Blomfield v State of Queensland (Queensland Health) [2022] QIRC 148

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Blomfield v State of Queensland (Queensland Health) [2022] QIRC 148 PARTIES: Blomfield, Ryan (Appellant) v State of Queensland (Queensland Health) (Respondent) CASE NO: PSA/2022/198 PROCEEDING: Public Service Appeal – Appeal against a decision made under a directive DELIVERED ON: 21 April 2022 MEMBER: Dwyer IC HEARD AT: Brisbane HEARING DATE: 21 April 2022 ORDER: 1. The decision appealed against is confirmed. CATCHWORDS: PUBLIC SERVICE – APPEAL - appeal of decision under directive – where appellant employed by the State of Queensland as a Patient Support Assistant – where the Health Employment Directive No.12/21 – Employee COVID-19 vaccination requirements required existing employees who are employed to work in a hospital to receive at least a first dose of a COVID-19 vaccine by 30 September 2021 and must have received the second dose of a COVID-19 vaccine by 31 October 2021 – where appellant sought an exemption due to other exceptional circumstances – where -- 1 of 11 -- 2 Reasons for Decision (ex tempore) Background facts [1] Mr Ryan Blomfield is employed by the Sunshine Coast Hospital and Health Service ('SCHHS') as a Patient Support Assistant. He has been employed with the health service since February 2017. [2] On 11 September 2021 Queensland Health issued the Health Employment Directive No. 12/21 - Employee COVID-19 vaccination requirements (‘the directive'). It is not controversial that Mr Blomfield was an employee to whom the directive applied. [3] The directive required Mr Blomfield to provide proof of having received a first dose of a COVID-19 vaccination by 30 September 2021 and proof of a second dose by 31 October 2021. It is not controversial that Mr Blomfield did not comply with the directive. exemption was refused - risk posed to the health and wellbeing of patients, colleagues and other stakeholders - where decision to refuse exemption fair and reasonable – where internal review of decision to refuse exemption was fair and reasonable - where decision reviewing exemption decision confirmed LEGISLATION: Industrial Relations Act 2016 (Qld) ss 562B, 562C Health Employment Directive No. 12/21 - Employee COVID-19 vaccination requirements cl 10 CASES: Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018). APPEARANCES: Mr R Blomfield, the appellant Mr W Campbell of the State of Queensland (Queensland Health) -- 2 of 11 -- 3 [4] On 30 September 2021 Mr Blomfield applied for an exemption in accordance with the directive1 and the health service policy. Mr Blomfield completed an exemption request application form2 and indicated that he sought an exemption. It appears from the form Mr Blomfield completed that all three available grounds were initially relied on, namely: • medical contraindication; • genuine religious beliefs; and • other exceptional circumstances. [5] The exemption application form contained no further information or submission from Mr Blomfield, other than a handwritten reference to 'attached correspondence' in the section of the form which was supposed to contain submissions to support the 'other exceptional circumstances' ground. [6] Notably, the handwritten markings on the exemption request application form appear to nominate all three grounds, but then also appear to amend the application by striking out the requests for exemption on the grounds of medical contraindication and genuine religious beliefs. When asked about these matters at the hearing, Mr Blomfield asserted that he sought exemption on all three grounds.3 [7] Notwithstanding this expressed intention Mr Blomfield provided no evidence at the time of the application for exemption (or since then) to support his exemption on these other grounds. I will deal with this apparently contradictory position adopted by Mr Blomfield later in my reasons. [8] Mr Blomfield submitted his exemption request on 30 September 2021. His exemption application was accompanied by two letters prepared by lawyers acting for a group of employees that included him. He did not attach any other supporting documents or evidence of any kind. He did not make any form of personal submission setting out grounds upon which he sought exemption but rather, adopted the generic comments in the lawyer's letters. [9] On 15 November 2021, Mr Colin Anderson, Executive Director of People and Culture for the SCHHS, issued a decision refusing Mr Blomfield's exemption request. His decision relevantly provides: 1 Health Employment Directive No. 12/21 - Employee COVID-19 vaccination requirements, cl 10. 2 Attachment 1 to the SCHHS submissions filed 9 March 2022. 3 T 1-5, ll 30-35. -- 3 of 11 -- 4 Your Exemption Application You sought an exemption on grounds of another exceptional circumstance. The grounds for application are outlined in your letter which was attached to your application. As part of your correspondence, you have outlined a number of concerns, which I will address below. Concerns regarding risk in consultation. In your letter, you have raised concerns in relation to the risks associated with COVID-19 and the COVID-19 vaccination as it relates to your role and consultation process undertaken in relation to introducing the vaccination requirement. Queensland Health is of the view that COVID-19 virus represents a significant risk to the health and safety of healthcare workers, support staff, their families and the patients under our care. Evidence from around the world demonstrates not only the safety of the COVID-19 vaccine, but the very high level of efficacy of this vaccine. Vaccination reduces the risk of hospitalisation and death from COVID-19 by over 90 per cent when compared to those who are