Edwards v State of Queensland (Queensland Health) [2022] QIRC 91

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Edwards v State of Queensland (Queensland Health) [2022] QIRC 091 PARTIES: Edwards, Lisa (Appellant) v State of Queensland (Queensland Health) (Respondent) CASE NO.: PSA/2022/15 PROCEEDING: Public Service Appeal – Fair Treatment Decision DELIVERED ON: 18 March 2022 MEMBER: HEARD AT: Power IC On the papers ORDER: Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed. CATCHWORDS: PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – Public Service Appeal – appellant employed by the State of Queensland at the Torres and Cape Hospital and Health Service – where the Health Employment Directive No. 12/21- Employee COVID-19 vaccination requirements required employees who are employed to work in a hospital or other facility where clinical care or support is provided must have received 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 – appellant sought an exemption due to genuine religious belief – exemption was refused – risk posed to the health and wellbeing of patients, colleagues and other stakeholders – decision to deny exemption fair and reasonable -- 1 of 11 -- 2 LEGISLATION: Hospital and Health Boards Act 2011 (Qld), s 51A Human Rights Act 2019 (Qld), s 17 Industrial Relations Act 2016 (Qld), ss 562B and 562C Public Service Act 2008 (Qld), s 194 CASES: Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245 Gilmour v Waddell & Ors [2019] QSC 170 Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018) Tilley v State of Queensland (Queensland Health) [2022] QIRC 002 Reasons for Decision Introduction [1] Ms Lisa Edwards ('the Appellant') is employed by the State of Queensland (Queensland Health) ('the Respondent') as a Business Support Officer, Clinical Governance Unit at the Torres and Cape Hospital and Health Service ('TCHHS'). [2] On 28 November 2021, the Appellant submitted an 'Employee COVID-19 vaccine exemption application form' ('the exemption application') annexing a letter of Pastor Morgan Slykerman, Cooktown Baptist Church dated 23 September 2021, seeking for an exemption from obtaining any COVID-19 vaccination based on a genuinely held religious belief in accordance with the Health Employment Directive 12/21 regarding employee COVID-19 vaccination requirements ('the Directive'). [3] By letter dated 3 December 2021, Dr Marlow Coates, Acting Executive Director Medical Services, TCHHS advised the Appellant's exemption application was refused by the TCHHS COVID Vaccination Exemption Committee and Queensland Health Advisory Panel. The Appellant was directed to comply with the Directive to receive the required dose and provide confirmation of compliance within seven days of receipt of the letter. [4] On 9 December 2021, the Appellant requested an internal review of the decision to deny the Appellant's exemption application. -- 2 of 11 -- 3 [5] By letter dated 21 December 2021, Mr Dean Davidson, Executive Director Asset Management, TCHHS confirmed the decision to refuse the Appellant's exemption application. [6] On 11 January 2022, the Appellant filed an appeal notice, appealing against the decision of Mr Davidson dated 21 December 2021. I note that the Appellant mischaracterises her appeal in that she has indicated that she is appealing against a disciplinary decision in the appeal notice. However, as no decision regarding discipline has been made, the nature of the decision appealed against is more appropriately characterised as a fair treatment decision, a decision which the Appellant considers unfair and unreasonable. Accordingly, I will proceed to determine this appeal as a fair treatment appeal, pursuant to s 194(1)(eb) of the Public Service Act 2008 (Qld) ('the PS Act'). Appeal principles [7] The appeal must be decided by reviewing the decision appealed against.1 Because the word 'review' has no settled meaning, it must take its meaning from the context in which it appears.2 An appeal under ch 11 pt 6 div 4 of the Industrial Relations Act 2016 (Qld) ('the IR Act') is not by way of rehearing,3 but involves a review of the decision arrived at and the decision making process associated therewith. [8] The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.4 The issue for determination is whether the decision of Mr Davidson dated 21 December 2021 to refuse the Appellant's exemption application was fair and reasonable. Findings which are reasonably open to the decision maker are not expected to be disturbed on appeal. What decisions can the Industrial Commissioner make? [9] In deciding this appeal, s 562C of the IR Act provides that the Industrial Commissioner may: (a) confirm the decision appealed against; or (b) set the decision aside and substitute another decision; or (c) set the decision aside and return the issue to the decision maker with a copy of the decision on appeal and any directions considered appropriate. The Directive [10] On 11 September 2021, pursuant to s 51A of the Hospital and Health Boards Act 2011 (Qld) ('HHB Act'), the chief executive of the Respondent issued the Directive. 1 Industrial Relations Act 2016 (Qld) s 562B(2) ('IR Act'). 2 Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261. 