Godwin v State of Queensland

Public Service Act 2008 (Qld), s 194

Health Employment Directive No 12/21 - Employee COVID-19 vaccination requirements,

Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245

Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018)

• [1] Mr Alan Godwin is employed by the State of Queensland (Queensland Health) ('the Department'), as a Health Information Officer AO3, Medical Records, Redland Hospital within Metro South Health ('MSH').

• [2] Mr Godwin has been employed with the Department since approximately 4 September 2008.

• [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,

Mr Godwin falls within one of those categories of employees.

• [4] On 6 October 2021, Mr Godwin applied for an exemption from the Directive on the basis of other exceptional circumstances. Mr Godwin stated in his exemption application that he had 'many different health concerns over the years' noting specifically, problems with his heart and chest and also raises concerns about the long-term effects of COVID-19.

Mr Godwin did not attach any documentation in support of his exemption application.

• [5] On 19 October 2021, the MSH requested that Mr Godwin provide further information to support his exemption application. On 28 October 2021, Mr Godwin provided a letter from Dr Jose Alapatt stating that Mr Godwin advised him that he was 'concerned about having the COVID-19 vaccination'. The letter also included a copy of Mr Godwin's past medical history but did not include evidence of a recognised medical contraindication to a COVID-19 vaccination.

• [6] On 27 January 2022, the Department determined to refuse Mr Godwin's application for exemption from compliance with the Directive. Mr Godwin sought an internal review of this decision on 10 February 2022 and attached a letter from the West Middlesex University Hospital dated January 1997 to his request.

• [7] By letter dated 17 February 2022, the Department advised Mr Godwin that it had confirmed the decision dated 27 January 2022 and that his application for exemption from compliance with the Directive on the basis of other exceptional circumstances had been denied ('the decision'). The Department directed Mr Godwin to receive the required dose of a COVID-19 vaccination and provide written confirmation that he had received the required dose within seven days of receipt of the decision ('the direction'). The Department further advised Mr Godwin that should he fail to follow the direction, he may be liable for disciplinary action pursuant to s 187(1)(d) of the Public Service Act 2008 (Qld) ('the PS Act').

• [8] By appeal notice filed in the Industrial Registry on 15 March 2022, Mr Godwin appealed the decision of the Department and relies on the following grounds in support of his appeal, as set out in the appeal notice:

I'm doing this appeal because I have complied with every requirement with the full direction of my department management. Including submitting an application for exemption and leaving the premises when directed. I submitted a further detailed exemption application with covering documents on the 10/02/22.

I will be 65 years old this year and have worked for Queensland Health for the past 14 years. Now I'm left feeling mentally and physically ill, unable to sleep the night without sleeping tablets (Visit to Dr Patrick Chen). I am stressed to the limit and I am suffering from chest pains, all brought on from letters threatening [sic] disciplinary action, dismissal, suspension from duty and suspension without pay.

I have stated I am more than happy to return to work wearing a mask, I am researching other vaccine options.

• [9] The matter was mentioned before the Commission on 25 March 2022. During the mention, Mr Godwin confirmed that he had not complied with the direction provided in the decision letter dated 17 February 2022, and the Department confirmed it had commenced a show cause process against Mr Godwin in relation to the non-compliance with the direction.

• [10] During the mention of the matter, the Department confirmed that it would not take any further steps with respect to the disciplinary process against Mr Godwin until the resolution of this appeal.

• [11] Following the mention, the Commission issued directions to the parties requiring the filing of written submissions in relation to the appeal.

• [12] Both parties complied with the directions.

• [13] 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 Industrial Relations Act 2016 (Qld) ('the IR Act') by the Queensland Industrial Relations Commission.

• [14] 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.

• [15] 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, rather, involves a review of the decision arrived at and the decision-making process associated with it.[4]

• [16] For the reasons contained herein, I have found that the decision was fair and reasonable.

• [17] In the decision, the decision maker ultimately determined that the decision dated 27 January 2022, which determined to refuse Mr Godwin's application for an exemption from complying with the Directive was appropriate, and that the original decision maker undertook the appropriate steps and consideration in relation to the mandatory vaccination exemption request.

• [18] The decision maker provided the following reasons in support of the decision:

I am satisfied that HED12/21 is lawful and complies with section 58 of the HR Act and the Department's consultation and risk assessment obligations under the WHS Act and WHS Regulation.

Further, I have had the opportunity to review your concerns and the circumstances relevant to the declinature of your exemption request. I can advise having reviewed the circumstances surrounding the decision to decline your exemption request, that I am not persuaded that the decision made was unreasonable.

• [19] The decision maker also considered the effect of the decision on Mr Godwin's human rights and provided as follows:

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.

I am satisfied that the decision to confirm the refusal of your exemption application is compatible with human rights. While this decision engages or limits a number of your human rights, including your right to freedom of thought, conscience, religion and belief and your right to freedom of expression, 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.

The purpose of protecting your colleagues, and people accessing health services from the risk of COVID-19 through vaccination promotes their human rights to life and health, as well as your own. These are important considerations and should be given weight at this particular time. I do not consider that there are no other less restrictive yet effective ways to achieve those purposes.

• [20] 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;

• [21] 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').

• [22] Section 51A of the HHB Act provides for the issuing of health employment directives and is set out in the following terms:

(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.

• [23] 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.

• [24] 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.

• [25] 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).

• [26] 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.

• [27] Clause 7.1 of the Directive also includes a table[5] which separates Queensland Health employees into a group number based on their employee cohort. Mr Godwin 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.

