Blomfield v State of Queensland (Queensland Health) [2022] QIRC 116

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Blomfield v State of Queensland (Queensland Health) [2022] QIRC 116 PARTIES: Blomfield, Jennifer (Appellant) v State of Queensland (Queensland Health) (Respondent) CASE NO: PSA/2022/196 PROCEEDING: Public Service Appeal – fair treatment appeal DELIVERED ON: 29 March 2022 MEMBER: HEARD AT: Pidgeon IC On the papers 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 - external review – where the appellant applied for an exemption from Health Employment Directive No 12/21 Employee COVID-19 vaccination requirements – where appellant was denied an exemption from complying with directive – where appellant submits that decision is unfair and unreasonable LEGISLATION: Industrial Relations Act 2016 (Qld) ss 562, 562B and 562C Public Service Act 2008 (Qld) ss 137, 187 and 194 -- 1 of 13 -- 2 Directive 11/20 - Individual Employee Grievances Health Employment Directive No 12/21 Employee COVID-19 vaccination requirements Reasons for Decision Introduction [1] Ms Jennifer Blomfield (the Appellant) is employed by the State of Queensland (Queensland Health) (the Respondent). Ms Blomfield is employed as an Enrolled Nurse at the Sunshine Coast University Hospital (SCUH) within Sunshine Coast Hospital and Health Service (SCHHS). [2] Ms Blomfield has been an employee of the Respondent since 27 January 2009. [3] On 14 January 2022, Ms Blomfield received an internal review decision confirming a decision not to approve her application for an exemption from compliance with Health Employment Directive No 12/21 (Directive 12/21) which requires her to receive the required doses of the COVID-19 Vaccination.: Actions taken to review the decision made by the EDP&C I have carefully and fully considered the following documentation and information: • your exemption application form; • supporting documentation you provided, including letters from Kennedy Spanner Lawyers; • the mandatory vaccination exemption outcome decision by the EDP&C, dated 15 November 2021; • Public Service Commission (PSC) Directive 11/20 – Individual Employee Grievances (PSC Directive 11/20); • Individual Employee Grievances Human Resources (HR) Policy E12; • HR sub-delegations Manual s24.2; and • Instrument of Sub-Delegation – Exemption to COVID-19 requirements The grounds for your application are outlined in letters from Kennedy Spanner Lawyers which were attached to your application. As the letters appear to relate to the class of persons detailed at Schedule 1 of Kennedy Spanner Solicitors' letter dated 27 September 2021 and does not otherwise identify or reference you by name; for the purposes of your application I have taken the reference to 'our client' as being a reference to you. Delegations Having considered all the documentation, I have also considered the mandatory vaccination exemption process which was undertaken by the EDP&C. I confirmed that the EDP&C was the appropriate delegate in accordance with the Instrument of Sub-Delegation to consider and provide you with a decision. -- 2 of 13 -- 3 I confirm that I hold the appropriate delegation to undertaken an internal review as per s24.2 of the HR Sub-Delegations Manual, and in accordance with s9.2 of PSC Directive 11/20. As per s9.2(d), I am required to determine whether the decision made was 'fair and reasonable in the circumstances'. My review • On 11 September 2021, the Director-General, Queensland Health, on the advice of the Chief Health Officer, issued HED 12/21 mandating all vaccinated staff to obtain their first dose of a COVID-19 vaccine by 30 September 2021, and the second dose by 31 October 2021. • On 30 September 2021, you applied for an exemption from mandatory vaccination against COVID-19. • On 28 October 2021, the Director-General, Queensland Health, sent an email to all employees mandating employees who work in healthcare facilities to be fully vaccinated by 1 November 2021. • On 9 November 2021, your application was reviewed and considered by the Department of Health and a recommendation put to the EDP&C for consideration and decision. • On 15 November 2021, you were advised of the decision on relation to your application for an exemption, specifically that your application was denied. • On 26 November 2021, you applied for an internal review of the decision to decline your application for an exemption from vaccination against COVID-19. I note in your request for an internal review, you declare 'I repeat and rely upon my original application and supporting material' and have not provided further supporting documentation with your request for an internal review. While I may not mention all information contained in documents provided, I wish to advise I have fully and carefully considered everything you have provided. My decision In considering the requirements under PSC Directive 11/20 and the actions taken as outlined above, I am of the view that the EDP&C has undertaken appropriate steps and consideration in relation to your mandatory vaccination exemption request. Accordingly, you are not exempt from the requirements of HED 12/2. Human Rights considerations I acknowledge that my decision engages or limits a number of your human rights, including your right to equality and non-discrimination and your right not to receive medical treatment without consent. 