Brew v State of Queensland (Queensland Health) [2022] QIRC 259

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Brew v State of Queensland (Queensland Health) [2022] QIRC 259 PARTIES: Brew, Elizabeth Fay (Appellant) v State of Queensland (Queensland Health) (Respondent) CASE NO: PSA/2022/529 PROCEEDING: Public Service Appeal – Disciplinary Decision DELIVERED ON: 5 July 2022 MEMBER: HEARD AT: McLennan 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 – appeal against a disciplinary finding – where respondent alleges that appellant did not comply with Health Employment Directive No. 12/21 – where allegations substantiated – where appellant did not obtain an exemption from complying with Directive 12/21 –whether appellant has provided a fair and reasonable excuse for non-compliance – where decision is fair and reasonable LEGISLATION & OTHER INSTRUMENTS: Australian Constitution s 51, s 109 Industrial Relations Act 2016 (Qld) s 451, s 562B, s 562C, s 563 -- 1 of 14 -- 2 CASES: Public Service Act 2008 (Qld) s 187, s 188, s 194 Health Employment Directive No. 12/21 cl 6, cl 7, cl 8, cl 10, cl 14 Brasell-Dellow & Ors v State of Queensland, (Queensland Police Service) & Ors [2021] QIRC 356 Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018) Graffunder v State of Queensland (Queensland Health) [2022] QIRC 076 Gundrum v State of Queensland (Queensland Health) [2022] QIRC 226 Higgins v State of Queensland (Queensland Health) [2022] QIRC 030 Hutchison v State of Queensland (Queensland Health) [2021] QIRC 317 Kathryn Roy-Chowdhury v The Ivanhoe Girls' Grammar School [2022] FWC 849 Tilley v State of Queensland (Queensland Health) [2022] QIRC 2 Reasons for Decision Introduction [1] Ms Elizabeth Brew ('the Appellant') is employed on a casual basis as an Oral Health Therapist HP3 at Gladstone Oral Health by Central Queensland Hospital and Health Service, State of Queensland (Queensland Health) ('the Respondent').1 [2] The Health Employment Directive No. 12/21 (Directive 12/21) mandates, inter alia, that particular groups of health service employees must receive the COVID-19 vaccination.2 This appeal concerns the Appellant's alleged failure to comply with Directive 12/21. 1 Appeal Notice, 22 April 2022, 1; Appellant's Submissions, 6 May 2022. 2 Health Employment Directive No. 12/21 cls 1, 7-8. -- 2 of 14 -- 3 [3] Directive 12/21 became effective from 11 September 2021.3 [4] Relevantly, cl 8 of Directive 12/21 provides the following: 8.1 Existing employees currently undertaking work or moving not a role undertaking work listed in a cohort of Table 1, must: a. have received at least the first dose of a COVID-19 vaccine by 30 September 2021; and b. have received the second dose of a COVID-19 vaccine by 31 October 2021. An existing employee must provide to their line manager or upload into the designated system: a. evidence of vaccination confirming that the employee has received at least the first dose of a COVID-19 vaccine by no later than 7 days after receiving the vaccine. b. Evidence of vaccination confirming that the employee has received the second dose of a COVID-19 vaccine by no later than 7 days after receiving the vaccine. … The requirements of this clause 8 do not apply to existing employees who have been granted an exemption under clause 10 of this HED. [5] The Respondent categorised the Appellant's role as falling within "Group 2" under cl 7.1 of Directive 12/21 which covers employees who work in a hospital or other facility where clinical care or support is required.4 [6] On 30 September 2021, the Appellant applied for an exemption to the mandatory vaccination requirements because of "other exceptional circumstances" under cl 10.2 of Directive 12/21.5 [7] On 12 January 2022, the Respondent advised the Appellant of its decision to refuse her exemption application.6 The Appellant did not request a review of the decision to refuse her exemption application, despite having the opportunity to do so.7 [8] On 3 February 2022, the Appellant was asked to show cause as to why a disciplinary finding should not be made against her under the Public Service Act 2008 (Qld) ('the PS Act') in relation to the following allegations ('Show Cause Notice'): i. In contravention of a direction given to you by a responsible person, you have not received the required doses of a COVID-19 vaccine by 31 October 2021. … 3 Ibid 1. 4 Respondent's Submissions, 13 May 2022, 1 [7]. 5 Ibid [8]. 6 Ibid 2 [10]. 