Amaya v State of Queensland (Queensland Health) [2022] QIRC 117

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Amaya v State of Queensland (Queensland Health) [2022] QIRC 117 PARTIES: Amaya, Diana (Appellant) v State of Queensland (Queensland Health) (Respondent) CASE NO: PSA/2022/224 PROCEEDING: Public Service Appeal – appeal against a decision under a directive DELIVERED ON: 31 March 2022 MEMBER: HEARD AT: Hartigan IC On the papers ORDERS: 1. Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld): (a) the decision is set aside; and (b) the matter is returned to a new decision maker with a copy of this decision on appeal; and (c) the decision maker is directed to: (i) conduct a fresh internal review in accordance with the terms of Individual employee grievances (Directive 11/20) -- 1 of 12 -- 2 by no later than 4.00pm on Thursday, 14 April 2022. 2. Pursuant to s 566(1)(b) of the Industrial Relations Act 2016 (Qld), the stay of the decision issued by the Commission on 14 February 2022 is revoked. CATCHWORDS: PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – public service appeal – appeal against a decision under a directive – where appellant's exemption application from Health Employment Directive No 12/21 – Employee COVID-19 vaccination requirements ('the Directive') on the basis of a genuinely held religious belief was rejected – where the decision maker did not properly consider appellant's religious beliefs –– where decision is absent written analysis of how the appellant's religious beliefs were considered with respect to the exemption sought – where decision does not comply with the terms of Individual employee grievances (Directive 11/20) – where decision not fair and reasonable – decision appealed against set aside and matter returned to new decision maker with a copy of decision on appeal and directions to conduct a fresh internal review by a specified date LEGISLATION: CASES: Hospital and Health Boards Act 2011 (Qld), s 51A Industrial Relations Act 2016 (Qld), ss 562B, 562C and 566 Public Service Act 2008 (Qld), ss 187 and 194 Health Employment Directive No 12/21 – Employee COVID-19 vaccination requirements cls, 1, 6, 7, 8 and 10 Individual employee grievances (Directive 11/20), cl 9 -- 2 of 12 -- 3 Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018) Reasons for Decision Introduction [1] Ms Diana Amaya is employed by the State of Queensland (Queensland Health) ('the Department'), as a Dental Technician in the Toowoomba Oral Health Clinic located in the Toowoomba Base Hospital, within the Darling Downs Hospital and Health Service ('DDHHS') region. [2] Ms Amaya has been employed by the Department since approximately 5 January 2004. [3] On 11 September 2021, the Department issued the Health Employment Directive No 12/21 – Employee COVID-19 vaccination requirements ('the Directive'), which requires certain categories of employees to have received two doses of a COVID-19 vaccine and provide their line manager with evidence of confirmation of vaccination.1 Relevantly, Ms Amaya falls within one of those categories of employees. [4] On 28 September 2021, Ms Amaya applied for an exemption of the Directive on the basis of a genuinely held religious belief. Ms Amaya provided a personal statement and a letter from Mr Benjamin Thiel, Senior Pastor Seventh Day Adventist Reform Movement in support of her application for exemption. [5] On 3 December 2021, the Department determined to refuse Ms Amaya's application for exemption from compliance with the Directive. Ms Amaya sought an internal review of this decision. [6] By letter dated 18 January 2022, the Department advised Ms Amaya that it had confirmed the decision dated 3 December 2021 and that her application for exemption from the Directive on the basis of a genuinely held religious belief had been denied ('the decision'). The Department directed Ms Amaya to receive the required dose of a COVID-19 vaccination and provide written confirmation that she had received the required dose within seven days of receipt of the decision ('the direction'). The Department further advised Ms Amaya that failure to follow the direction may result in discplinary action being taken against her pursuant to s 187(1)(d) of the Public Service Act 2008 (Qld) ('the PS Act'). 1 Health Employment Directive No 12/21 – Employee COVID-19 vaccination requirements, cls 1, 7.1 and 8.1. -- 3 of 12 -- 4 [7] By appeal notice filed in the Industrial Registry on 9 February 2022, Ms Amaya appealed the decision of the Department and relied on the following grounds in support of her appeal: 1. Discrimination [sic] towards me as a member of the Seventh Day Adventist Reform Movement and my right to freedom of thought and conscience especially with regards to harmful substances ingested [sic] into my body. 2. My right to informed consent of a medical procedure [sic] which has the ability to cause harm to myself and others (as evidenced by the TGA). 