Doedens v State of Queensland (Queensland Ambulance Service) [2022] QIRC 263

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Doedens v State of Queensland (Queensland Ambulance Service) [2022] QIRC 263 PARTIES: Doedens, Jeffry Raymond (Appellant) v State of Queensland (Queensland Ambulance Service) (Respondent) CASE NO.: PSA/2022/559 PROCEEDING: Public Service Appeal DELIVERED ON: 13 July 2022 MEMBER: HEARD AT: Power IC 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 – appellant sought an exemption to COVID-19 vaccination requirements of the QAS Human Resources Policy - Employee COVID-19 Vaccination Requirements – exemption was refused – decision to deny exemption fair and reasonable LEGISLATION: Anti-Discrimination Act 1991 (Qld) Criminal Code Act 1899 (Qld), sch 1 s 348 Human Rights Act 2019 (Qld) Industrial Relations Act 2016 (Qld), ss 562B and 562C Public Service Act 2008 (Qld), ch 7 Work Health and Safety Act 2011 (Qld) -- 1 of 11 -- 2 Work Health and Safety Regulation 2011 (Qld) CASES: Amaya v State of Queensland (Queensland Health) [2022] QIRC 117 Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245 Brasell-Dellow & Ors v State of Queensland, (Queensland Police Service) & Ors [2021] QIRC 356 Clark v State of Queensland (Queensland Health) [2022] QIRC 170 Gilmour v Waddell & Ors [2019] QSC 170 Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018) Radev v State of Queensland (Queensland Police Service) [2021] QIRC 414 Slykerman v State of Queensland (Queensland Health) [2022] QIRC 039 Reasons for Decision Introduction [1] Mr Jeffry Raymond Doedens ('the Appellant') is employed by the State of Queensland (Queensland Ambulance Service) ('QAS'; 'the Respondent') as a Patient Transport Officer. [2] On 13 September 2021, the QAS Human Resource Procedure – COVID-19 Vaccine Requirements ('the Procedure') was published, with the effective date on 12 October 2021. The Procedure requires all existing and prospective employees who fall within a 'high risk group'1 to receive the first dose of a COVID-19 vaccine by 30 September 2021 and a second dose of a COVID-19 vaccine by 31 October 2021. The Procedure provides that vaccination requirements detailed within the Procedure are a mandatory condition of employment. 1 'High risk group' is identified under cl 3.3.2 of the Procedure. -- 2 of 11 -- 3 [3] The Procedure provides that an exemption application will be considered where the employee has a recognised medical contraindication, the employee has a genuinely held religious belief and/or where another exceptional circumstance exists.2 [4] On 27 September 2021, the Appellant submitted an 'Employee COVID-19 vaccine exemption application form' (the 'exemption application'), seeking an exemption from obtaining any COVID-19 vaccination on the basis of 'a genuinely held religious belief' and 'other exceptional circumstances' in accordance with the Procedure. [5] On 30 September 2021, the Appellant submitted a further exemption application form, again, seeking for an exemption from obtaining any COVID-19 vaccination identifying 'a genuinely held religious belief' and 'other exceptional circumstances'. In support of the further exemption application, the Appellant provided letters from Kennedy Spanner Lawyers dated 27 and 29 September 2021, outlining concerns regarding, inter alia, the lack of appropriate consultation, lack of risk assessments, lack of proper consideration of alternative measures, notice period for implementation of the Procedure and the impact on human rights [6] On 31 January 2022, the Procedure was replaced by the QAS Human Resources Policy – Employee COVID-19 Vaccination Requirements ('the Policy'), which requires that all existing employees must have received the first and second dose of a COVID-19 vaccine by 27 February 2022. The Policy outlines that the mandatory requirement to be vaccinated against COVID-19 applies to all existing and prospective employees who work in the following cohorts within QAS: (a) all QAS employees working in or providing services to residential aged care facilities and residential aged care within a multipurpose health service; (b) all QAS employees who are employed to work in a hospital or other healthcare setting where clinical care or support is provided; and (c) all other QAS employees who are employed in roles that require attendance at a hospital or other facility where clinical care or support is provided. [7] The Policy provides for the same circumstances as the Procedure for which an application for an exemption to the vaccination requirements could be made. [8] On 1 February 2022, the Respondent informed the Appellant of the Policy which replaced the Procedure. As the exemption application had yet to be decided, the Appellant was provided with the opportunity to, inter alia, provide any further information in support of the exemption application. The Appellant subsequently advised on 7 February 2022 that he wished to provide additional information. [9] On 24 February 2022, Mr Ray Clarke, Executive Director, Workforce, advised the Appellant that his exemption application had been refused. The Appellant was directed to comply with the Policy to receive the first dose and provide confirmation of compliance within seven days from receipt of the letter. 