7 Ibid [11]. -- 3 of 14 -- 4 ii. In contravention of a direction given to you by a responsible person, you have not provided evidence confirming that you have received the required doses of a COVID-19 vaccine, within the required timeframe. ('Allegation One' and 'Allegation Two') [9] The Appellant was afforded a period of 14 days to provide a response to the Allegations.8 [10] On 2 March 2022, the Appellant responded to the Show Cause Notice. [11] On 8 April 2022, Ms Shareen McMillan9 (the decision-maker) advised the Appellant in written correspondence that she determined both Allegations are substantiated on the balance of probabilities and that grounds for discipline existed under s 187(1)(d) of the PS Act ('the Disciplinary Decision'). The decision-maker also advised she was considering whether disciplinary action should be taken against the Appellant under s 188 of the PS Act and proposed the disciplinary action of "termination of your employment". The Appellant was afforded a period of seven days to show cause why the proposed disciplinary action should not be taken.10 [12] On 22 April 2022, the Appellant filed an appeal with the Industrial Registry. Jurisdiction [13] In her Appeal Notice, the Appellant has indicated she is "appealing a disciplinary declaration made in relation to my former employment with a Department/Agency." However, I have not been able to discern from the written material that a "disciplinary declaration" has been made nor that the Appellant has been terminated from her employment arrangement such that the Respondent is her "former" employer. [14] Section 194 of the PS Act identifies the categories of decisions against which an appeal may be made. Section 194(1)(b)(i) of the PS Act provides that an appeal may be made "against a decision under a disciplinary law to discipline – a person (other than by termination of employment), including the action taken in disciplining the person." [15] In her Appeal Notice, the Appellant states, "I appeal the decision to possibly terminate my employment because I am not vaccinated."11 [16] The Appellant's characterisation of the decision as being to "possibly terminate" her employment, is correct – the disciplinary action of termination has been proposed as a possibility, not determined. The Disciplinary Decision clearly states, "In accordance with 8 Letter from Ms S. McMillan to the Appellant, 3 February 2022, 4. 9 Executive Director, Workforce Division, Central Queensland Hospital and Health Service. 10 Letter from Ms S. McMillan to the Appellant, undated. 11 Appeal Notice, 22 April 2022, 4. -- 4 of 14 -- 5 the principles of natural justice, no final determination of the disciplinary action to be taken has been made, or will be made, until you have had the opportunity to respond."12 [17] In Graffunder v State of Queensland (Queensland Health) ('Graffunder'),13 I concluded that correspondence constituting a show cause notice or pertaining to proposed disciplinary action is not capable of being appealed.14 [18] In Hutchison v State of Queensland (Queensland Health) ('Hutchison'), Industrial Commissioner Pidgeon concluded: [93] There is no question that the proposed disciplinary action is not a decision that can be appealed. [94] With regard to the decision to commence a disciplinary process, s 195 of the PS Act sets out Decisions against which appeal cannot be made. Relevantly, it states that a person cannot appeal against a fair treatment decision made under chapter 6, part 2, other than a finding under s 187 that a disciplinary ground exists for the person. [95] Chapter 6, part 2 of the PS Act deals with disciplinary action for public service employees and former public service employees. Section 192A deals with directives about disciplinary action and investigating grounds for discipline and grievances. The relevant Directive to this matter states that the employee has appeal rights with regard to the disciplinary finding or the disciplinary decision. [96] In my view, the decision to commence a disciplinary process is not capable of being appealed, though it is clear that considerations of whether the proper process is followed in disciplinary matters can impact on whether a disciplinary finding or decision is fair and reasonable.15 [19] As in Graffunder, I agree with the reasoning in Hutchison and note the same conclusion was reached in Higgins v State of Queensland (Queensland Health).16 [20] Nevertheless, out of an abundance of fairness to the Appellant, I will proceed to determine this matter as an appeal against the disciplinary findings contained within the Disciplinary Decision (i.e., the findings that the Allegations are substantiated) which has consequently led to the proposed disciplinary action of termination. [21] The Appellant has been an employee of the Respondent at all times relevant to this appeal. [22] I am satisfied that the Disciplinary Decision as it pertains to the disciplinary findings only, can be appealed. 