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. Is the Appellant entitled to appeal? [4] Section 194 of the Public Service Act 2008 (The PS Act) lists various categories of decisions against which an appeal may be made. Section 194(1)(eb) provides that an appeal may be made against "a decision a public service employee believes is unfair and unreasonable (a fair treatment decision)". -- 3 of 13 -- 4 [5] The appeal notice was filed with the Industrial Registry on 3 February 2022 within 21 days of the decision being received on 14 January 2022. I am satisfied that the Appellant may appeal the decision. Appeal Principles [6] Section 562B(3) of the Industrial Relations Act 2016 (IR Act) provides that "the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable". [7] Findings made in the decision which are reasonably open on the relevant material or evidence before the decision maker, should not be expected to be disturbed on appeal. [8] A public service appeal is not an opportunity for a fresh hearing, but a review of the decision arrived at by the decision maker. To determine the appeal, I will consider whether the decision conveyed to Ms Blomfield on 14 January 2022 was fair and reasonable. [9] In deciding this appeal, s 562C(1) of the IR Act provides that the Commission may: (a) confirm the decision appealed against; 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. Directive 12/21 [10] Directive 12/21 sets out the mandatory vaccination requirements for all current and prospective health service employees employed under the Hospital and Health Boards Act 2011 ('HHB Act'). [11] Clause 1 of Directive 12/21 provides that compliance with the Directive is mandatory. Clause 2 provides that the purpose of Directive 12/21 is to outline COVID-19 vaccination requirements for existing and prospective employees employed in the identified high-risk groups designated in the Directive. [12] Clause 6 of Directive 12/21 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. -- 4 of 13 -- 5 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 Directive 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). [13] Clause 7 of Directive 12/21 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 Directive 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 Directive. [14] Clause 8 of Directive 12/21 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. • 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. -- 5 of 13 -- 6 • 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 Directive. [15] Clause 10 of Directive 12/21 provides that where an employee is unable to be vaccinated, and 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 Directive for the duration of that exemption. The Appeal [16] This appeal requires me to decide if the internal review decision of Andrew Leggate, A/Chief Information and Infrastructure Officer, SCHHS was fair and reasonable. [17] Ms Blomfield's appeal notice filed on 3 February 2022 contained the following reasons for appeal: I am appealing the decision of having exemption denied for COVID19 vaccine. There has been no risk assessments supplied as requested multiple times from myself. Also, the Immunisation Handbook states that it must be given voluntarily in the absence of undue pressure, coercion or manipulation. Mandating this vaccine and not being able to work because I have not had informed consent in the above mentioned. It also goes against my human rights to keeping my job and having a vaccine that is only provisionally approved and in human trials till 2023. The vaccine also does not stop transmission or protect against getting the virus which then makes myself no more of a risk than a health professional who is fully vaccinated. Please consider my appeal. [18] In her submissions to this appeal filed on 7 March 2022, Ms Blomfield sets out the background to the exemption application, the request for an internal review and the internal review decision. Ms Blomfield states the following, in summary: 13. Vaccine mandates have been proven futile to stop the spread of coronavirus in Australia as they do not stop transmission or infection. 14. The denial of my exemption to work as Advanced Practice Enrolled Nurse is contrary to the right to work as per the International Covenant on Economic, Social and cultural rights as well as the Human Rights Act 2004. 