2 The Procedure, cl 3.6.2. -- 3 of 11 -- 4 [10] On 15 March 2022, the Appellant requested an internal review of the decision to refuse the Appellant's exemption application. [11] On 19 April 2022, Acting Assistant Commissioner John Hammond, Strategic Operations, confirmed the decision to refuse the Appellant's exemption application. [12] On 6 May 2022, the Appellant filed an appeal notice, appealing against the decision of A/AC Hammond dated 19 April 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.3 Because the word 'review' has no settled meaning, it must take its meaning from the context in which it appears.4 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,5 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.6 The issue for determination is whether the decision of A/AC Hammond dated 19 April 2022 to confirm the decision to refuse the Appellant's exemption application was fair and reasonable. Findings which are reasonably open to the decision maker are not expected to be disturbed on appeal. 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] As outlined in the appeal notice, the Appellant appeals the decision on the basis that the decision to refuse the exemption application to be unreasonable in consideration of the Appellant's circumstances. The Appellant contends that: (a) the decision is unreasonable due to a 'demand' that has the potential to harm to the Appellant directly; 3 Industrial Relations Act 2016 (Qld) s 562B(2) ('IR Act'). 4 Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261. 5 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). 6 IR Act s 562B(3). -- 4 of 11 -- 5 (b) the Appellant's concerns have not been sufficiently addressed and no supporting evidence was provided to assist the Appellant in making a fully informed decision; (c) A/AC Hammond's statement in the decision that 'the vaccines are now in routine clinical use to prevent disease and serious illness' is completely false and misleading, constituting a failure in his duty of care and is contrary to public statements made by the Chief Health Officer ('CHO'), State Health Officers, the Premier and Health Ministers across Australia; (d) there is a growing volume of peer-reviewed literature that demonstrates the superiority of natural immunity which the Appellant provided in support of the exemption application, however, was not acknowledged; (e) the Appellant remains unable to give informed consent due to the lack of consultation and the Appellant's request for an individual risk assessment being unanswered and unaddressed; (f) by not providing informed consent is coercive pressure, is unlawful and violates the protections afforded in the Work Health and Safety Act 2011 (Qld) ('WHS Act') and the Human Rights Act 2019 (Qld); (g) documentation was submitted providing evidence regarding concerns of the Appellant's health and the effects the vaccination on the Appellant's health condition, specifically, type 1.5 diabetes. Having to discuss the Appellant's health condition with the Respondent is a violation of the Appellant's right to medical privacy; (h) in all communications, when requesting for a risk assessment for the Appellant's specific role, the Appellant had clearly expressed his readiness, ability and willingness to work; and (i) the refusal to grant the exemption is unlawful discrimination under the Anti- Discrimination Act 1991 (Qld). Respondent's submissions [17] The Respondent submits that the decision to confirm the refusal of the Appellant's exemption application was fair and reasonable. The Respondent submits, in summary, that: (a) exemption applications, including ones made on the basis of genuinely held religious beliefs to vaccination, are considered on an individual basis and weighed against the Respondent's health and safety obligations; (b) every exemption application will have competing considerations. Ultimately, the considerations about workplace and community safety had to take precedence over the Appellant's religious beliefs; (c) A/AC Hammond carefully considered the Appellant's submissions and weighed these against the objects and requirements of the Policy; -- 5 of 11 -- 6 (d) the Appellant did not demonstrate any exceptional or extenuating circumstances relating to him as an individual that justified the granting of an exemption and the correspondence from Kennedy Spanner Lawyers also did not identify any extenuating circumstances relating to the Appellant as an individual; (e) the Appellant did not provide any medical evidence which meant he was unable to be safely administer the current vaccines; (f) the Appellant being vaccine hesitant is not an exceptional circumstance and it is not incumbent on the Respondent to accept the Appellant's views regarding the safety and efficacy of the COVID-19 vaccination, particularly noting the weight of medical and scientific evidence is against him; (g) the Appellant has not been coerced nor deprived consent in respect to receiving a COVID-19 vaccine and remains free to not receive a COVID-19 vaccine. Further, it is within the Appellant's rights to decline to