3 Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5 as to the former, equivalent provisions in s 201 of the PS Act. 4 IR Act s 562B(3). -- 3 of 11 -- 4 [11] Clause 1 of the Directive provides that compliance with the Directive is mandatory. Clause 4 of the Directive provides that the Directive applies to all health service employees and prospective employees employed under the HHB Act. [12] Clause 8.1 of the Directive provides: 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. • 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. [13] Table 1 of the Directive provides for COVID-19 vaccination requirements for health service employees: COVID-19 vaccination requirements for health service employees Group No. Employee Cohort Group 1 All health service employees in residential aged care facilities and residential aged care within a multipurpose health service. Group 2 All health service employees who are employed to work in a hospital or other facility where clinical care or support is provided. This may include: • both clinical and non-clinical employees. • hospitals, quarantine facilities, vaccination clinics/hubs, fever clinics, dental clinics, outpatient services, prison health services, disability care services, including residential or sub-acute care for people with disability, or any other location where Queensland Health employees provide care or support to patients/clients. • public health officers/teams, emergency operations centre staff including employees working in Hospital Emergency Operation Centres and Retrieval Services Queensland. Group 3 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. -- 4 of 11 -- 5 This may include: • the requirement to attend hospitals, quarantine facilities, vaccination clinics/hubs, fever clinics, dental clinics, outpatient services, prison health services, disability care services, including residential or sub-acute care for people with disability, or any other location where health service employees provide care or support to patients/clients. [14] Clause 10.2 of the Directive provides an exemption application will be considered where the employee has a recognised medical contraindication, the employee has a genuinely held religious belief or where another exceptional circumstance exists. Grounds of Appeal [15] The Appellant, in the appeal notice, notes that her exemption application was based on the Appellant's faith 'which commands me to love my neighbour as myself' and outlined extensive reasons as to why the Appellant does not support the COVID-19 vaccines. [16] As I understand the appeal notice, the Appellant also appeals the decision of Mr Davidson dated 21 December 2021 on the grounds that the Appellant's specific concerns have not been adequately addressed and that the Appellant has only received vague paragraphs stating that the COVID-19 vaccine is safe. Submissions [17] The Commission issued a Directions Order calling for submissions from both parties following receipt of the appeal notice. The submissions are summarised below. Respondent's submissions [18] The Respondent submits that the Appellant, as a Business Support Officer in the Clinical Governance Unit, is categorised as Group 2 under cl 7.1 of the Directive. [19] The Respondent highlights that the letter of Pastor Slykerman dated 23 September 2021 which accompanied the exemption application simply stated that the Appellant 'has a genuinely held religious belief that prevents her from receiving any covid 19 injection'. [20] The Respondent submits that Ms Danielle Sharpley, Senior Human Resources Business Partner, TCHHS had sent an email on 22 October 2021 to the Appellant informing her that the letter attached to her application did not meet the required criteria and requested additional information in support of the exemption application by 26 October 2021. The Appellant then provided a statutory declaration from Pastor Slykerman dated 4 November 2021 in support of the exemption application where extracts from the New King James Bible were quoted and confirming that the Appellant is adherent to these religious teachings. [21] The Respondent submits that the decision dated 21 December 2021 to confirm the decision to refuse the Appellant's exemption application was fair and reasonable as: -- 5 of 11 -- 6 (a) the decision maker carefully considered the Appellant's submissions and weighed these against the objects and requirements of the Directive, noting the high risk to the health and wellbeing of the Appellant, patients, colleagues and other key stakeholders who access services from TCHHS including from vulnerable communities; (b) the matters raised by the Appellant in support of her exemption application can be characterised as evincing her personal preference not to receive a vaccine, namely due to concerns regarding the safety and efficacy of the vaccines. It is evident from the reasons for the decision that the Appellant's concerns about the safety and efficacy of the COVID-19 vaccine were taken into account by the decision maker; (c) the Appellant did not provide any evidence of specific adverse medical conditions, including any contraindications to her being able to be safely administered the current vaccines; (d) the Appellant's concerns about the safety and efficacy of children, rather than adults, being vaccinated for COVID-19 is not relevant to her exemption application; (e) the Appellant performs an important role in an important area that has been covered by the Directive for the safety of the Appellant, her colleagues and the broader community; (f) the nature of the Appellant's role presents a high degree of risk to the Appellant, other TCHHS employees and the community with respect to COVID-19 transmission. The