Amos v State of Queensland (Queensland Health) [2022] QIRC 197

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Amos v State of Queensland (Queensland Health) [2022] QIRC 197 PARTIES: Amos, Andrew (Appellant) v State of Queensland (Queensland Health) (Respondent) CASE NO.: PSA/2022/298 PROCEEDING: Public Service Appeal - Fair treatment decision DELIVERED ON: 23 May 2022 HEARING DATE: MEMBER: HEARD AT: 23 May 2022 Merrell DP Brisbane DATES OF WRITTEN SUBMISSIONS: Appellant's written submissions filed on 28 March 2022 and Respondent's written submissions filed on 3 May 2022 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 - Appellant employed on a part-time basis by the State of Queensland as Director of Training, Psychiatry, North Queensland at the Townsville Hospital Health Service - cl 8 of the Health Employment Directive No. 12/21 - Employee COVID-19 vaccination requirements requires existing employees, who are employed to work in a hospital or other facility where clinical care or support is provided, to have received at least a first dose of a COVID-19 vaccine by 30 September 2021 and a second dose of a COVID-19 vaccine by 31 October 2021 unless exempted - Appellant refused to be vaccinated - -- 1 of 13 -- 2 Appellant invited to show cause why a disciplinary finding should not be made against him in relation to the allegation he did not comply with the direction that he receive a second dose of a COVID-19 vaccine by 31 October 2021 - Appellant submitted show cause response - disciplinary finding decision that the allegation was substantiated - whether disciplinary finding decision was fair and reasonable - disciplinary finding decision was fair and reasonable - disciplinary finding decision confirmed LEGISLATION: Health Employment Directive No. 12/21 - Employee COVID-19 vaccination requirements, cl 7, cl 8 and cl 10 Hospital and Health Boards Act 2011, s 51A Industrial Relations Act 2016, s 28, s 562B and s 562C CASES: APPEARANCES: Graffunder v State of Queensland (Queensland Health [2022] QIRC 076 Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203; (2020) 305 IR 311 Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; (2015) 256 CLR 104 Radev v State of Queensland (Queensland Police Service) [2021] QIRC 414 Sunny v State of Queensland (Queensland Health) [2022] QIRC 119 The Appellant in person. Ms R. Verran of the Townsville Hospital and Health Service, for the State of Queensland (Queensland Health). -- 2 of 13 -- 3 Reasons for Decision (ex tempore) Introduction and background [1] Dr Andrew Amos is employed by the State of Queensland as Director of Training - Psychiatry - North Queensland in the Townsville Hospital and Health Service ('the Health Service'). Dr Amos is employed through Queensland Health ('the Department'). [2] Dr John Wakefield, the Chief Executive of the Department, pursuant to s 51A(1) of the Hospital and Health Boards Act 2011, approved, with effect from 11 September 2021, Health Employment Directive No. 12/21 - Employee COVID-19 vaccination requirements ('the Directive'). [3] The combined effect of cls 7 and 8 of the Directive is that employees who are employed to work in a hospital or other facility, where clinical care or support is provided, had to provide to their line manager, or upload into the designated system, evidence that they had received the first dose of a COVID-19 vaccine by 30 September 2021 and that they had received the second dose of a COVID-19 vaccine by 31 October 2021. [4] By cl 10 of the Directive, an employee is not required to be so vaccinated if they are granted an exemption because the employee has a recognised medical contraindication, has a genuinely held religious belief or where '… another exceptional circumstance exists.' [5] By email dated 16 September 2021, Dr Amos informed Dr Jason Lee, Medical Director, Mental Health Service Group ('MHSG') of the Health Service, and Dr Jimsie Cutbush, State-wide Royal Australian and New Zealand College of Psychiatrists ('RANZCP'), Director of Training, that he would not be getting vaccinated as required by the Directive. Dr Amos informed Dr Lee and Dr Cutbush that the reasons he would not be getting vaccinated were that he viewed '… the whole approach to coronavirus as a series of breaches of the social contract and an unwarranted limitation of my human rights, of which the HED is just the latest example', that the Directive demonstrated bad faith and that the Directive was also legally invalid. [6] By further email dated 20 September 2021, Dr Amos informed Dr Lee and Dr Cutbush that after examining the material provided to him by the Department, he would not be able to attend for work after 30 September as he did not appear to qualify for an exemption. Dr Amos further informed Dr Lee and Dr Cutbush that upon his review of the literature, there was no rationale for the vaccine mandate in that vaccines were not an effective intervention