3. Preventing me from attending my place of work to carry out my normal duties in an endeavour to coerce me into making a decision contrary to my beliefs and conscience has breached my right to informed, valid consent and has consequently [sic] resulted in duress and illness. 4. Failure by Darling Downs Health Service to show irrefutable evidence to support the claims that receiving the COVID-19 vaccine will ensure that it can provide a safer environment for myself as an employee, my work colleagues [sic] and our patients and that additionally [sic] COVID Vaccines 'prevent' illness, hospitalizations, and death. 5. Failure of Darling Downs health Service to provide me with [sic] an individual Risk Assessment as pertains to me in the Toowoomba Dental Laboratory. [8] On 14 February 2022, this Commission ordered that the decision the subject of the appeal be stayed until determination of the appeal or further order of the Commission pursuant to s 566(1) of the Industrial Relations Act 2016 (Qld) ('the IR Act'). [9] The appeal is made pursuant to s 197 of the PS Act, which provides that an appeal under Ch. 7, Pt. 1 of the PS Act is to be heard and determined under Ch. 11 of the IR Act by the Queensland Industrial Relations Commission. [10] Sections 562B(2) and (3) of the IR Act, which commenced operation on 14 September 2020, replicates the now repealed ss 201(1) and (2) of the PS Act.2 Section 562B(3) of the IR Act provides that the purpose of an appeal is to decide whether the decision appealed against was fair and reasonable. Accordingly, the issue for my determination in this appeal is whether the decision is fair and reasonable. [11] I must decide the appeal by reviewing the decision appealed against. The word 'review' has no settled meaning and, accordingly, it must take its meaning from the context in which it appears.3 An appeal under Ch. 7, Pt. 1 of the PS Act is not a re-hearing but, 2 See the Public Service and Other Legislation Amendment Act 2020 (Qld). 3 Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261 (Mason CJ, Brennan and Toohey JJ). -- 4 of 12 -- 5 rather, involves a review of the decision arrived at and the decision-making process associated with it.4 [12] For the reasons contained herein, I have found that the decision was not fair and reasonable. The decision [13] In the decision, the decision maker ultimately determined that the decision dated 3 December 2021, which sought to refuse Ms Amaya's application for an exemption from complying with the Directive was appropriate based on the material before the decision maker. [14] The decision maker provided, inter alia, the following reasons in support of its decision to confirm the refusal of the application for exemption: In recognition of the risks posed by the virus, as well as workplace health and safety obligations incumbent upon both the organisation and employees, Queensland Health has adopted the sensible and reasonable mitigation strategy of requiring its employees who are identified as being in high- risk groups to be vaccinated against COVID-19. This strategy is implemented by the Health Employment Directive No. 12/21 Employee COVID-19 Vaccination Requirements (HED) and the Human Resources Policy B70 Employee COVID-19 Vaccination Requirements (Policy). … In relation to risk, the HED12/21 also specifically provides that the COVID-19 virus 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 recognition of the risks posed by the virus, as well as workplace health and obligation incumbent upon both the organisation and employees, HED12/21 requires the health service employees who are identified as being in high risk groups to be vaccinated against COVID-19 unless they have been granted an exemption. COVID-19 vaccines have undergone all of the usual assessments including peer review and publication of phase one, two and three clinical trials and review by multiple licensing bodies including the Therapeutic Goods Administration. The vaccines are now in routine clinical use to prevent disease. They are not used to treat disease. I note your reference of the industrial case Kimber v Sapphire Coast Community Aged Car Ltd & Anor, I note this matter is in relation to an employment contract in New South Wales under the jurisdiction of the Fair Work Commission. … [15] The decision referred to the impact of the decision on Ms Amaya's human rights and relevantly provided: 4 Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018). -- 5 of 12 -- 6 The Directive and Public health directions do make vaccination compulsory for certain workers and others in specific circumstances to be vaccinated to protect the community during the pandemic. I acknowledge that my decision engages or limits a number of your human rights, including your right to equality and non-discrimination (s15 Human Rights Act 2019), the right to freedom of thought, conscience, religion