unvaccinated. Vaccination also means staff are much less likely to transmit the virus to others, including, importantly, to our sometimes immunocompromised patients. In recognition of the risks posed by the virus, as well as the workplace health and safety obligations incumbent upon the organisation and employees, Queensland Health has adopted the reasonable mitigation strategy of requiring employees to be vaccinated against COVID-19. This strategy is implemented through the directive and policy. Queensland Health has undertaken relevant consultation in relation to the COVID-19 vaccination requirements. The decision to require vaccination against COVID-19 was made considering the significant risk to 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 are not vaccinated in circumstances – unless certain extenuating circumstances apply. Queensland Health's position is that the impacts 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 directive and policy include protecting staff and patients from an infection with COVID-19 and the maintenance of a proper and efficient health system in a time of global pandemic. It should be noted that there is no other reasonably practicable, effective and less restrictive way to achieve this purpose. I am not satisfied that the concerns regarding risk or consultation constitute another exceptional circumstance. [10] I note that Mr Anderson considered Mr Blomfield's exemption request on the basis of the ground of 'other exceptional circumstance' only. I note this is contrary to submissions made by Mr Blomfield at the hearing to the effect that he also sought exemption on -- 4 of 11 -- 5 religious and medical grounds.4 I note this assertion is contradicted by Mr Blomfield's own written submissions filed on 6 April 2022, which confirm his request was only in respect of exceptional circumstances. I will deal with this factual conflict in my consideration below. [11] Dissatisfied with the decision of Mr Anderson, Mr Blomfield then sought an internal review of the decision on 26 November 2021. In doing so, Mr Blomfield provided no additional submission or documentation relevant to his exemption request but rather, elected to "repeat and rely" on his original application. [12] On 14 January 2022, Mr Andrew Leggate, Acting Chief Information and Infrastructure Officer, issued a decision upholding the refusal of the exemption request. In his decision letter Mr Leggate set out all of the material he had considered for the purposes of reviewing the decision of Mr Anderson which included Mr Blomfield's exemption request and the earlier decision of Mr Anderson. [13] He concluded as follows: In considering the requirements under the PSC Directive 11/20 and the actions taken as outlined above, I am of the view that the EDP&C has undertaken appropriate steps in consideration in relation to your mandatory vaccine exemption request. Accordingly, you are not exempt from the requirements of the directive. [14] It is the decision of Mr Leggate that Mr Blomfield now appeals. To be clear, it is this decision to which I must limit the powers of review granted to me under the Industrial Relations Act 2016 (Qld) ('the IR Act'). Having said that, the decision of Mr Leggate is an internal review of the decision of Mr Anderson. In the circumstances, a proper review the decision of Mr Leggate will necessitate some degree of analysis of the decision of Mr Anderson in order to evaluate the conclusion reached in the decision under review. Nature of Appeals [15] Chapter 11 of the IR Act establishes the jurisdiction of this Commission to hear appeals under the Public Service Act 2008 (Qld) ('the PS Act'). Appeals are conducted by way of a review of the decision. That is to say, it is not a rehearing of the merits of the matter in the form of a hearing de novo.5 [16] The function of the Commission is to determine if the decision was fair and reasonable.6 4 T 1-5, ll 30-35. 5 Goodall v State of Queensland (unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018), 5. 6 Industrial Relations Act 2016 (Qld) s 562B. -- 5 of 11 -- 6 Orders the Commission can make [17] The IR Act provides that the Commission, having heard an appeal, may make one of the following orders:7 (a) confirm the decision appealed against; or (b) for an appeal against a promotion decision—set the decision aside, and return the matter to the decision maker with a copy of the decision on appeal and any directions permitted under a directive of the commission chief executive under the Public Service Act 2008 that the commission considers appropriate; or (c) for another appeal - set the decision aside, and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate. Submissions [18] In accordance with directions issued from my chambers, the parties provided written submissions. I do not intend to restate the submissions in their entirety in these reasons, suffice it to say that the Health Service's submissions essentially defend the decision on the basis that the material provided by Mr Blomfield was considered however, weighed against the risk to the health and wellbeing of colleagues, patients and visitors, the refusal of his exemption request was fair and reasonable. [19] Mr Blomfield's submissions make various (unsubstantiated) assertions about the failing of the COVID-19 vaccines and protections against the mandate that he asserts are found in various instruments, including the 'International Covenant of Economic, Social and Cultural Rights' and 'the 1946 referendum'. [20] Also, for the first time in this entire process, Mr Blomfield raises his health history.8 His submission in this regard was not supported by medical evidence confirming that he was at any unusual danger in taking the COVID-19 vaccine because of his medical history. [21] I note that the vast majority of matters now raised in Mr Blomfield's appeal submissions were not before Mr Anderson or Mr Leggate. As noted above, this is a review of a decision. The purpose is to determine whether the decision is fair and reasonable. Such an exercise excludes consideration of matters that were not before the decision maker. [22] Consequently, I do not consider these matters now raised by Mr Blomfield can be legitimately considered in this appeal. 