for preventing transmission of coronavirus in the workplace. [7] By letter dated 14 October 2021, the Health Service's Human Resources ('HR') Enquiry Team informed Dr Amos that, in accordance with the Directive, he was required to have received at least a first dose of a COVID-19 vaccine by 30 September 2021 and to provide evidence of such vaccination; and that it appeared, based on his records, that as of 14 October 2021, he had not provided the required evidence of such vaccination. [8] By letter dated 22 October 2021, Dr Amos was advised by the Health Service's HR Enquiry Team that if he did not provide evidence of receiving his first dose of a -- 3 of 13 -- 4 COVID-19 vaccine by 1 November 2021, or if he did not have an approved exemption, he may be subject to discipline. Dr Amos provided no such evidence. [9] By letter dated 26 October 2021, Ms Sharon Kelly, the Health Service's Acting (later Interim) Executive Director, Human Resources and Engagement, responded to earlier correspondence from Dr Amos in which he raised questions about, amongst other matters, the validity of the Directive. In that letter, Ms Kelly stated that Dr Amos had been absent from the workplace since 1 October 2021 and had not applied to access leave entitlements to cover that period. Further, Ms Kelly stated: In circumstances where: • you are not undertaking your role; • you have not submitted an exemption application; • you have not applied to access your leave entitlements; • you have not applied for flexible work arrangements; and • you have not been administratively suspended or stood down; your absence is unauthorised, and you are not entitled to continue to receive a salary. We will therefore begin to take steps to inform Payroll that you are on unauthorised leave without salary. If you would like to access your leave entitlements, please advise your line manager. [10] By letter dated 29 October 2021, the Health Service's HR Enquiry Team advised Dr Amos that if he failed to comply with the Directive, namely, that he receive at least a first dose of a COVID-19 vaccine by 30 September 2021 and provide evidence of such vaccination by 12.01 am on 1 November 2021, or have an approved exemption, he may be subject to disciplinary action. [11] By letter dated 15 November 2021 from Ms Kelly, Dr Amos was informed that he was required to show cause as to why a disciplinary finding should not be made against him. The allegation made against Dr Amos was that, in contravention of a direction given to him by a responsible person, he did not receive his second dose of a COVID-19 vaccine by 31 October 2021 ('the allegation'). Full particulars of the allegation were given to Dr Amos in Ms Kelly's letter dated 15 November 2021. [12] Dr Amos responded by letter dated 26 November 2021 in which he stated that a disciplinary finding should not be made against him because: a) the Human Rights Act 2019 required any such directive, like the Directive, to use the least restrictive means to achieve the goal; b) on 3 November 2021, after consultation with Dr Lee and Ms Ann Marie Mallett, Director of the MHSG of the Health Service, his application to work from home with no conditions, qualifications or reservations, was approved, which confirmed the feasibility of him completing his role without attending the workplace; and c) as a result, he did not fall within any of the groups listed under cl 7 of the Directive, the Directive did not apply to him and the least restrictive means for achieving the -- 4 of 13 -- 5 goal of reducing the risk of workplace transmission of COVID-19 was to allow him to work from home, reducing the risk to zero. [13] By written decision dated 28 January 2022, Ms Kelly informed Dr Amos that she determined that the allegation was substantiated ('the decision'). [14] By appeal notice filed on 18 February 2022, Dr Amos, pursuant to ch 7, pt 1 of the Public Service Act 2008 ('the PS Act'), appealed against the decision. [15] The purpose of an appeal pursuant to ch 7, pt 1 of the PS Act is to determine whether the decision appealed against was fair and reasonable.1 The issue for determination in such an appeal is whether the decision appealed against was fair and reasonable.2 The decision [16] In the decision, Ms Kelly found that: a) as a Health Service employee, employed under the Hospitals and Health Boards Act 2011, Dr Amos was bound by the provisions of the Directive which required Health Service employees identified as being in high-risk groups to be vaccinated against COVID-19; b) all employees who were employed to work in the cohorts categorised in cl 7.1 of the Directive were required to be vaccinated as a condition of employment and Groups 2 and 3, referred to in that paragraph, include employees who were employed to work or attend at a hospital or other facility where clinical care or support is provided;3 c) it was her assessment, after consideration of the advice provided by Dr Amos' line manager, Dr Lee, and after consultation with Dr Cutbush and Ms Mallett, that he (Dr Amos) fell within cl 7.1 of the Directive; 1 Industrial Relations Act 2016 s 562B(3). 