Gundrum v State of Queensland [2022] QIRC 226 | Case summary

Queensland Industrial Relations Commission|2022-06-15|Before: Dalton J

PUBLIC SERVICE - APPEAL - appeal against a fair treatment decision - where appellant is employed as a leading hand electrician - where the Health Employment Directive No.12/21 - Employee COVID-19 vaccination requirements required the Appellant to be vaccinated - where appellant applied for an exemption under 'other exceptional circumstances' - where exemption refused by the decision maker - consideration of adequacy of reasons - consideration of risk assessment and consultation obligations - consideration of risk posed to the health and wellbeing of patients, colleagues and other stakeholders - decision fair and reasonable

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

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

Brasell-Dellow & Ors v State of Queensland, (Queensland Police Service) & Ors [2021] QIRC 356

Kathryn Roy-Chowdhury v The Ivanhoe Girls' Grammar School [2022] FWC 849

[1] Mr Steven Gundrum ('Mr Gundrum') is employed by the Darling Downs Hospital and Health Service ('the Health Service') as a Leading Hand electrician. Mr Gundrum has been in employment with the Health Service for approximately seven years.

[2] Mr Gundrum was the subject of the Health Employment Directive No. 12/21 - Employee COVID-19 vaccination requirements ('the directive') issued on 11 September 2021 and was required to be vaccinated against COVID-19 ('Covid') in accordance with the terms of the directive.

[3] On 28 September 2021, Mr Gundrum applied for an exemption from vaccination in accordance with clause 10 of the directive under the category of 'other exceptional circumstances'. Mr Gundrum cited fibromyalgia and dormant glandular fever and Ross River fever as pre-existing conditions. In the context of these conditions, Mr Gundrum submitted in his exemption application that:

There are many reported cases worldwide of reactivation of autoimmune conditions and dormant viruses that are yet to be studied.

[4] Mr Gundrum further submitted that he had consulted with two general practitioners and one immunologist who he says were not able to provide any clarity or information pertaining to the long-term safety of the vaccines. Notwithstanding the absence of any medical opinion supporting his application, Mr Gundrum sought an exemption on this basis.

[5] Mr Gundrum also used his exemption application to seek that a risk assessment be undertaken. The risk assessment he proposed characterised Covid vaccines as the risk rather than Covid.

[6] Mr Gundrum's exemption application was not accompanied by any medical evidence to support his concerns regarding reactivation of autoimmune conditions, adverse reaction data or risks associated with the vaccines.

[7] Following his exemption application, on or about 19 October 2021, Mr Gundrum subsequently submitted a workers' compensation medical certificate. The certificate, in very basic terms, records a diagnosis of 'fibromyalgia flare, anxiety and stress'. According to the practitioner who authored the certificate, the stated causative factor of these conditions was:

[8] Mr Gundrum's exemption application was considered by Ms Hayley Farry on 4 January 2022. Ms Farry's decision, which is attached to Mr Gundrum's appeal notice, deals with Mr Gundrum's exemption under three categories, namely:

Mr Gundrum's personal concerns about having the vaccine due to medical conditions and his psychological state;

Mr Gundrum's concerns regarding the risks and consultation associated with the vaccine; and

Mr Gundrum's concerns about safety of the Covid vaccines generally.

[9] Ms Farry refused the exemption application. Ms Farry confirmed that an internal medical consultation was undertaken and the conditions cited by Mr Gundrum were not recognised as medical contraindications. Further, with respect of his psychological symptoms, Ms Farry rejected them as sufficient grounds for an exemption and encouraged Mr Gundrum to continue to seek treatment and support through his treating medical practitioner.

[10] Further, Ms Farry confirmed that the consultation and risk assessment had been done with respect to the Covid vaccines and that in the circumstances, Covid itself was regarded as the greater risk. Ms Farry concluded that the remaining concerns expressed by Mr Gundrum were in the nature of vaccine hesitancy and did not meet the threshold of exceptional circumstances.

[11] On 19 January 2022, Mr Gundrum sought an internal review of Ms Farry's decision. The internal review was conducted by Ms Annette Scott. Mr Gundrum's internal review request (broadly) questioned the safety of the vaccines, complained that no risk assessment for his role had been provided, complained that he had not been consulted, and asserted that the directive was not lawful.

[12] In a decision dated 3 March 2022, Ms Scott confirmed the decision of Ms Farry to refuse Mr Gundrum's request for exemption. This is the decision that is now under review.