Respondent submits, in particular: a) Ms Edwards' role is based in Cooktown. Her workstation is located in a shared office demountable with access to Cooktown Multipurpose Health Service at all times; b) Ms Edwards' position provides direct support to the Director of the Clinical Governance Unit, the Infection Prevention and Control team and other employees of TCHHS as required; c) while Ms Edwards' role is administrative and non-clinical in nature, the duties she performs require her to interact and communicate closely with a range of clinical and non-clinical employees throughout the course of each day; d) patients from highly vulnerable and remote communities within the Torres Strait and Cape York regularly travel to Cooktown Multipurpose Health Service to access health care services; and e) employees based at other TCHHS facilities regularly travel across different sites, including attending at Cooktown Multipurpose Health Service. (g) it was reasonably open to the decision maker to determine that the Appellant's submissions regarding her genuinely held religious belief did not justify the approval of an exemption having regard to the risk to public health arising from COVID-19; (h) it was reasonably open for the decision maker to determine the Appellant's concerns regarding the risk, safety and efficacy of COVID-19 vaccines did not warrant an exemption on the grounds of 'another exceptional circumstance'; -- 6 of 11 -- 7 (i) the Appellant's human rights were taken into account and the decision maker determined any limitation to the Appellant's human rights was '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'; and (j) it was not unreasonable for the decision maker to confirm the decision to refuse the Appellant's exemption request after taking into account her submissions regarding her genuinely held religious belief and weighing up the public health risk of COVID-19 and the human rights of the Appellant, her family, colleagues and the broader community. Appellant's submissions [22] The Appellant, in her submissions, made submissions relating to the initial exemption application refusal decision of Dr Coates dated 3 December 2021 as well as the internal review decision of Mr Davidson dated 21 December 2021. As noted above at [8], the matter for determination is whether the internal review decision of Mr Davidson was fair and reasonable. Accordingly, I will address the Appellant's submissions relating to the internal review decision of Mr Davidson. [23] The Appellant submits, with regard to the exemption application, that the assessment criteria for a religious exemption was requested and Ms Sally O'Kane, Acting Executive Director Workforce and Engagement, replied with minimal information. The Appellant submits that her exemption application aligned with the information provided by Ms O'Kane. [24] The Appellant submits the following with respect to having a valid religious exemption: My Religious Exemption is based on my genuine held religious belief (faith) and relationship with God. Scriptures Mark 12:29-31, Proverbs 18:16-18 and Deuteronomy 22:8 were quoted with the following explanation. As a Christian I am to love my neighbour as myself. This requires forethought of future safety and preservation of life, along with listening to both sides of an issue before making a decision. 'Neighbour', in Mark 12:31 refers to your fellow man, regardless of age. Therefore, children are included. Vaccine concerns for myself and my neighbour (which includes all humans) were raised in my exemption request. Jesus teaches in Matt 18:6, 'it would be better for a person to have a millstone hung around their neck and be drowned in the sea than to hurt a child', evincing the care of children is important within my faith. The respondent writes; 'the matters I raised can be characterised as evincing my personal preference not to be vaccinated', and 'my concerns for the safety of children being vaccinated is not relevant to my exemption application'. This may be QH's opinion. However, it is completely untrue. The matters raised are based on my concerns, based on the Word of God, for myself and all people regarding the overall safety and long-term effects of the vaccine mandate. [25] The Appellant submits that refusing the Appellant's exemption application is unfair and unreasonable as the Respondent has failed to: (a) comply with the direction given by the Respondent's Director General on how to approach staff members, including the Appellant, who decline to be vaccinated; -- 7 of 11 -- 8 (b) acknowledge or provide information in regard to the Appellant's concern regarding mRNA, an ingredient of covid vaccines. The Appellant submits that the onus is on the Respondent to provide the Appellant with information which has been considered to prove that mRNA is safe for human use; (c) validate the legitimacy of their decision to limit human rights. The Appellant submits that the decision states the decision can be justified in limiting the Appellant's human rights, however there is no reference to any supporting legislation; and (d) provide appropriately educated people to assess the information the Appellant provided in support of her concerns, before ruling against the Appellant. [26] The Appellant highlights that information was provided in her internal review request indicating that other countries are treating COVD-19 patients successfully with ivermectin, which eliminated their countries COVID-19 crisis. The