and belief (s20 Human Rights Act 2019), the right to not be subjected to medical treatment without full, free and informed consent (sl 7(c) Human Rights Act 2019), and the right to property (s24 Human Rights Act 2019). I am satisfied that those limits on human rights 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. [16] The decision also determined to refuse an application made by Ms Amaya during the internal review process to work from home. This application was refused on the basis that a work from home arrangement was not appropriate having regard to the nature of Ms Amaya's role as a Dental Technician. Relevant legislation and Directive [17] Section 194 of the PS Act provides for decisions against which appeals may be made and relevantly includes: 194 Decisions against which appeals may be made (1) An appeal may be made against the following decisions – (a) a decision to take, or not take, action under a directive; … [18] Section 187 of the PS Act sets out the grounds for discipline and discplinary action generally as follows: 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— (a) engaged in repeated unsatisfactory performance or serious under performance of the employee’s duties, including, for example, by performing duties carelessly, incompetently or inefficiently; or (b) been guilty of misconduct; or (c) been absent from duty without approved leave and without reasonable excuse; or (d) contravened, without reasonable excuse, a direction given to the employee as a public service employee by a responsible person; or (e) used, without reasonable excuse, a substance to an extent that has adversely affected the competent performance of the employee’s duties; or -- 6 of 12 -- 7 (ea) contravened, without reasonable excuse, a requirement of the chief executive under section 179A(1) in relation to the employee’s appointment, secondment or employment by, in response to the requirement— (i) failing to disclose a serious disciplinary action; or (ii) giving false or misleading information; or (a) contravened, without reasonable excuse, a provision of this Act; or (b) contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action. … [19] The Directive sets out the mandatory vaccination requirements for all current and prospective health service employees employed under the Hospital and Health Boards Act 2011 (Qld) ('HHB Act'). [20] Section 51A of the HHB Act provides for the issuing of health employment directives and is set out in the following terms: 51A Health employment directives (1) The chief executive may issue health employment directives about the conditions of employment for health service employees. (2) Without limiting subsection (1), a health employment directive may be about the following— (a) remuneration for health executives and senior health service employees; (b) the classification levels at which health executives and senior health service employees are to be employed; (c) the terms of contracts for health executives and senior health service employees; (d) the professional development and training of health service employees in accordance with the conditions of their employment. (3) A health employment directive may apply to any or all of the following— (a) the department, a Service or all Services; (b) health service employees, or a stated type of health service employee. [21] Section 51E(1) of the HHB Act provides that, inter alia, a health employment directive that applies to an employee of the department is binding on the employee and the department. [22] Clause 1 of the Directive provides that compliance with the Directive is mandatory. Clause 2 provides that the purpose of the Directive is to outline COVID-19 vaccination requirements for existing and prospective employees employed in the identified high- risk groups designated in the Directive. -- 7 of 12 -- 8 [23] Clause 6 of the Directive identifies the potential risk posed to relevant employees, and the risk profile of those employees as follows: The COVID-19 virus 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 recognition of the risks posed by the virus, as well as workplace health and safety obligations incumbent upon both the organisation and employees, this HED requires health service employees who are identified as being in high risk groups to be vaccinated against COVID-19. Prospective and existing health service employees subject to these requirements have been identified based on the following risk profile: • They are working in an area with suspected or confirmed COVID-19 patients or an area that a COVID-19 patient may enter. • They are coming into direct or indirect contact with people who work in an area with COVID-19 patients or an area that a suspected or actual COVID-19 patient may enter. • They are unable to observe public health requirements (e.g. physical distancing, working in areas of high population density, rapid