[13] It ought to be noted that Mr Gundrum filed his appeal in respect of Ms Scott's decision outside the statutory limitation period of 21 days.[1] Further, on initial consideration of his material, it was not immediately apparent what decision Mr Gundrum was appealing because, to complicate matters, subsequent to the expiry of the time limit for an appeal against Ms Scott's decision (by a matter of approximately a day), the Health Service immediately began a disciplinary process against Mr Gundrum. That process included subsequent decisions that were also attached to Mr Gundrum's appeal notice.

[14] It was only when the disciplinary process began that Mr Gundrum filed his appeal. His grounds of appeal purported to incorporate an appeal against Ms Scott's decision to refuse him an exemption. In order to clearly ascertain Mr Gundrum's appeal intentions the matter was listed for mention.

[15] At a mention of the appeal held on 22 April 2022, the various decisions affecting Mr Gundrum were discussed. It was established through discussions with Mr Gundrum that he sought to appeal all of the decisions, including the decision of Ms Scott. Given that the jurisdiction granted under the Industrial Relations Act 2016 (Qld) ('the IR Act') allows the Queensland Industrial Relations Commission ('the Commission') to review 'a decision' or 'the decision' there are significant jurisdictional barriers to considering multiple decisions in one appeal.[2]

[16] Following discussion with the parties the Health Service helpfully consented to take no issue with the late filing of an appeal in respect of Ms Scott's decision to refuse Mr Gundrum an exemption. It was further agreed by all parties that it would be Ms Scott's decision that would be the decision under review. The Health Service further agreed to place the progress of any disciplinary process on hold pending a decision in this appeal.

[17] Chapter 11 of the IR Act provides the Commission with jurisdiction to deal with appeals under the Public Service Act 2008 (Qld).

[18] An appeal is a review of a decision. It is not a rehearing of the matter on its merits in the form of a hearing de novo.[3] In this appeal I am required to review the decision of Ms Scott to determine whether that decision was fair and reasonable.[4]

[19] Chapter 11 of the IR Act limits the type of orders that can be made by the Commission in a public service appeal. Relevantly, the orders that can be made are:[5]

(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.

[20] The parties filed submissions in accordance with the directions order issued from my chambers on 22 April 2022.

[21] Mr Gundrum filed submissions on 6 May 2022. I have had full regard to those submissions though I do not intend to restate them in detail in these reasons for decision. The appeal was dealt with (in part) by way of hearing and Mr Gundrum had an opportunity to fully ventilate his submissions and other ancillary matters.

[22] Mr Gundrum's position shifts subtly from issue to issue when comparing his original application for exemption, his submissions supporting internal review by Ms Scott, and his submissions filed in this appeal. While matters take on new or different focus over the course of the issue, there are a number of recurring themes. When asked during the hearing, Mr Gundrum confirmed his primary objections to being vaccinated against Covid are that he considers (given his medical history) that he is at greater risk of harm, and further, that (more broadly) the vaccines are not safe. [6]

[23] Mr Gundrum's written submissions traverse a number of issues. Principally Mr Gundrum complains the adequacy of Ms Scott's reasons and the safety of vaccines where Mr Gundrum says there is 'mounting evidence' contradicting Queensland Health's position on the safety of vaccines. Mr Gundrum further restates his complaint about a lack of risk assessment. He complains that the mandate directing him to have the vaccine was not part of his original employment contract. He asserts that vaccines have done little to protect staff and patients from infection and says that there are 'alarming numbers' of adverse reactions. Finally, he asserts that his human rights have been limited by the directive.

[24] The Health Service's submissions rely largely on the overall legitimacy of the process accompanying the directive and the medical evidence supporting it.

[25] The Health Service restated the now well-travelled submission that vaccines are recognised by all major health authorities as the best measure to reduce risk of death and serious illness from Covid.

[26] More specifically, the Health Service pointed to the lack of evidence presented by Mr Gundrum to support his various claims regarding his personal risk factors and vaccine risk factors generally.

[27] I am in no doubt that Mr Gundrum holds his views regarding the safety of vaccines very genuinely and sincerely. Further, following submissions from Mr Gundrum in person at the hearing of this matter, I can fully appreciate why Mr Gundrum would have some hesitancy given his submission that he has previously had an adverse reaction to a whooping cough vaccine and other pharmaceuticals.