15. The long term effects of the COVID Vaccine are unknown and should be taken by the individual without threat, deception or coercion as I have the right to bodily autonomy. -- 6 of 13 -- 7 [19] Finally, Ms Blomfield's submissions ask that the Commission: …confirm my right as a human being to have my concerns heard and for my exemption under exceptional circumstances to be approved and to continue my employment with Queensland Health without any restrictions or vaccination for COVID19. Ms Blomfield's exemption application [20] The Respondent says that in her role as Enrolled Nurse Advanced Practitioner, Ms Blomfield is categorised as a Group 2 under cl 7.1 of Directive 12/21, which covers employees employed to work in a hospital or other facility where clinical care or support is required. On that basis, Ms Blomfield was subject to the mandatory vaccination requirements at cl 8.1 of Directive 12/21. [21] The Respondent has provided the following documents for my consideration: • Ms Blomfield's exemption application identifying 'other exceptional circumstances'1 • Two letters from Kennedy Spanner Lawyers (dated 27 September 2021 and 29 September 2021) provided by Ms Blomfield on 3 October 2021 outlining concerns regarding the risks associated with COVID-19 and safety of the vaccination, concerns in respect to lack of risk assessment, and concerns regarding the impact of human rights;2 • A letter dated 30 September 2021 where Dr John Wakefield (Director-General) responded to the concerns raised in the Kennedy Spanner Lawyers' letters;3 • A letter dated 15 November 2021 from Colin Anderson (Executive Director People and Culture, SCHHS) advising Ms Blomfield that her application for an exemption had been refused. The letter provided a response to concerns raised by Ms Blomfield about the safety and efficacy of the vaccines and directed Ms Blomfield to comply with Directive 12/21;4 • Ms Blomfield's request for an internal review of the decision to refuse her exemption application;5 and • A letter dated 14 January 2022 (sent on 17 January 2022) from Mr Leggate advising that the internal review had been completed and that the decision to 1 Respondent submissions filed 22 February 2022, Attachment 1. 2 Ibid, Attachment, 2. 3 Ibid, Attachment, 3. 4 Ibid, Attachment, 4. 5 Ibid, Attachment, 5. -- 7 of 13 -- 8 refuse the exemption application had been confirmed, (this is the decision subject of the appeal and was also attached to Ms Blomfield's appeal notice).6 Respondent's submissions Obligations to consult under the Work Health and Safety Act 2011 [22] The Respondent says that it has complied with its obligations to consult under the Work Health and Safety Act 2011 and that the obligation to consult does not impose an obligation to consult with employees on an individual basis, particularly for a workforce the size of Queensland Health and SCHHS. Human Rights taken into account [23] The Respondent says that as set out in the letter dated 14 January 2022, Mr Leggate took Ms Blomfield's human rights into account.7 The Exemption Application [24] The Respondent says that exemption applications are considered on an individual basis, weighted against the Department's health and safety obligations and will only be approved in exceptional circumstances having regard to the public health risk posed by COVID-19. The Department's exemption application proforma makes it clear that vaccine hesitancy and conscientious objection are not, on their own, exceptional circumstances. [25] The Respondent says that exemptions must relate to grounds in respect to the employee as an individual and 'other exceptional circumstances' that affect or concern the individual employee, as opposed to general circumstances which may concern all or a large group of employees. Ms Blomfield did not provide any evidence that her circumstances as an individual were exceptional.8 [26] The Respondent characterises the matters raised by Kennedy Spanner Lawyers on behalf of Ms Blomfield in support of her exemption application as 'vaccine hesitancy'. Ms Blomfield's concerns about the safety and efficacy of the COVID-19 vaccine were considered by the decision maker. It was reasonable for Mr Legate to conclude that these matters do not demonstrate the existence of any exceptional circumstances which would justify the approval of an exemption. Ms Blomfield's role 6 Ibid, Attachment, 6. 7 The relevant part of the letter is set out above at paragraph [3]. 8 Colebourne v State of Queensland (Queensland Police Service) (No. 2) [2022] QIRC 016, [58]. -- 8 of 13 -- 9 [27] The nature of Ms Blomfield's role as an Enrolled Nurse Advanced Practitioner presents a high degree of risk to herself, other SCUH employees and the community with respect to COVID-19 transmission. The Respondent states the following: a) Ms Blomfield's workplace is the SCUH. Any health service facility is a high-risk location with respect to COVID-19 transmission; b) As part of her role, Ms Blomfield is required to physically attend SCUH to undertake her professional duties. There were no alternative duties for Ms Blomfield to perform at home or at another location; c) Ms Blomfield's duties require her to interact and communicate closely with a range of clinical and non-clinical employees and patients throughout the course of each