Appellant submits that the onus is on the Respondent to 'provide additional information' explaining how all directives and actions that support vaccine mandates are less restrictive than treating patients with ivermectin and eliminating the COVID-19 pandemic. [27] The Appellant outlines the following, submitting that it is impossible for the Appellant to give informed consent to be vaccinated while concerns raised remain unaddressed by the Respondent: The COVID19 Emergency Response Act 2020 Section 4 (1) … applies despite any other Act or law other than the Human Rights Act 2019. Human Right Act 2019 section 17(C) Protection from torture and cruel inhumane or degrading treatment. A person must not be subjected to medical or scientific experimentation or treatment without the person’s full, free informed consent. According to criminal law – a) The injection is forced through skin. The skin is broken and the skin is severed, which is technically assault. b) The vaccine is disbursed throughout my body, which is permanent and health effects are permanent, which is technically battering & wounding. c) Torture is state sanctioned assault, battery and wounding. d) If valid consent is not obtained then I am assaulted. e) Valid consent in criminal law is pre voluntary agreement that is not forced or coerced. When a public health order or directive is mandatory, voluntary consent is absent from the equation. f) Torture is an absolute criminal liability offence. There is no defence under the law to the offence of torture. The state of mind of the accused and the circumstances surrounding the offence are irrelevant and the person will be convicted no matter the consequence. Anyone who joins the narrative to put pressure on others to submit to covid19 vaccinations may be liable for the above crimes. This is known as complicity in a crime. Appellant's further submissions [28] On 28 February 2022, the Appellant filed an application in existing proceedings, seeking to file further submissions. On 1 March 2022, the Commission granted leave for the Appellant to file further submissions to address the Respondent's submissions. [29] The substance of the Appellant's further submissions address the decision maker and the decision itself as oppose to responding to the Respondent's submissions. The Appellant outlines that Mr Davidson had stated in the decision that he had 'considered' all -- 8 of 11 -- 9 information provided and questions the validity of such statement given the hundreds of hours it would likely have taken due to the large volume of documents and time of recorded sessions. [30] The Appellant referred to several articles relating the research and efficacy of COVID- 19 vaccinations and outlined comparisons of vaccination rates against COVID-19 cases in different countries. [31] The Appellant submits that she worked from home in 2020 for five months without complaint and that vaccinated staff are now working from home. The Appellant submits that this opportunity has not been extended to her in light of the Appellant's perceived 'high risk', even though the Appellant supports 80% of the Clinical Governance team remotely on a daily basis. [32] In response to the Respondent's submission regarding the Appellant's vaccine hesitancy, the Appellant highlights that she willingly received booster shots for measles, mumps, and rubella upon gaining employment with the Respondent. The Appellant submits that this proves that the Appellant is not vaccine hesitant and that her faith-based concerns regarding the COVID-19 vaccines and mandates are for the overall well-being of all humanity, including the Appellant herself. [33] The Appellant reiterates that the Human Rights Act 2019 (Qld) and criminal laws are being dishonoured. Consideration [34] Consideration of an appeal of this kind requires a review of the decision to confirm that the rejection of the Appellant's exemption application was fair and reasonable in the circumstances. [35] The Appellant sought an exemption from the requirements of the Directive based on a genuinely held religious belief. The decision under appeal is of Mr Davidson who conducted an internal review of Dr Coates' decision and confirmed that the decision to deny the exemption was fair and reasonable. The Appellant's grounds of appeal can be summarised as outlining objections to the COVID-19 vaccination on the basis of alleged harm to children and liability issues with pharmaceutical companies. The only reference under the appeal notice to a genuinely held religious belief are as follows: My exemption request, being based on my faith which commands me to love my neighbour as myself, Mark 12:29-31, and requires me to think of their future safety and preservation of life – Deut 22:8. I have listened to medical and scientific experts, both for and against the vaccines as God says to do in Prov 18:16-18. [36] It is not the case that the provision of a letter confirming affiliation to a religious group ensures that an employee will receive an exemption. The exemption application outlines the following statement: It is important to be aware that exemption requests will be considered in accordance with Queensland Health's obligations and that approval will be only provided in exceptional circumstances. -- 9 of 11 -- 10 [37] Whilst there is no evidence to suggest that the Appellant's religious beliefs are not genuinely held, the grounds of appeal and submissions indicate that the Appellant objects to