[28] Notwithstanding his genuine beliefs, what is glaringly absent from Mr Gundrum's arguments about vaccine safety is supporting evidence. Mr Gundrum has produced not a single item of evidence to support his assertions that he is at increased risk of harm if he has a Covid vaccine or that there is (as he says) 'mounting evidence' of adverse reactions and risk associated with Covid vaccines. Mr Gundrum put no evidence to support his concerns before Ms Farry or Ms Scott, nor did he seek to put any evidence before me at the hearing.

[29] Given these matters form the very foundations of his decision to decline to comply with the directive and given that decision may ultimately mean the termination of his employment, I would have expected he would have produced something to support his contentions. But he did not.

[30] During the hearing of this matter Mr Gundrum displayed a propensity for making assertions and arguments on matters of medicine and science yet he was unable or unwilling to produce any source materials for scrutiny by the Commission and the Health Service. It became apparent during the hearing that Mr Gundrum somehow misunderstood his fundamental responsibility as the appellant, that is, that he bears the onus of proving the facts he relied on.

[31] Furthermore, while I have no doubt that the types of source materials Mr Gundrum relies on can be found on the internet, experience confirms that it is invariably the case that such articles rarely stand up to objective scrutiny. Any credible medical science undermining the position adopted on Covid vaccines by governments around the world would undoubtedly be prominent news.

[32] By contrast to the unidentified sources of Mr Gundrum's opinions, there are credible well-informed sources of information about the safety of vaccines published by reputable independent expert sources that are readily available to anyone with access to the internet.[7]

[33] Mr Gundrum was unable to provide any evidence or cogent submission to support any sensible reason for the rejection of the recommendations of the preeminent medical experts on vaccine safety.[8]

[34] In his written submissions Mr Gundrum took issue with Ms Scott's disclosure that she had read all of his material but may not mention it in her decision. Mr Gundrum asserted that this somehow denied him fairness because he could not be satisfied that Ms Scott had properly or accurately dealt with every document.

[35] I do not accept that Ms Scott's statement that she would not mention every document or all information contained in Mr Gundrum's exemption application gave rise to any unfairness. Ms Scott's decision is very comprehensive. It deals extensively with the broad issues that make up Mr Gundrum's case for refusal. The fact that Ms Scott has not descended into the minutiae does not deprive Mr Gundrum of understanding her reasons. Further, her demonstrated consideration of all important matters was evident from her decision and was sufficient to sustain it.

[36] Having regard to her reasons, I consider that the decision would more than adequately comply with the description of adequate reasons as it appears in the Acts Interpretations Act 1954 (Qld).[9]

Risk assessment, consultation, and contract of employment

[37] The submissions regarding risk assessment, consultation, and his contract of employment are, with all due respect to Mr Gundrum, rather stale. They have been run repeatedly by other litigants in similar or the same circumstances to Mr Gundrum and they have failed repeatedly.[10]

[38] An obligation for a duty holder (like the Health Service) to undertake a risk assessment under the Work Health and Safety Act 2011 (Qld) does not, of itself, create a right by an employee to demand a documented copy of that risk assessment. In any event, Covid vaccine safety has been evaluated and confirmed as safe by the Australian Technical Advisory Group on Immunisation ('ATAGI') and as such there is no reasonable basis for Mr Gundrum to demand a risk assessment or complain he did not receive one. The approval of vaccines for use by a federal authority such as ATAGI ought to assuage any concerns.[11]

[39] To the extent that the approval of ATAGI did not settle his personal concerns, Mr Gundrum was at liberty to obtain his own medical advice. As best as I could ascertain (in the absence of evidence) Mr Gundrum appeared to concede that none of his medical advisors would exempt him.[12]

[40] Similarly, the arguments about lack of consultation also must fail. It was held by the Full Bench of the Commission that consultation may legitimately be conducted with registered unions through representatives rather than individuals in a large workforce.[13] That decision of the Full Bench involved the Queensland Police Service, which has approximately 17,000 employees. I note in this instance that Queensland Health has approximately 107,000 employees.

[41] I note the submission from the Health Service that they consulted extensively with unions, including unions active in Mr Gundrum's workplace. I am satisfied that reasonable steps to consult were taken. Mr Gundrum appears to have an expectation of personal consultation which, in this case, is misplaced.