12 Letter from Ms S. McMillan to the Appellant, April 2022, 3. 13 [2022] QIRC 076, 5 [19]. 14 Ibid. 15 [2021] QIRC 317. 16 [2022] QIRC 030, 5 [15]. -- 5 of 14 -- 6 Timeframe to Appeal [23] Section 564(3) of the Industrial Relations Act 2016 (Qld) (the IR Act) requires that an appeal be lodged within 21 days after the day the decision appealed against is given. [24] The Disciplinary Decision was given to the Appellant on 8 April 2022 and the Appeal Notice was filed with the Industrial Registry on 22 April 2022. Therefore, I am satisfied that the Appeal Notice was filed by the Appellant within the required timeframe. Submissions [25] The parties filed written submissions in accordance with the Directions Order issued on 29 April 2022. Pursuant to s 451(1) of the IR Act, this matter has been decided on the papers. [26] I have carefully considered all submissions and materials. I have determined not to approach the writing of this decision by summarising the entirety of those submissions and attachments but will instead refer to the parties' key positions in my consideration of the appeal. What decisions can the Commission make? [27] In deciding this appeal, s 562C of the IR Act provides that the Commission may: • confirm the decision appealed against; • set the decision aside and substitute another decision; or • set the decision aside and return the matter to the decision-maker with a copy of the decision on appeal and any directions considered appropriate. Appeal principles [28] Section 562B(3) of the IR Act provides that the purpose of a public service appeal is "to decide whether the decision appealed against was fair and reasonable."17 This is the key issue for my determination. [29] A public service appeal under the IR Act is not by way of rehearing,18 but involves a review of the decision arrived at and the decision–making process associated therewith. 17 Industrial Relations Act 2016 (Qld) s 562B(3). 18 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 of 14 -- 7 [30] Findings made by the Respondent, which are reasonably open to it, should not be disturbed on appeal. [31] For the reasons contained herein, I have found that the Disciplinary Decision was fair and reasonable. Relevant legislation [32] Section 187 of the PS Act sets out the grounds for discipline and disciplinary action. The relevant section is extracted below: 187 Grounds for discipline (1) A public service employee's chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has— … (d) contravened, without reasonable excuse, a direction given to the employee as a public service employee by a responsible person; or … [33] Directive 12/21 sets out the mandatory vaccination requirements for all existing employees at cl 8.1 as extracted at [4] above. The Disciplinary Decision [34] The Disciplinary Decision relates to the Allegations extracted at [8] above. [35] The decision-maker advised the Appellant that Allegation One had been substantiated and provided the following reasons for the decision: • You have not provided evidence to suggest that you are willing to comply with the requirements of the Directive. • You do not have an approved exemption. • You have not provided any response to the allegation, nor any information which leads me to believe that you have met the requirements of the Health Employment Directive No 12/21 Employee COVID-19 vaccination requirements (HED 12/21). • The nature of the discipline matter is serious and your failure to comply with the Directive means that you are unable to fulfil your employment contract with the Health Service.19 [36] The decision-maker advised the Appellant that Allegation Two had been substantiated and provided the following reasons for the decision: I have carefully considered all the material before me including your submissions and I have determined that Allegation two is substantiated on the balance of probabilities on the basis that you 19 Letter from Ms S. McMillan to the Appellant, April 2022, 2-3. -- 7 of 14 -- 8 have not provided any evidence to confirm that you have received the prescribed number of doses of a COVID-19 vaccine.20 [37] With respect to both Allegations, the decision-maker determined that the Appellant had contravened, without reasonable excuse, a direction given to her as a health service employee by a responsible