become vaccinated and the Appellant is not obliged to work for the Respondent; (h) the Appellant's role is an operational position which provides patient transport services to the Queensland community. It is not possible for the Appellant to fulfill the requirements of the role from home; and (i) the Appellant's human rights were considered throughout the exemption application process and it was determined that any limitation to the Appellant'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. [18] The Respondent submits that the Policy is based on the CHO directions regarding workers in healthcare settings and hospital entries. The Respondent submits that, as the CHO is the most senior medical officer in Queensland, the Policy is both lawful and reasonable and that once the CHO Direction relating to Workers in a healthcare setting (COVID-19 Vaccination requirements) was made, it was reasonable for the Respondent to determine and implement the Procedure and subsequent Policy to ensure compliance with the CHO Direction and to meet its duty of care to staff, patients and the public. [19] With respect to the Appellant's contention that the Respondent failed to undertake consultation or a risk assessment, the Respondent submits the following: QAS is part of the Department of Health. The Department complied with its obligations under the Work Health and Safety Act 2011 to consult in relation to the introduction of the vaccine mandate. The consultation included dedicated meetings with registered unions representing employees employed within the Department. Registered unions may negotiate with employers, not only on behalf of their members, but also on behalf of workers who are eligible for membership. Where registered unions agree with vaccine mandate 'consultation reached the level where the directive was not a matter of contention'.7 There is no lawful basis upon which Mr Doedens can request access to a risk assessment undertaken by QAS in relation to vaccines, and proof that he is a heightened risk of transmission. The COVID- 7 citing Brasell-Dellow & Ors v State of Queensland, (Queensland Police Service) & Ors [2021] QIRC 356. -- 6 of 11 -- 7 19 vaccinations have been approved by the TGA and the Australian Technical Advisory Group on Immunisation. The TGA's approval of relevant vaccines is a matter of public record and is evidence of their safety and efficacy. QAS was not required to provide Mr Doedens with assurances concerning the safety or efficacy of the COVID-19 vaccines, and was not required to do its own risk assessment of the vaccines. Appellant's submissions [20] In response, the Appellant submits, in summary, that: (a) it is absurd to rely on the fact that the CHO is the highest medical officer to support the claim that the Policy is reasonable; (b) the Respondent failed to provide any meaningful analysis on how the Appellant's religious beliefs were considered and explanation of the basis upon which the decision was made;8 (c) the Respondent has failed to give proper consideration to a human right in accordance with cl 5.1(e) of the Individual employee grievances Directive 11/20; (d) competing considerations of workplace and community safety should lawfully be weighed against the specific human rights which are relevant under the circumstances of the Appellant's case; (e) specific information was provided regarding the Appellant's religious beliefs and health along with documented evidence to verify the concerns; (f) the Appellant's circumstance is contrary to the case of Radev v State of Queensland (Queensland Police Service)9 in which the Respondent relies on as medical evidence has been documented in the Appellant's exemption application and the appeal; (g) the Appellant has received multiple vaccinations, proving that the Appellant is not 'vaccine hesitant'. The COVID-19 vaccines are novel vaccines that are still in their trial phase. Further, the lack of evidence of safety and efficacy for people who has diabetes indicates that the Appellant's decision to not receive a COVID-19 vaccine is not vaccine hesitancy but, rather, an exercise of the Appellant's non-derogable right to make an informed choice and an exercise of rights under the WHS Act; (h) the Appellant has repeatedly informed the Respondent that he was ready, willing and able to work; (i) the Appellant refutes the statement '…to protect the lives of employees, patients and the community…' as Queensland Health has allowed COVID-19 positive, vaccinated staff to return to work in response to critical staff shortages. The decision to allow COVID-19 positive staff to return to work nullifies all 'safety 8 citing Clark v State of Queensland (Queensland Health) [2022] QIRC 170 and Amaya v State of Queensland (Queensland Health) [2022] QIRC 117. 