2 Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203; (2020) 305 IR 311, [4]-[7]. 3 Clauses 7 of the Directive relevantly provides: 7. Requirement for vaccination 7.1 In acknowledgment of the risks posed by the COVID-19 virus to the health and safety of Queensland Health employees, patients and the broader community, clauses 8 and 9 of this HED require all existing and prospective employees who are or are to be employed to work in the cohorts as categorised in accordance with Table 1 (below), to be vaccinated as a condition of employment, subject to certain limited exemptions described in clause 10 of this HED. The cohort comprising Group 2 was described, in part, as: All health service employees who are employed to work in a hospital or other facility where clinical care or support is provided. The cohort comprising Group 3 was described, in part, as: All other health service employees who are employed in roles that require attendance at a hospital or other facility where clinical care or support is provided. -- 5 of 13 -- 6 d) the Flexible Work Arrangement ('the FWA') entered into between Dr Amos and the Department, whereby Dr Amos could perform his duties from home, was not envisaged to be a long-term arrangement, it was approved pending the outcome of '… the HED 12/21 process', was subject to review, and it did not provide Dr Amos with a reasonable excuse to avoid the requirements of the Directive; e) the limitation on Dr Amos' rights, brought about by the Directive, under the Human Rights Act 2019, was reasonable and justified by the need to ensure compliance with the Directive and that she considered that there was no less restrictive means, noting that the FWA was not permanent, other than vaccination which would sufficiently ensure the safety of him, other staff members and patients, as well as ensuring the ongoing readiness of the health system to respond to the pandemic; and f) given that Dr Amos had not provided the required evidence confirming that he had received the prescribed dose of vaccine and did not have an approved exemption, the allegation was substantiated and a disciplinary ground existed, namely, that Dr Amos had contravened, without reasonable excuse, a direction given to him as a Health Service employed by a responsible person. [17] In her reasons, Ms Kelly found that Dr Amos fell within cl 7.1 of the Directive. Ms Kelly stated that this was because Dr Amos was: [E]mployed to work and/or attend a hospital or other facility where clinical care or support is provided. By way of summary, your Townsville Hospital and Health Service (Townsville HHS) role which includes the RANZCP Director of Training (DOT) responsibilities involve, in respect of: - Trainees: pastoral care; monitor progress, liaise with services and educational partners regarding trainee issues and support trainees. - Supervisors: support. - Clinical facilities: maintaining relationships; ensure appropriate modifications to training are made, ensure each site is aware of all RANZCP Training developments, assist in the implementation of the RANZCP Training Regulations. Dr Lee has advised that whilst it is possible to maintain contact with trainees and supervisors by video and tele-conference, face-to-face contact with trainees and supervisors enables better building of relationships and supports valuing and respecting each other. This supports negotiation through challenging issues that arise. Further, the RANZCP DOT key responsibilities at point 10 articulates the requirement to: 'Meet either personally or via a delegate with trainees at least every 6 months to review their training progress and training forms'. Dr Cutbush has confirmed that reference to via a delegate is not relevant to Queensland as it refers to the NSW Director of Training structure. Dr Lee has advised that although not specific, 'personally' is strongly suggestive of face-to-face contact. I note that a core responsibility of the DOT is to ensure that workplace conditions meet required standards for training purposes, Dr Lee has advised that without physically attending a particular HHS workplace, it is difficult to understand the work conditions, functioning, culture and dynamics of that setting, and how these may be impacting training and supervisors. It is additionally difficult to make recommendations and negotiate for recommended changes. Dr Lee has also advised that from a HHS perspective, the BLS mandatory training requires physical attendance to complete the CPR physical demonstration component. -- 6 of 13 -- 7 The competing contentions [18] It is not in dispute that, presently, Dr Amos has not received any dose of a COVID-19 vaccine. [19] Dr Amos submits that the decision