person, pursuant to s 187(1)(d) of the PS Act.21 That is, the directions given under cl 8.1 of Directive 12/21.22 Whether the Disciplinary Decision was fair and reasonable [38] In determining whether the Disciplinary Decision was fair and reasonable, I will consider the following: • whether directions were given to the Appellant by a responsible person; • whether the Appellant contravened the directions; • whether the Appellant had a reasonable excuse to contravene the directions; and • whether the decision-maker could be reasonably satisfied of the abovementioned factors. The direction [39] I find the Department issued directions to the Appellant in the terms of cl 8.1 of Directive 12/21. [40] Directive 12/21 was issued by the Director-General under s 51A of the Hospital and Health Boards Act 2011 (Qld) as a condition of employment for health service employees.23 Section 51A(1) and (3) empowers the chief executive to "issue health employment directives about the conditions of employment for health service employees" applicable to any or all health service employees. [41] Directive 12/21 was approved by Chief Executive and Director-General, Dr John Wakefield and I am satisfied that he is a responsible person for the purpose of s 187(1)(d) of the PS Act. [42] I am satisfied Directive 12/21 is applicable to the Appellant as an employee falling under "Group 2" pursuant to cl 7.1. 20 Letter from Ms S. McMillan to the Appellant, April 2022, 3. 21 Ibid 2-3. 22 Ibid. 23 Health Employment Directive No. 12/21 cl 14. -- 8 of 14 -- 9 [43] The Appellant was specifically directed to receive the first dose of a COVID-19 vaccination by 30 September 2021 and the second dose by 3 October 2021. The Appellant was also directed to provide evidence of vaccination to her line manager or upload evidence of vaccination into the designated system within seven days after receiving the vaccination. Contravention [44] It is not controversial that the Appellant did not receive the COVID-19 vaccination and did not provide evidence in accordance with cl 8.1 of Directive 12/21. Further, the Appellant was not granted an exemption from complying with Directive 12/21 pursuant to cl 10 of Directive 12/21. [45] On that basis, I am satisfied the Appellant contravened the directions given to her under Directive 12/21. Reasonable excuse [46] The Appellant's contentions with respect to the reasonableness of the Disciplinary Decision broadly fall under the following themes: • the Appellant has not been shown "a written law" that requires vaccination apart from Directive 12/21; • the health service is in crisis and the Appellant is willing to work; • the Appellant is no more at risk of developing or spreading COVID-19 than a vaccinated person; • while the Appellant's exemption application was being considered, she was still able to work; • the Appellant adheres to various hygiene requirements; • the Appellant is not opposed to the vaccination, but is not willing to receive the vaccination until long term studies have been completed, independently reviewed and published; • information available brings the efficacy of the vaccination into question; • the Department has not advised of ongoing requirements to maintain vaccination status; • there is no testing to determine the Appellant's level of immunity; -- 9 of 14 -- 10 • there is no information with respect to what responsibility the Department would take in the event of an adverse reaction;24 • coercion and bullying; • the Appellant has asked many questions of the Respondent which remain unanswered; • in the last two years, the Appellant required surgery for bowel cancer and she has Hashimoto's disease – the Appellant has no desire to upset the balance she has managed to achieve; • there are off-label drugs available to treat the conditions associated with COVID- 19; • the Appellant outlined various research she had undertaken; • the Australian Capital Territory have revoked vaccination mandates; • the Appellant is willing to undergo regular RAT testing; • discrimination; • violation of medical privacy; • the Appellant makes various requests with respect to the mandate;25 • the required duty of consultation has not been met under the Work Health and Safety Act 2011 (Qld); • risk assessment not completed; • consent; • human rights;26 and • inconsistencies with the Australian Constitution. 24 Appeal Notice, 22 April 2022, 4. 25 Appellant's Submissions, 6 May 2022. 