9 [2021] QIRC 414. -- 7 of 11 -- 8 justifications' in choosing to continue to exclude the Appellant and other unvaccinated staff from the workplace; (j) the Respondent appears more concerned with control and dominance of staff rather than the safety of staff or the wider community. As a consequence, there is obvious bias against the Appellant; and (k) the Appellant has been discriminated against because of his strongly held religious beliefs and health concerns. [21] The Appellant submits that several of the Respondent's submissions constitute errors of law, including that: (a) the Respondent is only approving exemptions under 'exceptional' circumstances, which constitutes and is evidence of bias and the presence of bias constitutes unfairness and as such, is an error of law; (b) the Respondent's statement that 'It is not incumbent on the Department to accept Mr Doedens views regarding the safety and efficacy of the COVID-19 vaccination' constitutes an error of law because of the Respondent's obligations under the WHS Act and the Work Health and Safety Regulation 2011 (Qld); (c) the Respondent's submissions regarding consent are affected by an error of law as consent is defined under sch 1 s 348 of the Criminal Code Act 1899 (Qld); and (d) the Respondent's submissions regarding consultation are affected by an error of law as consulting with unions does not qualify as adequate consultation and is a flawed argument. Consideration [22] Consideration of an appeal of this kind requires a review of the decision by A/AC Hammond to determine if the refusal of the Appellant's exemption application was fair and reasonable in the circumstances. [23] The exemption application form provides that employees may seek an exemption to the vaccination requirements set out in the Policy in circumstances where the employee has a recognised medical contraindication to the COVID-19 vaccine, where the employee has refused the COVID-19 on grounds of a genuinely held religious belief or other exceptional circumstances which preclude them from meeting the COVID-19 vaccine requirements. [24] The decision outlined that the Appellant applied for an exemption from compliance with the requirement to receive COVID-19 vaccinations on the basis of 'genuinely held religious belief' and 'other exceptional circumstance'. It appears that that the 'other exceptional circumstance' relates to the Appellant's medical issues and concerns regarding appropriate consultation. [25] The Appellant asserts that the decision is unreasonable on the basis that it has the potential to harm him directly and he was not provided with supporting evidence or -- 8 of 11 -- 9 documentation to address his concerns. I note that the Appellant did not provide medical evidence in support of his specific application for an exemption. The Respondent is not required to provide the Appellant with information addressing each and every one of his contentions. The Appellant is required to provide the Respondent with individual medical evidence in support of his contention that he is precluded from meeting the Policy requirements due to his medical condition. The Respondent is then required to consider such evidence in determining whether an exemption should be given. The Appellant's submission that his general practitioner advised that they were 'not allowed' to provide exemptions except for specific conditions and that he did not approach his Endocrinologist as he was aware of her pro-vaccination position would not reasonably constitute exceptional circumstances. The decision demonstrated consideration of the Appellant's concerns regarding his health condition however noted that the condition it is not a recognised medical contraindication precluding COVID-19 vaccination. In the absence of specific evidence pertaining to the Appellant's individual medical circumstances, it was open to the Respondent to deny the exemption application on the basis that no exceptional circumstances existed to warrant an exemption. [26] The Appellant states that there was a 'lack of appropriate consultation' and that he has not received a specific risk assessment for his role. There is no requirement that the Respondent provide an individual risk assessment to the Appellant. With respect to the submission regarding consultation, it appears that this relates to the Policy requiring QAS employees working in a healthcare setting to obtain COVID-19 vaccinations. The Respondent's consultation with registered unions representing members and employees eligible for membership satisfied the requirements of the WHS Act as determined in Brasell-Dellow & Ors v State of Queensland, (Queensland Police Service) & Ors.10 [27] The Appellant's submissions broadly outline his concerns regarding the safety and efficacy of the COVID-19 vaccines. I note the Appellant's submission that he is not 'vaccine hesitant' as demonstrated by his history of receiving vaccinations over his lifetime. It is, however, clear that the Appellant is hesitant to receive COVID-19 vaccines for both religious and medical reasons. Hesitancy to receive COVID-19 vaccination is not a ground for exceptional circumstances that would normally support an application for exemption. The decision addressed the Appellant's concerns regarding the safety of the COVID-19, stating: Please be advised that COVID-19 vaccines are not experimental. They 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)… [28] The Appellant asserts that the Respondent's statement that it is not incumbent upon them to accept the Appellant's views is an error of law. This submission is misconceived and I note that the Appellant does not identify any provision under the WHS Act that requires the Respondent to accept the Appellant's views. The Appellant also submits that the Australian Vaccination Handbook's requirement that informed consent be a lawful requirement of vaccination means that it is 'incumbent upon the QAS to accept' his views. This submission is similarly misconceived. As determined in Slykerman v State of Queensland (Queensland Health),11 the Policy was based upon the CHO's directions regarding workers in healthcare settings and is a lawful and reasonable direction by the 10 [2021] QIRC 356. 