is not fair and reasonable on a number of bases. [20] The Department submits that, in response to Dr Amos' submissions, the decision was fair and reasonable. [21] I will consider each of the submissions made by the parties about the issues raised by Dr Amos. The approved Flexible Work Arrangement [22] Dr Amos submits that in his position, whilst he resides in Townsville, he covers all psychiatric trainees, being junior doctors training to be psychiatric consultants in Townsville, Cairns and Mackay. [23] Dr Amos further submitted that: a) prior to the pandemic, he would visit Townsville, Cairns and Mackay in person, every six months, to meet every psychiatric trainee and to touch base with other training-relevant personnel; b) at no point had he been on-site at Cairns and Mackay for more than one to two days per year and that his duties are the same for all sites; and c) since the pandemic disruption of in-person contacts, air travel and other restrictions, he has conducted his duties through videoconference, including the six monthly site visits to meet trainees. [24] The Department did not dispute any of these assertions made in Dr Amos' submissions. However, the Department did submit that as Director of Training, Dr Amos was responsible for training psychiatrists in North and Far North Queensland and in compliance with the RANZCP Training and Assessment Regulations. [25] The Department further submitted that Dr Amos' role requires him to attend hospitals and health service facilities where accredited RANZCP training posts were located within the region, including training posts at the Health Service, the Cairns and Hinterland Hospital and Health Service, Mackay Hospital and Health Service, Torres and Cape Hospital and Health Service and North West Hospital and Health Service. [26] Dr Amos then submitted that in October 2021, he requested a FWA in which he would continue to complete all his regular tasks working from home. Dr Amos submitted that the FWA was granted and finalised on 4 November 2021, and since that time he has been working from home '… with no difficulties noticed by myself or raised by trainees or the services that I cover.' Dr Amos also submitted that the only qualification noted on the FWA was the need for a review in six months and at that time '… it was explained to me that 6 months was the maximum allowable duration before review of a FWA.' -- 7 of 13 -- 8 [27] Dr Amos then submits: 5. As outlined in the decision, on 15.11.21 I was sent a letter asking me to show cause why disciplinary findings should not be made against me (paragraph 1 above reports the Allegation). As noted in the decision I provided a response received by Ms Kelly on 26.11.21. The decision summarised two arguments made in that response, the second of which was: "The Human Rights Act 2019 (QId) (HR Act) requires any such directive to use the least restrictive means to achieve the goal. The least restrictive means to achieving the goal of reducing the risk of workplace transmission of COVID-19 is to allow you to work from home, reducing the risk to zero. In this regard, you refer to the approval on 3 November 2021 of your application to work from home with no conditions, qualifications, or reservations, as confirming the feasibility of completing your role without attending the workplace." 6 The decision does not dispute that the HR Act should apply in the implementation of HED 12/21, and does not dispute that it requires any such directive to use the least restrictive means to achieve the stated goal. Under the heading "Risk and Human Rights" the decision rejects my argument that the least restrictive means of achieving the goal of HED 12/21 is for me to work from home on the basis that: "[T]he FWA is not envisaged to be a long-term arrangement, and as it was approved pending the outcome of the HED 12/21 process and is subject to review, it does not provide you with a reasonable excuse to avoid the requirements of HED 12/21." 7. This argument relies upon the faulty premise that the FWA is not envisaged to be a long-term arrangement because it is subject to a six-month review. The Queensland Government acknowledges that all workers have the right to request flexible work arrangements, and refer to the Fair Work Ombudsman's FWA best practice guidelines (attached). The guidelines note that employers must "only refuse a request on reasonable business grounds"; both the Queensland Government and the Ombudsman recommend a six month review period which the guideline notes has the explicit intention of trialling "a flexible working arrangement. That way you can get a better of [sic] idea of what will or won't work for the employee and your business, and how it can be adjusted if necessary." Very clearly the intention of the six month review is not to limit FWAs to six months, but to ensure the long-term success of such arrangements by incorporating feedback