7 Ibid s 562C. 8 In his filed submissions and again during the hearing Mr Blomfield revealed a history of cancer diagnosis. -- 6 of 11 -- 7 Consideration The application for exemption [23] The supporting documents that accompanied Mr Blomfield's exemption request were in the form of two letters from a firm of lawyers. The first letter is variously dated either 27 or 28 September (depending on which page is being viewed) ('the first letter').9 The second letter is dated 29 September 2021 ('the second letter'). 10 [24] Both of these letters are purportedly written on behalf of a group of clients named in a schedule attached to the first letter (but not provided to the Commission). The representative for the SCHHS confirmed at the hearing that Mr Blomfield is included on that list. [25] The first letter contains a passage that purports to state the purpose of the correspondence, namely, it was to: • Request additional information in relation to the directive; • Document 'some of the concerns our clients have in relation to the directive'; and • Notify a dispute in accordance with variously named industrial instruments. [26] The first letter goes on to list the client's concerns with the directive, which are expressed in broad terms and followed by certain demands to address those concerns in the interim. Nothing in the first letter directly addresses the available grounds of exemption, either generically or specifically with respect to Mr Blomfield. It is not in the form of a request for an exemption. [27] The second letter opens by foreshadowing that it 'will be attached to our client's exemption request form' along with the first letter and (relevantly) 'any supporting documentation'. [28] The second letter primarily complains about a lack of response to the first letter.11 It makes no reference to religious objections or medical contraindications of Mr Blomfield or anybody else represented by the firm. 9 Attachment 2 to the submissions of the SCHHS filed 9 March 2022. 10 Attachment 2 to the submissions of the SCHHS filed 9 March 2022. 11 I note a period of approximately 24-48 hours having elapsed between the two letters depending on the actual date of the first letter. -- 7 of 11 -- 8 [29] The second letter does set out (under a heading 'Other exceptional circumstances – evidence requirements') five points, which read as follows: We set out the below extenuating circumstances which preclude our client from meeting the COVID-19 vaccination requirements: 1. Despite requesting a risk assessment in our letter dated the 27th of September 2021, no such assessment or other information has been provided. 2. Despite our letter of the 27th of September 2021 raising a number of very serious issues and attaching a schedule to 70 separate summaries which demonstrate significant safety concerns with the COVID-19 vaccines, no reply has been provided to our client. It is our view that the matters raised in the said letter constitute extenuating circumstances. 3. There has been a complete lack of consultation with our client in respect of an issue which directly involves our client's personal health. 4. The direction requires our client to submit to a medical procedure in the absence of a risk assessment and an appropriate opportunity to take personal and independent medical advice. 5. In all of the circumstances, we fail to see how it is possible for our client to give free and informed consent to the vaccine. [30] I note that the first two points are largely complaints about the alleged delay in response to the first letter. [31] The fifth paragraph is a summary of the purported consequences of the complained of delay. [32] It is only point three and four that identify anything that might identify the 'other exceptional circumstances' relied on by 'our client' and they are expressed in terms that are not specific or personal to Mr Blomfield. At best, the exceptional circumstances Mr Blomfield apparently asserted in his exemption request can be distilled from these points as: • Lack of consultation; and • Failure to provide a risk assessment. [33] Mr Blomfield submitted his exemption request on 30 September 2021 with the first and second letters attached. Contrary to what was foreshadowed by his lawyers in the second letter, Mr Blomfield did not provide any other supporting documents with his exemption request. He did not make any form of personal submission setting out grounds upon which he sought an exemption. Decision of Mr Anderson [34] Having regard to the decision of Mr Anderson, I am satisfied that he considered all of the material he had available to consider in respect of Mr Blomfield's exemption request. Indeed, I consider he was somewhat generous in considering the request at all, given the sparse detail the request contained. -- 8 of 11 -- 9 [35] It is clear in the decision that Mr Anderson has considered the matters raised in the second letter, in particular with respect to a lack of consultation and risk assessment. The matters considered are fulsomely set out from the bottom of page one of his letter.12 It is more than readily apparent that he considered the expressed concerns around risk and consultation but decided that they did not amount to 'exceptional circumstances' when weighed against