donning/doffing of personal protective equipment (PPE) in emergent situations). • They have the potential to expose patients, clients, other staff or the broader community to the virus (e.g. occupying shared spaces such as lifts, cafeterias, car parks, with people working with suspected or actual COVID-19 patients). [24] Clause 7 of the Directive sets out the requirements for vaccination. Relevantly, cl 7.1 states: 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. [25] Clause 7.1 of the Directive also includes a table5 which separates Queensland Health employees into a group number based on their employee cohort. Ms Amaya falls within Group 2, which covers an employee cohort of all health service employees who are employed to work in a hospital or other facility where clinical care or support is provided. [26] Clause 8 of the Directive sets out the mandatory vaccine requirements for existing employees as follows: 8.1 Existing employees currently undertaking work or moving into 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. 5 Table 1. -- 8 of 12 -- 9 • 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. • An existing employee must maintain vaccine protection. Therefore, an existing employee is required to receive the prescribed subsequent dose/s of a COVID-19 vaccination (i.e. booster), as may be approved by the Australian Technical Advisory Group on Immunisation (ATAGI), within any recommended timeframe following the second dose. Evidence of vaccination, confirming the employee has received prescribed subsequent dose/s of the vaccine, is to be provided to their line manager or other designated person within 7 days of receiving the vaccine. • An existing employee who is required to have received a first or second dose of a COVID- 19 dose at an earlier date under a Chief Health Officer public health direction must be vaccinated by the dates specified in the public health direction. • The requirements of this clause 8 do not apply to existing employees who have been granted an exemption under clause 10 of this HED. [27] Clause 10 of the Directive provides that where an employee is unable to be vaccinated, an exemption may be granted as follows: 10.1 Where an employee is unable to be vaccinated they are required to complete an exemption application form. 10.2 Exemptions will be considered in the following circumstances: • Where an existing employee has a recognised medical contraindication; • Where an existing employee has a genuinely held religious belief; • Where another exceptional circumstance exists. 10.3 If an existing employee is granted an exemption, they do not have to comply with clause 8 or 9 of this HED for the duration of that exemption [28] Individual employee grievances (Directive 11/20) ('Directive 11/20') provides principles and procedures for managing and resolving individual employee grievances. Clause 9.2 of Directive 11/20 provides for internal reviews and relevantly states: (a) If an employee is dissatisfied with a decision made through local action, the employee may make a written request to the agency chief executive for an internal review. (b) A request for an internal review must: (i) be received by the chief executive within 14 days of the employee receiving a copy of the decision made through local action or a decision is taken be made under clause 9.1(e) (ii) clearly state the reasons for dissatisfaction with the decision made through local action, and not merely state a belief that the decision made through local action was unfair and unreasonable, and -- 9 of 12 -- 10 (iii) state the action the employee believes would resolve the grievance. (c) Once an agency receives a request for an internal review, the agency must notify the employee in writing: (i) that the request for an internal review has been received by the agency (ii) of the name and contact information for a contact person for the internal review, and (iii) of the 14 day timeframe for making a decision in clause 9.2(f). (d) An internal review is to be completed by the chief executive or their delegate. The chief executive or delegate is to determine whether the decision made through local action was fair and reasonable in the circumstances. (e) If the chief executive or delegate is satisfied that: (i) the reasons for seeking an internal review are insufficient (ii) the request for internal review is frivolous or vexatious, or (iii) the employee has unreasonably refused to participate in local action to resolve the individual employee grievance the agency may decide to take no further action in relation to the request for internal review. The agency must give written reasons for its decision in accordance with clause 9.2(h). (f) A decision about internal review of a decision made through local action must be made as soon as possible and within 14 days of receipt of a written request from an employee for internal review. The 14 day period commences