from a trial period. [28] In oral submissions, Dr Amos distinguished the circumstances of his case with the facts of the authorities referred to in the Department's written submissions. For example, Dr Amos submitted that the facts of his case were different to those in Graffunder v State of Queensland (Queensland Health)4 and in Radev v State of Queensland (Queensland Police Service)5 in that the former did not involve a FWA, as was a fact in his case, and the latter involved the appellant having direct contact with members of the community and critical staff members, which was not the case in respect of his position. Dr Amos also referred to Sunny v State of Queensland (Queensland Health)6 and submitted that his case was different to the appellant in that case in that he did not have direct contact with patients and a range of clinical and non-clinical employees. 4 [2022] QIRC 076. 5 [2021] QIRC 414. 6 [2022] QIRC 119. -- 8 of 13 -- 9 [29] In oral submissions, Dr Amos also relevantly submitted that: a) the FWA contradicts the submissions of the Department that he cannot perform his duties from home; and b) the Fair Work Ombudsman's Best Practice Guide to Flexible Working Arrangements contemplates such arrangements as being long-term arrangements. [30] In relation to the FWA, the Department submitted that: a) while Dr Amos was approved, on 4 November 2021, to perform his duties from home on a FWA, those arrangements: [W]ere agreed on a temporary basis while Dr Amos remained unvaccinated after 1 November 2021 and was not able to enter a hospital or healthcare facility. They were not intended to become a long-term arrangement or an alternative to Dr Amos complying with unlawful and reasonable direction issued to him. b) Ms Kelly, in the decision, did not rely on the fact that the working from home arrangement was to be reviewed in six months and she clearly relied on the facts that the FWA: i. was not intended to be an alternative to Dr Amos' compliance with the Directive; and ii. did not amount to a reasonable excuse to avoid the requirements of the Directive; c) even if the FWA was extended, that would not excuse Dr Amos from being able to attend a hospital or healthcare facility as an employee which, while he remains unvaccinated, he is unable to do; d) it is not operationally possible for Dr Amos to continue to perform 100% of his duties at home on a permanent or indefinite basis in that there will inevitably be times when Dr Amos is required to attend a hospital or healthcare facility and intermingle with other staff members, including those he trains, in order to fulfil his duties; and e) an alternative arrangement is not an operationally feasible option in Dr Amos' role and is therefore not a reasonable excuse for failing to comply with the direction given to him. [31] The FWA application and agreement form was annexed to Dr Amos' submissions filed on 28 March 2022. The Department does not dispute the authenticity of that document. [32] On 1 November 2021, Dr Amos made a written application for a FWA ('Dr Amos' FWA application'). In that application, Dr Amos stated that the request was for: Work from home pending resolution of vaccine mandate/HED 12/21 arrangements in the absence of vaccination -- 9 of 13 -- 10 [33] Under the heading 'Details of the request', Dr Amos wrote: I have questioned the legitimacy of HED 12/21 and have not received a coronavirus vaccine on the grounds that working from home would be the least restrictive means of minimising the risks associated with the coronavirus pandemic, consistent with the Human Rights Act 2019 QLD. There is no part of my job as Director of Training that cannot be done while working from home; indeed before 2018 the job was performed from Brisbane. I am requesting to work from home. [34] Dr Amos stated that the timeframe for the request was 'Indefinitely' and that the days of work (from which he would work from home) would be Monday, 8.00 am to 4.00 pm, Tuesday, 8.00 am to 12.00 pm, and Friday, 8.00 am to 4.00 pm. [35] Under the heading 'Potential issues', Dr Amos wrote: It is unclear what the final outcome of HED 12/21 will be but may include suspension and/or termination. This does not appear to interact with the request directly. [36] Dr Amos' FWA application was made after the letter dated 22 October 2021 from the Health Service's HR Enquiry Team advising him that if he did not provide evidence of receiving his first dose of a COVID-19 vaccine by 1 November 2021, or if he did not have an approved exemption, he may be subject to discipline. It was also made after Ms Kelly's letter to him dated 26 October 2021 referred to earlier in these reasons. [37] Dr Amos' FWA application was approved by Ms Mallett. In approving Dr Amos' FWA application, Ms Mallett recorded under the heading 'Review arrangements for an approved arrangement': Within 6 months, earlier if required depending on outcome of