does not make the Policy unreasonable, Ms Bishop says that 'if the room in which she works is saturated with COVID, what is point of her, against her principles, having to be vaccinated against COVID. It is not going to protect QAS employees, which is supposed to be the point of it'.14 12 Ibid [20]. 13 Ibid [21]; Slykerman v State of Queensland (Queensland Health) [2022] QIRC 039. 14 Appellant's submissions filed 13 June 2022. -- 9 of 12 -- 10 [48] Ms Bishop says that nowhere in the decision have her individual circumstances been addressed. Ms Bishop says that as an individual, the rules should not be applied to her, no matter how reasonable they may be in any other circumstances. [49] In response to the Respondent's submission that the 'vaccination is neither a medical or scientific experimentation or treatment', Ms Bishop says that this is 'simply appellable nonsense. Poking a needle into somebody to protect them against an illness is undoubtably medical treatment'. [50] In summary, Ms Bishop submits that none of her submissions have been addressed and that the Respondent does not recognise that this is an exceptional case. The reason Ms Bishop should be exempted is that she does not come into contact with patients. Ms Bishop only comes into contact with other employees of QAS and that this is in circumstances where there may already be COVID present because of the presence of QFES employees who do not have to be vaccinated. Consideration and order Safety and efficacy of vaccines, risks associated with vaccines [51] Firstly, with regard to Ms Bishops appeal grounds as they relate to the risks associated with COVID-19 and the COVID-19 vaccination, an appeal against a decision to refuse an exemption application is not an avenue to appeal the vaccination policy or to debate the science which supports the COVID-19 vaccinations. Those are matters to be considered through other avenues and I will not address them here. [52] I am satisfied that the Respondent met its obligation to consult with the relevant unions prior to the introduction of the vaccine mandate. Further, I note that there was no requirement for the Respondent to undertake a risk assessment regarding the vaccines or to provide this to employees. The direction given to Ms Bishop was lawful [53] I am approaching this Appeal from a position that the direction to be vaccinated was a lawful direction to employees. While Ms Bishop submits that the decision gave insufficient weight to her individual workplace circumstances, it is clear that Ms Bishop, as an Emergency Medical Dispatcher, is part of Group 2 of the Policy. Ms Bishop is a person the Policy applies to and she was required to comply with the direction to receive the required doses of the vaccination. Ms Bishop's individual workplace circumstances [54] I understand Ms Bishop's submission to be that she does not have any contact with patients or vulnerable people. However, I note the Respondent's submissions regarding -- 10 of 12 -- 11 the nature of Ms Bishop's role and the reasons the employer decided that the Policy would apply to her. [55] What QFES or other agencies determine to do regarding vaccine mandates is a matter for them. I understand that Ms Bishop believes that it is nonsense to require her to be vaccinated. However, Ms Bishop's employer has determined that for health and safety and operational reasons, it will require its employees in the relevant workplaces to be vaccinated. This determination about health and safety is not only in relation to patients, other employees and the community but also relates to Ms Bishop herself as an individual employee. When considering all of the submissions before me, I can find no reason to determine that Ms Bishop's individual circumstances are such that she should be exempted from the requirement to be vaccinated. Ms Bishop's human rights have been addressed [56] I am satisfied that the decision of A/Assistant Commissioner Hammond addressed Ms Bishop's human rights. This is set out at [28] above and also at the conclusion of the decision which says: The QAS HR Policy makes vaccination compulsory for certain workers and others in specific circumstances to protect the community during the pandemic. I acknowledge that my decision may engage a number of your human rights, including your right to recognition and equality before the law, and your right to take part in public life (through employment in the public service). I am satisfied that any limits on human rights engaged are justified by the need 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 and to discharge the QAS's legal obligations, including under the Work Health and Safety Act 2011. I do not consider there is any less restrictive means, other than vaccination, which would sufficiently ensure your safety and the safety of other staff and patients. [57] Ms Bishop retains the capacity to determine if she will consent to receiving the vaccine. It is open to Ms Bishop to determine whether she will comply with the direction of her employer in the knowledge that this may have consequences for her employment. The internal review decision was fair and reasonable [58] As is outlined above, A/Assistant Commissioner Hammond provided a detailed response addressing the grounds raised by Ms Bishop in her request for internal review. The internal review decision included detailed consideration of the initial decision of Mr Clarke refusing Ms Bishop's request for an exemption. I am satisfied that the Internal Review decision has addressed the matters raised by Ms Bishop in a fair and reasonable way. [59] The internal review decision of 11 April 2022 is confirmed. -- 11 of 12 -- 12 Order 1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appealed against is confirmed. -- 12 of 12 --