the COVID-19 vaccine primarily on other grounds. The statutory declaration provided by Pastor Slykerman in support of the Appellant's exemption application also indicates that the Appellant's concerns are more broadly related to concerns regarding the efficacy and safety of the vaccines. The Appellant's position could reasonably be considered as 'vaccine hesitant' with respect to COVID-19 vaccinations specifically.5 Whist this hesitancy may be based upon genuinely held views, it is not incumbent upon the Respondent to accept those views.6 The exemption application clearly states that vaccine hesitancy and conscientious objection were not, on their own, exceptional circumstances. [38] Mr Davidson's decision outlines his considerations in reviewing the decision, including supporting documentation provided by the Appellant, the exemption review request, and the exemption outcome decision made by Dr Coates. Mr Davidson considered that Dr Coates had undertaken appropriate steps and consideration in relation to the Appellant's exemption application. There is no evidence that the process adopted was anything other than fair and reasonable. [39] Mr Davidson provided clear reasons for his decision: Your exemption request based upon a genuinely held religious belief was considered in detail against the requirements of the Directive. The Directive considers the high level of risk to the health and wellbeing of patients, your colleagues, and other key stakeholders who access services from TCHHS from already vulnerable communities. In your exemption review request dated 9 December 2021, you provided several documents and references to the safety and efficacy of the vaccine. Queensland Health is of the view that the COVID-19 virus presents 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 word demonstrates not only the safety of the COVD-19 vaccine, but the very high-level efficacy of this vaccine. COVID-19 vaccines are not experimental. They 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. Following my review, I can advise that the decision regarding your exemption request has not changed and your request remains denied. [40] Mr Davidson addressed the basis upon which the exemption application was made and also considered the broader concerns raised by the Appellant. [41] Mr Davidson demonstrated consideration of the Appellant's human rights, acknowledging that the public health directions engage or limit the right to equality and non-discrimination and the right not to receive medical treatment without consent. Mr Davidson concluded his consideration of these rights with the following: …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. 5 Noting that the Appellant submitted that she had received vaccines for pertussis, varicella, hepatitis B and a booster shot for measles, mumps and rubella. 6 Tilley v State of Queensland (Queensland Health) [2022] QIRC 002. -- 10 of 11 -- 11 [42] The Appellant submits that the vaccination requirement is contrary to s 17(c) of the Human Rights Act 2019 (Qld) which provides for protection from torture and cruel inhumane or degrading treatment. I accept that the rights to equality, non-discrimination and the right not to receive medical treatment without consent are impacted by the Directive and am satisfied that the decision maker provided an adequate explanation as to the justification for the limitation of those rights. I do not, however, consider that the Directive could reasonably be characterised as engaging s 17(c). [43] The Appellant submits that the extensive submissions provided to the Respondent would take in excess of 100 hours to consider due to the volume of documents and the accumulated time of the recorded sessions. The Appellant suggests that Mr Davidson did not consider all of the material provided. It was not necessary for Mr Davidson to refer to every document provided nor to respond to every submission in his decision. The decision demonstrates that Mr Davidson considered the Appellant's application for exemption on the basis of her genuinely held religious belief along with her broader opposition to the vaccination requirements of the Directive. It was open for Mr Davidson to determine that the decision to reject the exemption application was reasonable based on the material before him. [44] The relevant principles in considering whether a decision is 'unreasonable' were outlined by Ryan J in Gilmour v Waddell & Ors:7 The focus of a review of the reasonableness, or unreasonableness, of a decision is on whether the decision is so unreasonable that it lacks intelligent justification in all of the relevant circumstances. The legal standard of unreasonableness is to be considered by reference to the subject matter, scope and purpose of the statute conferring the power. A court considering an argument that a decision is unreasonable is not undertaking a merits review. If a decision may be reasonably justified, then it is not an unreasonable decision, even if a reviewing court might disagree with it.8 [45] Applying the principles outlined above, I do not consider that the decision lacks justification in the circumstances. Based on the information before me, I am satisfied that the internal review decision confirming the decision not to grant the Appellant an exemption under the Directive was fair and reasonable. [46] I order accordingly. Order Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed. 7 [2019] QSC 170. 8 Ibid [207]-[209]. -- 11 of 11 --