[42] Mr Gundrum also argues that the directive is an improper or perhaps unenforceable alteration to his contract of employment. This submission is misconceived. The directive does not impose a new term into Mr Gundrum's contract of employment but rather, it relies on inter alia the implied contractual term requiring him to act in good faith. As an employee of the Health Service Mr Gundrum has, at all times, an obligation to comply with lawful and reasonable directions from his employer.

[43] The statutory source of the directive makes it lawful.[14] The purpose of the directive, that is, to optimise the health and safety of the Health Services' staff, patients, and visitors (by attempting to supress a potentially deadly virus) makes it reasonable.

[44] The directive is not an amendment to his contract, but rather a lawful and reasonable direction given to Mr Gundrum in the course of his employment with which he is obliged to comply or otherwise be subject to consequences.[15]

[45] Mr Gundrum introduced a submission about his human rights being limited during the internal review process. It was not something that was before Ms Farry. In any event, Mr Gundrum's submission that the vaccine mandate limits his human rights fails to address the legal reality that the Human Rights Act contemplates the limiting of human rights in appropriate circumstances where, for example, the limitation is necessary for some important reason.[16]

[46] I cannot imagine a more important reason to limit Mr Gundrum's human rights than for the protection of his colleagues, and the patients and visitors to the Health Service's facilities against the possibility of contracting a potentially deadly virus from an unvaccinated employee.

[47] Having regard to all of the matters raised by Mr Gundrum and to the decision of Ms Scott I consider that she has been fair in her consideration of Mr Gundrum's request. I can identify no critical oversight in her consideration and, in the circumstances where Mr Gundrum produced no evidence to support his arguments, or made arguments unsupported by fact or law, I consider that her conclusions were more than open to her on the material she had before her.

[48] I am genuinely sympathetic to Mr Gundrum's predicament. At the hearing of the matter, he professed a great fondness for his work and described himself as a dedicated and diligent employee, especially during the early stages of the pandemic. I have no doubt of the truth of this. It is undoubtedly confronting that despite his industrious and loyal work ethic over many years, Mr Gundrum now finds himself having to choose between his personal beliefs and his employment.

[49] Mr Gundrum is facing an unusual and unique dilemma. I am certain that he genuinely holds the view that the vaccines are unsafe. This is so, despite extensive and overwhelming medical evidence to the contrary. It was evident at the hearing that Mr Gundrum's cynicism and distrust of the medical and scientific establishment is well entrenched in his psyche. This is where my sympathies for him are evoked because his perceptions are no doubt influenced by misinformation that appeals to his genuine but unsupported concerns that he will suffer some harm if he has a Covid vaccine.

[50] Mr Gundrum, who informed me that he has a family and a mortgage, is prepared to potentially jeopardise the secure employment that he has held for almost seven years because he cannot reconcile his obligations under the directive with his views on vaccine safety. Unfortunately, my sympathy for Mr Gundrum cannot assist him with this appeal.

[51] Having considered the paucity of the evidence that Mr Gundrum produced to the decision-makers in support of his application for exemption and the merits of the numerous (already invalidated) other arguments he relied on, I can readily appreciate how the decision-maker reached her conclusion that the exemption ought to be refused.

[52] In all of those circumstances, it follows that I find the decision was fair and reasonable.

[53] In all of the circumstances, I make the following order:

1. The decision appealed against is confirmed.

[3] Industrial Relations Act 2016 (Qld) s562B; Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018), 5.

[9] _Acts Interpretations Act 1954 (Ql_d) s27B.

[10] See as but one example the decision of the Full Bench in Brasell-Dellow & Ors v State of Queensland, (Queensland Police Service) & Ors [2021] QIRC 356.

[11] ATAGI is the principal advisor to government on inter alia vaccine safety. See also Kathryn Roy-Chowdhury v The Ivanhoe Girls' Grammar School [2022] FWC 849 at [103].

[12] T 1-4, ll 9-45. While Mr Gundrum sought to portray his personal medical advice as somehow restricted by the narrow class of exemptions, it was readily apparent on questioning that his medical advisors did not support his exemption.

[13] Brasell-Dellow & Ors v State of Queensland, (Queensland Police Service) & Ors [2021] QIRC 356 at [124]- [128].

Health and Safety Act 2011

Interpretation Act 1954

Interpretations Act 1954

Health Boards Act 2011

Gundrum v State of Queensland

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Legislation Cited (7)