day, including vulnerable members of the community. This increases the risk of transmission of COVID-19 between patients and Ms Blomfield; and d) employees based at other facilities within SCHHS regularly travel across different sites, including SCHHS, to perform their roles. [28] The Respondent says that Ms Blomfield did not satisfy the criteria for the granting of an exemption. While Ms Blomfield may genuinely have reservations about receiving the COVID-19 vaccination, vaccine hesitancy and conscientious objection, by themselves, are not considered exceptional circumstances warranting an exemption. It was reasonably open for the decision maker to uphold the decision not to grant the exemption. Consideration [29] At the outset, I want to make it clear that the matter which I am deciding is whether it was fair and reasonable for Mr Leggate to confirm the outcome of Ms Blomfield's vaccine exemption application. [30] I have reviewed the vaccine exemption application form9 and note that it clearly states that there will be 'extremely limited circumstances' where an employee may detail 'other exceptional circumstances which preclude them from meeting the COVID-19 vaccine requirements'. The form goes on to specifically state that vaccine hesitancy and conscientious objection, by themselves, are not considered exceptional circumstances and that some other extenuating circumstance must exist. The application form goes on to say that 'the employee's circumstances will be considered on an individual basis and that it is expected that there would be limited applications that would meet exemptions requirements'. [31] It is clear from that explanation above, that the onus was on Ms Blomfield or her representatives to provide evidence of extenuating circumstances specific to her own situation that would warrant the granting of an exemption. [32] At section 2(c) of Ms Blomfield's application form, there is a section which asks the applicant to 'please briefly detail the extenuating circumstances which preclude your 9 Respondent submissions 22 February 2021, Attachment 1. -- 9 of 13 -- 10 meeting the COVID-19 vaccination requirements'. In this section, Ms Blomfield has written 'See attached letter from Kennedy Spanner Lawyers dated 27 September 2021 and cover letter'. [33] I have reviewed the cover letter to which Ms Blomfield attached her exemption application. The letter does not refer to Ms Blomfield by name but rather as 'our client'. I note that the decision maker accepted that this was a reference to Ms Blomfield. I have reviewed the 'extenuating circumstances' set out in the cover letter and note that they relate to: a request for a risk assessment; significant safety concerns with the COVID-19 vaccines; a lack of consultation; and lack of opportunity to take personal and independent medical advice. [34] The other letter attached to Ms Blomfield's vaccination exemption form is a letter written by Kennedy Spanner Lawyers on behalf of an unknown number of employees raising concerns surrounding the vaccine and the direction to employees to be vaccinated. I have read the letter and I am unable to identify any extenuating circumstances relating to Ms Blomfield as an individual. [35] I note that in a letter dated 30 September 2021, Dr John Wakefield, Director-General wrote a reply to the Kennedy Spanner Lawyers letter I describe at [34] addressing matters raised in that letter including the efficacy of the vaccine, the risks posed by the virus, the vaccination strategy of Queensland Health and the process to apply for a vaccine exemption. [36] I have reviewed the letter sent to Ms Blomfield by Mr Colin Anderson on 15 November 2021. Mr Anderson notes that Ms Blomfield's grounds for application for an exemption were set out in the letter attached to her exemption application form. Mr Anderson responds to the concerns raised in that letter: Concerns regarding risk and 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 the consultation process undertaken in relation to introducing the vaccination requirement. Queensland Health is of the view that COVID-19 virus presents a significant risk to the health and safety of health care 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 efficacy of this vaccine. Vaccination reduces the risk of hospitalisation and death from COVID-19 by over 90%, 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 immune-compromised patients. 