the health risk that would arise if Mr Blomfield were allowed to continue to attend work unvaccinated. Decision of Mr Leggate [36] Having regard to the decision of Mr Leggate, it is similarly clear that he also considered the limited material available in respect of Mr Blomfield's exemption request, and he was equally unconvinced that it amounted to exceptional circumstances. [37] I can see no flaw, no error, or no oversight in the decision or the process surrounding it. Moreover, given the sparse and generic material that the decision maker had to consider, the decision makers have both been exceedingly fair to Mr Blomfield by considering his request at all. Other grounds of exemption [38] Both decision makers restricted their consideration of Mr Blomfield's application for exemption to the ground of 'other exceptional circumstances'. In a rather extraordinary submission, Mr Blomfield now contends that his intent was to seek exemption on all three available grounds. It is extraordinary because: • there was no point (at any stage) in the preceding process where Mr Blomfield tendered any document or made any submission consistent with such an intent;13 • when he applied for the internal review of Mr Anderson's decision, he failed to make any attempt to draw the apparent oversight of Mr Anderson to Mr Leggate's attention; and • even in his own submissions filed as recently as 6 April 2022, he has expressly indicated that he 'applied for an exemption under exceptional circumstances'. [39] In the circumstances I am not convinced that either of those additional grounds was an intended basis of Mr Blomfield's exemption request. Having had closer regard to Mr Blomfield's exemption application form it is clear that those grounds were originally 12 See attachment 5 of the submissions of the SCHHS filed 9 March 2022. 13 Including the mandatory medical certificate and/or letter from a religious leader required to accompany the request. -- 9 of 11 -- 10 nominated but they have subsequently been struck out by way of a line being drawn through them where they appear as options on the form.14 [40] Further, the accompanying portions of the form in respect to these grounds are blank and, as noted above, critical supporting documents have never been tendered. Finally, Mr Blomfield's own written submissions contradict his assertion at hearing. [41] I do not suggest that Mr Blomfield has been deceitful in his submission about this issue at hearing. He indicated his illness has caused him difficulty with his memory.15 I am prepared to conclude that this accounts for the stark inconsistency with his previous position that emerged at hearing. [42] Alternatively, if I am wrong in my conclusion about the singular ground relied on by Mr Blomfield, I further consider that a failure by a decision maker to consider a ground relied on for exemption will not, of itself, give rise to an unfair or unreasonable decision. It will depend entirely on the circumstances of each case. [43] If I were to accept that Mr Blomfield's exemption request extended to 'genuinely held religious beliefs' or 'medical contraindication' that were not considered I would still not consider he had suffered any unfairness in the failure by Mr Anderson or Mr Leggate to consider these matters in these specific circumstances. [44] I have noted already the total failure by Mr Blomfield to tender even the most basic evidence in support of his request on genuinely held religious beliefs or medical contraindication. In those circumstances it is entirely unlikely that a properly informed decision maker would have reached a different conclusion to the one reached by Mr Anderson and Mr Leggate. At best it might lead to a conclusion that a decision was technically unfair, but it would make no difference in a practical sense and would not be sufficient to sustain this appeal. Conclusion [45] In making his request for exemption Mr Blomfield had one opportunity to get this right. He had the onus to present evidence and submissions that were sufficiently particularised and informative, such that they would inform a decision maker why he ought to be allowed an exemption against the vaccination mandate. The material relied on by Mr Blomfield in support of his exemption request was patently inadequate for that purpose. 14 Page 3 of Attachment 1 of the submissions of the SCHHS filed 9 March 2022. 15 T 1-8, ll 10-15. -- 10 of 11 -- 11 [46] The letters from lawyers acting for Mr Blomfield were, on their face, never intended to serve as a formal submission in support of Mr Blomfield's exemption request. The second letter in particular clearly contemplates the provision of 'supporting documentation' which were never provided by Mr Blomfield. [47] In electing to rely only on the broad-brush submission contained in the lawyer's letters Mr Blomfield has entirely miscalculated the importance of the task he was undertaking. Notwithstanding this, Mr Anderson (and later Mr Leggate) diligently extracted sufficient information from the exemption request form (and the letters) to identify the grounds relied on and to fully consider Mr Blomfield's request. [48] To the extent that any submission on the ground of 'other exceptional circumstances' was made at all by Mr Blomfield, I am satisfied that it was thoroughly considered by Mr Anderson and fairly weighed against the competing factors involving the health and safety of those with whom Mr Blomfield might likely come into contact. I am further satisfied that the decision of Mr Anderson was equally fairly reviewed by Mr Leggate. [49] It follows that I find the decision to be fair and reasonable. Order [50] In the circumstances, I make the following order: 1. The decision appealed against is confirmed. -- 11 of 11 --