from the date the agency receives the request for internal review, in accordance with clause 9.2(b). This applies unless: (i) the timeframe has been extended by mutual agreement between the parties. A party to the individual employee grievance is not to unreasonably withhold their agreement or (ii) where the chief executive or delegate can demonstrate that reasonable attempts have been made to progress the individual employee grievance. (g) If the chief executive or delegate fails to make a decision in relation to the request for internal review, the agency is taken to have confirmed the decision made through local action. Depending on the issues raised in the individual employee grievance, this may result in an avenue of external review being available to an employee once the 14 day period in clause 9.2(f) has expired. (h) At the completion of internal review, including a decision to take no further action under clause 9.2(e), the chief executive or delegate must provide a written decision to the employee. This decision must: (i) outline the action taken to review the decision made through local action (ii) outline the reasons for the decision, or the decision to take no further action (iii) outline any avenues of external review that may be available to the employee, including any relevant timeframes. (iv) outline any avenues of external review that may be available to the employee, including any relevant timeframes. Whether the decision was fair and reasonable -- 10 of 12 -- 11 [29] As noted above, the role of the Commission in an appeal such as this, is to conduct a review of the decision to determine whether it is fair and reasonable. [30] In considering whether a decision is fair and reasonable, regard will be had to the reasons provided in support of the decision. The purpose of the reasons, inter alia, is to provide an explanation to the reader as to how the decision came to be made. Such reasoning should be apparent in the terms of the reasons. [31] The reasons provided in support of the decision subject to this appeal do not explain what regard the decision maker had to Ms Amaya's religious beliefs. The decision is absent any written analysis of Ms Amaya's religious beliefs and how such religious beliefs were considered with respect to the exemption sought by Ms Amaya and in the terms of the operation of the Directive. [32] The written submissions of the Department contend that: Ms Scott properly considered Ms Amaya's exemption request made on the basis of religious belief and weighed these against the objects and requirements of HED 12/21, noting the high level of risk to the health and wellbeing of patients, colleagues and other key stakeholders who access services from Oral Health Toowoomba, the Toowoomba Hospital and the DDHHS. On this basis, Ms Scott confirmed the decision to refuse Ms Amaya's exemption request. [33] Unfortunately, the difficulty in accepting the Department's submissions is that the reasons for the decision simply do not state such things, or even words to the effect of those matters. [34] I consider the decision subject to this appeal, failed to meaningfully consider Ms Amaya's religious beliefs. Indeed, the decision does not refer to Ms Amaya's religious beliefs in any detailed way under the headings 'My review' and 'My decision'. [35] Directive 11/20 outlines, at cl 9.2, the process for an internal review. Relevantly, cl 9.2(h)(ii) provides, inter alia¸ that upon completing an internal review, the delegate must provide a written decision outlining the reasons for the decision. If the decision maker did meaningfully consider Ms Amaya's religious beliefs when undertaking the internal review, then such consideration is absent from the reasons. [36] The result of the failure to meaningfully consider Ms Amaya's religious beliefs is that Ms Amaya, and the Commission now considering this appeal, can not determine what regard was had to Ms Amaya's religious beliefs in conducting the internal review. [37] Consequently, I consider the decision to not be fair and reasonable. I will set aside the decision made on 18 January 2022 and direct that a different decision maker of the Respondent conduct a fresh internal review in accordance with the terms of Directive 11/20 by 4.00pm on Thursday, 14 April 2022. -- 11 of 12 -- 12 Orders: [38] I make the following orders: 1. Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld): (a) the decision is set aside; and (b) the matter is returned to a new decision maker with a copy of this decision on appeal; and (c) the decision maker is directed to: (i) conduct a fresh internal review in accordance with the terms of Individual employee grievances (Directive 11/20) by no later than 4.00pm on Thursday, 14 April 2022. 2. Pursuant to s 566(1)(b) of the Industrial Relations Act 2016 (Qld), the stay of the decision issued by the Commission on 14 February 2022 is revoked. -- 12 of 12 --