26 Letter from the Appellant to Ms M. Plath, 30 September 2021. -- 10 of 14 -- 11 [47] The Appellant's written submissions and the material considered by the decision-maker clearly indicate the Appellant holds reservations about being administered the COVID- 19 vaccination and is therefore hesitant to comply with Directive 12/21. [48] Vaccine hesitancy is not a reasonable excuse for contravening Directive 12/21. [49] The Appellant's submissions largely pertain to a fear of adverse reactions, conflicting medical research and the Appellant's medical history. Through the exemption application process, the Appellant was afforded the opportunity to present any medical contraindications as verified by a medical professional for the Department's consideration. However, the Appellant did not apply for an exemption on that basis. In the absence of a certified medical contraindication to the COVID-19 vaccination, I find it was fair for the decision-maker to conclude that the Appellant did not have a reasonable excuse for non-compliance with Directive 12/21. [50] With respect to the legality of Directive 12/21, Directive 12/21 was issued by the Director-General under s 51A of the Hospital and Health Boards Act 2011 (Qld) as a condition of employment for health service employees.27 Section 51A(1) and (3) empowers the chief executive to "issue health employment directives about the conditions of employment for health service employees". As a result of the implementation of Directive 12/21, mandatory vaccination requirements became a condition of the Appellant's employment. Failure to comply with that condition has resulted in consequences. There is no requirement that there be a "written law" prescribed in addition to Directive 12/21 and I am satisfied that the approval and implementation of Directive 12/21 was authorised under the Hospital and Health Boards Act 2011 (Qld). [51] With respect to the Appellant's arguments regarding risk assessments and consultation, I refer to Industrial Commissioner Dwyer's decision in Gundrum v State of Queensland (Queensland Health) ('Gundrum'), where he concluded:28 [37] The submissions regarding risk assessment, consultation, and his contract of employment are, with all due respect to Mr Gundrum, rather stale. They have been run repeatedly by other litigants in similar or the same circumstances to Mr Gundrum and they have failed repeatedly.29 [38] An obligation for a duty holder (like the Health Service) to undertake a risk assessment under the Work Health and Safety Act 2011 (Qld) does not, of itself, create a right by an employee to demand a documented copy of that risk assessment. In any event, Covid vaccine safety has been evaluated and confirmed as safe by the Australian Technical Advisory Group on Immunisation ('ATAGI') and as such there is no reasonable basis for Mr Gundrum to demand a risk assessment or complain he did not receive one. The approval of vaccines for use by a federal authority such as ATAGI ought to assuage any concerns.30 27 Health Employment Directive No. 12/21 cl 14. 28 [2022] QIRC 226. 29 See as but one example the decision of the Full Bench in Brasell-Dellow & Ors v State of Queensland, (Queensland Police Service) & Ors [2021] QIRC 356. 30 ATAGI is the principal advisor to government on inter alia vaccine safety. See also Kathryn Roy-Chowdhury v The Ivanhoe Girls’ Grammar School [2022] FWC 849 at [103]. -- 11 of 14 -- 12 … [40] Similarly, the arguments about lack of consultation also must fail. It was held by the Full Bench of the Commission that consultation may legitimately be conducted with registered unions through representatives rather than individuals in a large workforce…31 [52] I follow Industrial Commissioner Dwyer's reasoning in Gundrum as extracted above. [53] The Appellant also presented her own research to the Respondent throughout this process. The Respondent noted the COVID-19 vaccinations have been approved for use through the Therapeutic Goods Administration approval process and the Australian Technical Advisory Group on Immunisation as well as in adherence to advice from the Queensland Chief Health Officer.32 I accept that adhering to such advice is reasonable and appropriate in comparison to the research submitted by the Appellant. [54] The Appellant has had significant time to discuss any concerns with a medical professional who could have provided her with expert guidance and if appropriate, issued a letter outlining a medical contraindication warranting exemption. The Appellant has not provided such evidence and I find that her opinion with respect to the medical evidence simply differs from that of the Respondent. [55] The Appellant also argued that the health service is in crisis