HED 12/21 process. [38] Furthermore, under the heading of 'Summary of approved arrangement', Ms Mallett wrote: Andrew is approved to undertake all relevant duties for the role of NQ Director of training within a work from home arrangement, pending outcome of HED 12/21 process. This arrangement will be reviewed no later than 6 months from the approval date, earlier if required dependent on the outcome of the HED 12/21 process. [39] The FWA was signed by Dr Amos on 4 November 2021 and by Ms Mallett on 3 November 2021. [40] Having regard to the review arrangements recorded in the FWA by Ms Mallett and also Ms Mallett's summary of the approved arrangement recorded in the FWA, I do not accept Dr Amos' argument that Ms Kelly's decision relied upon the faulty premise that the FWA was not envisaged to be a long-term arrangement because it was subject to a six-month review. There are two reasons for my rejection of that argument. [41] First, on the face of the FWA, it was subject to review within six months or '… earlier if required depending on outcome of the HED 12/21 process.' There is no reason why the written document containing the agreement for the FWA would be construed other than in accordance with ordinary principles of contract construction. Those principles relevantly include that the rights and liabilities of parties under a provision of a contract are to be determined objectively, by reference to its text, context and purpose; and that -- 10 of 13 -- 11 sometimes recourse to events, circumstances and things external to the contract is necessary in defining the purpose and object of the contract including where determining the proper construction may involve a constructional choice.7 [42] The only objective interpretation of the phrase '… HED 12/21 process' in the agreement is the process about whether or not Dr Amos should be subject to disciplinary action for failing to comply with the Directive. [43] I form this view by having regard to the date Dr Amos made his FWA request, which was after he had been advised that he may be subject to disciplinary action if he did not receive a first dose of a COVID-19 vaccine, and the potential issues identified by Dr Amos himself in making the request for a FWA that I referred to earlier, namely, that it was unclear what the final outcome of HED 12/21 will be '… but may include suspension and/or termination.' [44] That is to say, the express condition was that the FWA may be reviewed prior to the six-month period depending on the view formed by the Department about whether or not Dr Amos would be subject to disciplinary action. Clearly then, on this basis, there was no agreement that the FWA would be on foot indefinitely. Indeed, s 28(2) of the Industrial Relations Act 2016, being the Act that is applicable to Dr Amos' employment, relevantly provides that an employer may grant a request for a flexible work arrangement subject to conditions, only on reasonable grounds. In my view, the better guide to the meaning of the FWA agreement is the terms of the agreement itself rather than the guides published about such agreements. [45] Secondly, Dr Amos' argument seems to proceed on the basis that the granting of the FWA in itself is a reason that the Directive did not apply to him. I cannot accept that argument. [46] By the terms of the FWA, there was agreement that Dr Amos would not be subject to the Directive because he could perform all of his duties by working from home. Ms Mallett's summary of the reasons for the Department agreeing to Dr Amos' FWA application was that Dr Amos was approved to undertake all relevant duties by working from home '… pending outcome of HED 12/21 process.' [47] The agreement by the Department to approve Dr Amos' FWA application was envisaged to be a temporary measure depending upon a final decision being made by the Department as to whether or not Dr Amos would be subject to disciplinary action. [48] For these reasons, the impugned part of Ms Kelly's decision challenged by Dr Amos, as referred to above, does not render the decision other than fair and reasonable. The decision pre-empted the review of the FWA in circumstances where Ms Kelly was not in a position to make such a decision [49] In his written submissions filed on 28 March 2022, Dr Amos submitted: 8. Under the heading "Included in paragraph 7.1 of HED 12/21" the decision lists a number of factors which are interpreted to require my presence at a hospital or other facility to fulfil 7 Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; (2015) 256 CLR 104, [46] and [49] (French CJ, Nettle and Gordon JJ). -- 11 of 13 -- 12 the requirements of the DoT role. I will not address these factors individually, but only note that none of them were thought to be so dispositive as to prevent the grant of a FWA which has as one of its explicit goals gathering of information relevant to an on-going FWA. Thus, in order to reject