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 -- 10 of 13 -- 11 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 the health and safety of healthcare workers, support staff, their families, and the patients under our care. The decision also took into consideration the potential impact of the decision on human rights. The decision does not itself compel a person to be vaccinated, but it does impose employment consequences upon people who 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, is reasonably justified. The purpose of the requirement to be vaccinated in the Directive and Policy include protecting staff and patients from infection with COVID-19 and the maintenance of a proper and efficient health system in a time of a global pandemic. It should be noted that there is not 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. [37] Mr Anderson then explains the review of Ms Blomfield's request for an exemption: Steps taken to review your request In assessing your application for an exemption, consideration was given to all of the information available including: • Your exemption application form; and • The supporting documentation you provided. Consideration of your application was made with the intention of the Directive and Policy in mind, specifically the requirement to ensure the readiness of the health system in responding to the COVID-19 pandemic, to protect the lives of employees, patients and the community they serve. The requirement to be vaccinated contemplates the high degree of risk to public health associated with work performed in healthcare settings and will ensure Queensland Health can provide a safe environment for both employees and patients. The decision also took into consideration the impact on your human rights. I am satisfied that my decision to refuse your exemption application is compatible with human rights. While this decision engages or limits a number of your human rights, including your right to equality and non-discrimination and your right not to receive medical treatment without consent, 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. [38] It seems to me that Mr Anderson's decision provided Ms Blomfield with specific information in response to the concerns raised in the letter attached to her exemption application even though he had found that none of the concerns represented extenuating circumstances for the purposes of the exemption application. -- 11 of 13 -- 12 [39] There is no evidence before me that Mr Anderson did not read Ms Blomfield's application (and attachments) or that he failed to consider the material she put forward. [40] Mr Anderson's letter informed Ms Blomfield of her right to request a review of the decision. The letter said that Ms Blomfield should 'clearly state the reasons you are not satisfied with the decision and what action you believe would resolve these matters'. [41] I have reviewed Ms Blomfield's request for a review of the decision. Ms Blomfield's reasons are stated as 'I repeat and rely upon my original application and supporting material'. [42] It seems to me therefore, that in conducting his review of the decision of Mr Anderson, Mr Leggate was confined to considering the same material that was available to Mr Anderson. After listing documentation and information he had considered and the steps undertaken by the decision maker, Mr Leggate formed the view that the 'EDP&C has undertaken appropriate steps and consideration in relation to your mandatory vaccination exemption request' and that 'accordingly, you are not exempt from the requirements of HED [Directive] 12/21'. [43] Ms Blomfield has not provided me with any submissions to suggest that Mr Leggate's decision was not fair and reasonable. Ms Blomfield's submissions in this matter are focused on the efficacy of vaccines, her human rights and the long-term effects of the COVID-19 vaccine. [44] There is nothing in Ms Blomfield's submissions that points to extenuating circumstances relating specifically to her circumstances. As best I can make out, the only reference to the decision of Mr Leggate being appealed is that Mr Leggate refused the exemption application 'based on that it did not encroach on my human rights'. [45] Mr Leggate's decision outlines the material he considered and the steps taken to review the decision of Mr Anderson. While the decision addresses Ms Blomfield's human rights, I don't think it would be correct to characterise Mr Leggate's decision as solely upholding the exemption application decision on the basis of it 'not encroaching on Ms Blomfield's human rights'. [46] In any case, I find that both Mr Leggate and Mr Anderson have had regard to Ms Blomfield's human rights and that their finding that the decision does have some impact on human rights but that any limitation of her rights was justified by the circumstances and was reasonably open to them. [47] There is no evidence that Ms Blomfield's exemption application was not properly considered, either initially by Mr Anderson or upon review by Mr Leggate. -- 12 of 13 -- 13 [48] While it is not in dispute that Ms Blomfield had applied under the category of 'other exceptional circumstances', I have reviewed the material to ensure that Ms Blomfield had not provided some other evidence that could have been considered with regard to the medical or religious exemption categories. [49] I find that Mr Leggate's decision to uphold the decision of Mr Anderson that Ms Blomfield is not exempt from the requirements of Directive 12/21 was fair and reasonable. [50] The Decision appealed against is confirmed. -- 13 of 13 --