and the Appellant is willing to work. That argument indicates to me that the Appellant does not understand the significant risk the COVID-19 virus carries and how it disproportionately affects healthcare workers connected to patients and the broader community. The Appellant did not provide any evidence of a crisis, but even if that were the case, the Department has clearly assessed that the risk of unvaccinated healthcare workers is too significant. The fact the Appellant is "willing" to return to work in these circumstances, is respectfully beside the point. [56] The Appellant referred to several hygiene measures that she is prepared to comply with instead of receiving the COVID-19 vaccination. However, the measures proposed should supplement the requirements under Directive 12/21, not replace those requirements. It is simply not operationally feasible for the Respondent to trust each individual employee to implement and undertake precautionary measures at their own election and on their own accord instead of following Directive 12/21. [57] The Appellant contends that s 109 of the Australian Constitution renders Directive 12/21 inoperable.33 Based on the plain reading of s 109 of the Australian Constitution, that argument is untenable. The Appellant has not identified a relevant law of the Commonwealth and therefore I cannot discern which laws she is alleging there is an 31 Brasell-Dellow & Ors v State of Queensland, (Queensland Police Service) & Ors [2021] QIRC 356, [124]-[128]. 32 Respondent's Submissions, 13 May 2022, 3 [22]. 33 Letter from the Appellant to Ms S. McMillan, undated. -- 12 of 14 -- 13 inconsistency between. I do not accept that a law of a State is inconsistent with a law of the Commonwealth that does not exist. On that basis, I find the Appellant's arguments with respect to the Australian Constitution do not constitute a reasonable excuse for non- compliance with the Policy. [58] I find that the other matters, referred to above as raised by the Appellant, form the basis of her personal preference not to receive the COVID-19 vaccination. I am not convinced that that the matters relied on by the Appellant result in Directive 12/21 being unreasonable or unlawful. In this regard, cl 6 of Directive 12/21 identifies that COVID- 19 has been shown to disproportionately affect healthcare workers and health support staff and poses a significant risk to Queensland Health patients, and the broader community. In light of those risks, Directive 12/21 requires health service employees who are identified as being in high risk groups to be vaccinated against COVID-19. I consider that to be reasonable. [59] As Industrial Commissioner Hartigan concluded in Tilley v State of Queensland (Queensland Health): Whilst Mr Tilley clearly has a personal view with respect to the vaccines and relies on information that purportedly supports his view, it is not encumbent upon the Department to accept Mr Tilley's view. The information proffered by Mr Tilley does not persuade me that Directive 12/21 was not reasonable and lawful.34 [60] I agree with that conclusion. Reasonable satisfaction [61] The Appellant was given notice about the requirements to comply with Directive 12/21 on several occasions. Once in force, the requirements of cl 8.1 of Directive 12/21 became a condition of the Appellant's employment. The Appellant did not obtain an exemption pursuant to cl 10 of Directive 12/21 and did not appeal the refusal either. Accordingly, I consider that it was open on the evidence before the decision-maker to find that Allegation One and Allegation Two are substantiated. [62] In terms of the process, the Appellant was advised of the Allegations and provided with an opportunity to respond. I consider that the decision-maker did have regard to the Appellant's written response before determining that the Allegations were substantiated. [63] Further, the Appellant's submissions indicate she does not intend to comply with the condition in the immediate future. 34 [2022] QIRC 002, 13 [39]. -- 13 of 14 -- 14 Conclusion [64] I have reviewed the Disciplinary Decision and conclude it was fair and reasonable for the decision-maker to conclude the Appellant had contravened, without reasonable excuse, directions given to her as a Department employee by a responsible person, pursuant to s 187(1)(d) of the PS Act. [65] For the above reasons, I consider that the Disciplinary Decision and the decision-making process was fair and reasonable. [66] I order accordingly. Order Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed. -- 14 of 14 --