11 [2022] QIRC 039. -- 9 of 11 -- 10 employer. Whilst the requirements of procedural fairness must be adhered to, there is no requirement for the Respondent to accept the views of the Appellant. [29] The Appellant submits that the Respondent has used 'coercive pressure' to require him to become vaccinated. It is entirely a matter for the Appellant to determine if he consents to vaccination, and the decision to deny an exemption does not deprive him of his right to refuse to be vaccinated. There may well be implications for the Appellant's employment, however the decision as to whether to obtain a vaccination remains with the Appellant. [30] The Appellant submits that he is willing and able to undertake alternative duties remotely, however his position as a Patient Transport Officer requires that he provides patient transport service to and from hospitals and other facilities. In these circumstances, it was reasonable for the Respondent to conclude that the Appellant is unable to fulfill the requirements of his role remotely. [31] The Appellant submits that the process has been affected by bias but provides no evidence in support of this contention. The Policy provides that exemption applications will be considered for a recognised medical contraindication to the COVID-19 vaccines, a genuinely held religious belief or other exceptional circumstances, with the decision maker applying this criteria fairly to the Appellant's application. An adverse result to the application does not indicate bias. [32] The Appellant did not press the ground of 'genuinely held religious belief' in the appeal notice, however provided submissions on this issue. The Respondent reasonably determined that the Appellant's religious beliefs had been balanced against the purposes of the Policy and it was determined that these beliefs did not outweigh the purposes of the vaccine requirements prioritising the health and safety of QAS staff and the community. The cases referred to by the Appellant of Clark v State of Queensland (Queensland Health)12 and Amaya v State of Queensland (Queensland Health)13 are not analogous to this matter as they involved decisions that did not address the ground upon which the exemption was sought. I am satisfied that the decision in this matter adequately addressed the Appellant's ground of 'genuinely held religious belief' in determining that it did not outweigh the purposes of the vaccine requirements. [33] The decision recognised that consideration had been given to the Appellant's human rights by acknowledging that the decision to refuse exemption engaged a number of human rights including the right to freedom of thought, conscience, religion and belief and right to freedom of expression. Mr Clarke's decision stated: I am also satisfied that my decision to refuse your exemption application is compatible with human rights. While this decision engages a number of your human rights, including your right to freedom of thought, conscience, religion and belief and your right to freedom of expression, I am satisfied that any limits on the human rights engaged 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 purpose of protecting your colleagues, and people accessing health services from the risk of COVID-19 through vaccination promotes their human rights to life and health, as well as your own… 12 [2022] QIRC 170. 13 [2022] QIRC 117. -- 10 of 11 -- 11 [34] The decision of A/AC Hammond then stated: As previously advised to you by Mr Clarke, 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 meet the vaccination requirements of their role, as outline within the QAS HR Policy, unless certain extenuating circumstances apply and an exemption is granted. [emphasis added] [35] The decision notes that the refusal of the Appellant's exemption application does not compel a person to be vaccinated, rather it imposes employment consequences if an exemption has not been granted and the Policy is not followed. The decision that the Appellant's human rights had been considered appropriately was open to the Respondent. [36] The relevant principles in considering whether a decision is 'unreasonable' were outlined by Ryan J in Gilmour v Waddell & Ors:14 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.15 [37] 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 decision confirming the decision not to grant the Appellant an exemption under the Policy was fair and reasonable. [38] I order accordingly. Order Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed. 14 [2019] QSC 170. 15 Ibid [207]-[209]. -- 11 of 11 --