• [28] 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:

1. have received at least the first dose of a COVID-19 vaccine by 30 September 2021; and
2. 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:
  1. 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.
  2. 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.

• [29] 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

• [30] 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.

• [31] Mr Godwin did not identify any grounds of appeal in his appeal notice. However,

Mr Godwin, in his request for a review of the decision,[6] stated that he felt the decision maker did not consider his 'age (64) and medical history and concerns'.

• [32] In summary, Mr Godwin contends as follows:

(a) Mr Godwin submitted the exemption application because of his past medical history, which includes, aggressive high grade Non-Hodgkin's Lymphoma and both radio and chemotherapy;

(b) during Mr Godwin's recovery, it was determined that Mr Godwin's heart had been weakened by mitral valve prolapse;

(c) the Pfizer company hid clinical trial results from the public which included adverse effects such as heart attacks, strokes, paralysis and myocarditis and failed to mention that many vaccinated people died during the earlier trials;

(d) many foreign doctors are reporting the return of cancers which are triggered by the COVID-19 NRMA vaccine;

(e) pathologist Doctor Ryan Cole has made various statements in relation to the COVID-19 vaccine, including that there has been an alarming uptake in the number of cancers and immune system responses, that Dr Ryan Cole is seeing an 'alternation of the innate immune response' which are coinciding with the rollouts of the COVID-19 vaccine and that there are disturbing trends including the appearance of childhood disease in adults;

(g) the MSH have violated Mr Godwin's human rights including his right to work, freedom to choose, right to health, right to life and rights of our children;

(h) the pressure, intimidation and threatening documentation have had a major impact on Mr Godwin's health;

(i) Mr Godwin does not recall MSH focusing on Queenslanders improving their health, both physically and mentally to have a strong immune system; and

(j) Mr Godwin is monitoring the Novavax vaccine as an alternative.

• [33] The Department submits that the decision to refuse Mr Godwin's application was fair and reasonable. The Department contends that the Directive is both lawful and reasonable and that the Department complied with its consultation and risk assessment obligations under the Work Health and Safety Act 2011 (Qld).

• [34] The Department makes the following submissions with respect its decision:

21. Dr Cleary properly considered Mr Godwin's exemption request. Dr Cleary carefully considered Mr Godwin's submissions about his medical history. He 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 MSH. On this basis, Dr Cleary confirmed the decision to refuse Mr Godwin's exemption request.

22. Exemption applications are considered on an individual basis and weighed 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. 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 a large group of people. Mr Godwin did not provide any evidence that his individual circumstances were exceptional such that they warranted priority over the health and safety of his colleagues, patients, and the public who attend Redland Hospital.

23. Mr Godwin has claimed the Department ignored his concerns regarding the safety and efficacy of vaccination, having regard to his age and medical history. This is not correct. Dr Cleary carefully considered all evidence before him when determining whether to grant or refuse to provide Mr Godwin an exemption. Mr Godwin did not provide any specific evidence that would exclude him from being able to safely receive the current vaccines. He did not provide any medical evidence that would preclude him from being safely administered the required doses of a COVID-19 vaccine.

24. Dr Cleary assured Mr Godwin that COVID-19 vaccines are not experimental and have undergone all of the usual assessment including peer review and publication of phase one, two and three clinical trials and review by multiple licencing bodies, including the Therapeutic Goods Administration. Further, the COVID-19 vaccinations have been approved by the Therapeutic Goods Administration and the Australian Technical Advisory Group on Immunisation. The TGA's approval of relevant vaccines is a matter of public record and is evidence of their safety and efficacy. (footnotes omitted).

• [35] It is clear from Mr Godwin's written submissions and the material put before the decision maker that, Mr Godwin is hesitant to be administered one of the COVID-19 vaccines due primarily to his medical history, although he also nominates his age as a factor.

Mr Godwin provided the decision maker with two medical reports from October 2021 and January 1997 in support of his application for an exemption, however, neither of these reports state that Mr Godwin has a recognised medical contraindication which would preclude him from being safely administered an available COVID-19 vaccine. Indeed, the medical reports did not express any medical opinion which could be seen to support Mr Godwin's application for an exemption.

• [36] A statement of Mr Godwin's medical history is not evidence, in and of itself, of a medical contraindication. Further, Mr Godwin does not say he has a recognised medical contraindication to the COVID-19 vaccines. Rather, Mr Godwin expresses his reluctance to take a COVID-19 vaccine as follows:

My legitimate concern is that the long term effects of the Covid jab have not been fully researched and analysed and given my medical history I am concerned on how this will affect my long term health...

• [37] Vaccine hesitancy is not a ground for exceptional circumstance that would support an exemption application. While Mr Godwin is entitled to hold the views he does in relation to the safety and efficacy of the COVID-19 vaccination, it is not incumbent on the Department to accept Mr Godwin's view.[7]

• [38] Mr Godwin does not argue that the Directive is not lawful and reasonable. In the circumstances, I am satisfied that it was open on the material before the decision maker to form a view that it was appropriate for Mr Godwin's application for an exemption to be denied.

• [39] Consequently, I am satisfied that the decision subject to the appeal is fair and reasonable.

• [40] Accordingly, I make the following order.

Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed.

[1] Health Employment Directive No 12/21 - Employee COVID-19 vaccination requirements, cls 1, 7.1 and 8.1.

[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] Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018).

[6] Attached to the Appellant's written submissions filed on 1 April 2022.

[7] Tilley v State of Queensland (Queensland Health) [2022] QIRC 002, [39] - [42].