my argument, the decision ignores the official approval of a work from home arrangement under an FWA framework which is designed to facilitate long-term agreements, and prefers to rely upon an ad-hoc list of factors which were considered by my line manager and the Statewide DoT as having the potential to impact on the ability to perform the DOT role while working from home but which were not considered by my line manager and the Statewide DoT to prevent the FWA in the first place. The decision thus pre-empts the review which is the formal process designed to consider all relevant factors necessary for maintaining an ongoing FWA, and substitutes a judgement (that the FWA is not envisaged to be an ongoing agreement) that the decision-maker was not in a position to make. [50] Again, for the reasons given immediately above, I cannot accept this submission. [51] Dr Amos' FWA application was approved '… pending outcome of HED 12/21 process.' The FWA was not entered into on an indefinite basis. Dr Amos may have wanted it to be entered into on an indefinite basis, however, that was not the basis upon which Dr Amos' FWA application was accepted by the Department. [52] While the facts of Dr Amos' case may not be the same as the cases I referred to earlier in these reasons, for the reasons I have given above, those different facts are not so material as to render the decision appealed against to be other than fair and reasonable. The rejection of the least restrictive means argument [53] Dr Amos submits: 9. In brief, I submit that the decision was not fair and reasonable because it unjustly rejected the argument that the least restrictive means of achieving the goal of minimising the risks associated with transmission of COVID-19 is for me to continue working from home under a FWA, an agreement which I have the legal right to request, based on the faulty premise that the FWA was not envisaged to be a long-term arrangement. 10. Further I submit that if the disciplinary decision that is the subject of the appeal is not confirmed, this will directly facilitate the least restrictive means to achieve the goals of HED 12/21, consistent with the HR Act, by allowing the FWA framework to operate as intended, with a review to determine under what conditions it will be possible for me to continue to fulfil the requirements of the DoT role. [54] This submission cannot be accepted because it is based on the contention Ms Kelly made the wrong decision, namely, that the FWA was not envisaged to be a long-term arrangement. The FWA was not envisaged to be a permanent or long-term arrangement in that the agreement for Dr Amos to work from home was subject to the outcome of the '… HED 12/21 process.' [55] Clearly, by the decision, Ms Kelly determined that the Directive applied to Dr Amos. The reasons why the Directive applied to Dr Amos, as expressed by Ms Kelly in the decision, are set out earlier in these reasons. Those reasons were derived by Ms Kelly following the advice provided to her by Dr Amos' line manager, Dr Lee, and after consultation with Dr Cutbush and Ms Mallett. Given the views of, in particular, Dr Lee and Dr Cutbush, that Dr Amos' position required face-to-face contact with trainees, then there can be no less restrictive means to achieve the objective of the Directive in respect -- 12 of 13 -- 13 of Dr Amos other than his compliance with the Directive. It was not unreasonable for the Department to determine the FWA would not be a long-term arrangement on the basis of the advice given by Dr Lee and Dr Cutbush. [56] In the short term, it was acceptable to the Department to enter into the FWA with Dr Amos. Indeed, this was so that the question of whether or not Dr Amos would be subject to disciplinary action could be determined. However, for the reasons given by Ms Kelly in the decision, the FWA, having regard to Dr Amos' duties and responsibilities, could not be sustained long-term and Ms Kelly's reasons for that conclusion were fair and reasonable because they were based on direct advice from Dr Amos' supervisors. The fact that there are no present complaints from any person about the FWA does not mean, on its own, that FWA was sustainable in the long-term. [57] Coming to the heart of the matter, Dr Amos was directed to receive a second dose of a COVID-19 vaccine by 31 October 2021. The direction came about by way of the operation of the Directive. That was a lawful direction given to Dr Amos. [58] Dr Amos has refused to comply with that direction. [59] For that reason, the disciplinary finding decision made by Ms Kelly was one that was open to her to make. The decision, therefore, was fair and reasonable. Conclusion [60] For the reasons I have given, the decision was fair and reasonable. [61] The decision is confirmed. Order [62] I make the following order: Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appealed against is confirmed. -- 13 of 13 --