Radev v State of Queensland

Mr Radev's application did not provide evidence of any specific adverse medical conditions in relation to the issues he raised, that included contraindications to his being able to be safely administered the current vaccines. An independent medical specialist was present at the meeting.[11]

• [12] As a result of the Decision, Mr Radev was suspended from his employment with pay on 15 October 2021.[12]

• [13] On 5 November 2021, Mr Radev appealed the Decision on the basis it is unfair and unreasonable.[13]

• [14] On p 3 of the Appeal Notice, Mr Radev identified the type decision being appealed:

I am appealing a fair treatment decision and I have used my employer's individual employee grievances process before lodging this appeal.

• [15] Section 194 of the Public Service Act 2008 (Qld) (PS Act) identifies the categories of decisions against which an appeal may be made. Section 194(1)(eb) of the PS Act provides that an appeal may be made against "a decision a public service employee believes is unfair and unreasonable (a fair treatment decision)".

• [16] Mr Radev has been an employee of the Respondent at all times relevant to this appeal.

• [17] Clause 5.2(h) of Directive 07/20 Appeals provides that an appeal may only be lodged by:

for a decision under section 194(1)(eb) (fair treatment decision) - a public service employee who is aggrieved by the decision. The public service employee should comply with the agency's complaints management process prior to lodging the appeal.

As the decision making for vaccination exemption applications is made at Deputy Commissioner level there is no internal review/appeal process available to the employee and the employee will need to consider an external review process.[14]

• [19] On that basis, I am satisfied that the Respondent does not have nor expect an employee to undertake an individual employee grievances process in relation to this type of decision and on that basis, I will proceed to determine this appeal.

• [20] I am satisfied that the Decision can be appealed.

• [21] Section 564(3) of the IR Act requires that an appeal be lodged within 21 days after the day the decision appealed against is given. That is the relevant inquiry with respect to timeframes. I note that despite the question posed in the Form 89 - Appeal Notice regarding when the decision was received.

• [22] As the decision was given on 15 October 2021 and the Appeal Notice was filed on 5 November 2021, I am satisfied that the appeal was filed by Mr Radev within the required timeframe.

• [23] Section 562C of the IR Act prescribes that the Commission may determine to either:

1. Set the decision aside and return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate; or

1. Set the decision aside and substitute another decision.

• [24] In accordance with the Directions Order issued on 8 November 2021, the parties filed written submissions.

• [25] Pursuant to s 451(1) of the IR Act, no hearing was conducted in deciding this appeal. The matter was decided on the papers.

• [26] I have carefully considered all submissions and annexed materials. I have determined not to approach the writing of this decision by summarising the entirety of those submissions and attachments but will instead refer to the parties' key positions in my consideration of each question to be decided.

• [27] Section 562B(2)(3) of the IR Act provides that the appeal is decided by reviewing the decision appealed against "to decide whether the decision appealed against was fair and reasonable".

• [28] The appeal is not conducted by way of re-hearing, but rather involves a review of the decision arrived at by the Respondent and the associated decision-making process.

• [29] Findings made by Respondent, which are reasonably open to it, should not be disturbed on appeal. Even so, in reviewing the decision appealed against, the QIRC member may allow other evidence to be taken into account.

• [30] The issue for my determination is whether the Decision was fair and reasonable.

• [31] The relevant principles in considering whether a decision is 'unreasonable' were enunciated by Ryan J in Gilmour v Waddell & Ors (emphasis added, citations removed):[15]

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.

... when something is to be done within the discretion of an authority, it is to be done according to the rules of reason and justice. That is what is meant by 'according to law'. It is to be legal and regular, not vague and fanciful ...

... there is an area within which a decision maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be applied for that of a decision maker ...

... it is necessary to look to the scope and purpose of the statute conferring the discretionary power and its real object ... The legal standard of reasonableness must be the standard indicated by the true construction of the statute. It is necessary to construe the statute because the question to which the standard of reasonableness is addressed is whether the statutory power has been abused.

... Unreasonableness is a conclusion which may be applied to a decision which lacks an evidence and intelligible justification.

• [32] Broadly, Mr Radev submits the Decision is unfair and unreasonable because:

• there is a lack of clarity with respect to the Direction and QPS 'COVID-19 Vaccination Exemption Process' Guidelines (the Guidelines);[16]

• the Decision does not outline reasons;[17]

• it appears the exemption request has not been considered on its merits;[18]

• a lack of evidence of a specific adverse medical condition is unrelated to the exemption and not a valid reason for refusal;[19] and

• human rights have not been appropriately considered.[20]

Lack of clarity under the Direction and Guidelines

• [33] Mr Radev argues the Direction and Guidelines "do not provide a definition or guiding principles of what constitutes 'other exceptional circumstances'."[21] Mr Radev contends that a lack of clarity "allows decisions based on subjective interpretation, prevents transparency and precludes fairness."[22]

• [34] The decision-maker referred to [13] of the Guidelines which states:

Documentation provided in support of an 'other exemption' (due to exceptional circumstances) must include relevant evidence that supports the exceptional circumstances. If the exceptional circumstances are temporary in nature, please specify the duration.

• [35] Mr Radev submits the VEC did not explain or clarify why [13] of the Guidelines was referred to and argues the Guidelines do not clearly stipulate the evidence required for an exemption in 'other exceptional circumstances'.[23] In that respect, Mr Radev referred to the following paragraphs from the Guidelines:

9. All applications for exemption must include the required information/supporting documentation for consideration and assessment by the VEC. Employees are required to upload copies of supporting evidence that is to be relied upon.

11. Documentation provided in support of a medical exemption must include a medical report from a qualified medical practitioner or specialist outlining:

i. the condition and medical reason which makes it unsafe for the employee to receive any of the current approved COVID-19 vaccines; and

ii. whether the condition is temporary in nature, and if so, the duration.

12. Documentation provided in support of a religious exemption must include a statutory declaration from an authorised member of a recognised religious denomination detailing:

i. the teaching(s) of that religion which prevent vaccination; and

ii. confirmation that the employee is a current member/adherent of those religious teachings.

24. Where Assistant Commissioner/Executive Directors identify there is insufficient evidence to forward the application for referral to the VEC, the application should be returned to the employee seeking further supporting evidence.

There are any number of circumstances that an employee may put forward with the belief that they are exceptional. The purpose of the 'other exemption' category is to ensure that all employees who believe that they should be considered for exemption due to exceptional circumstances can make application and have their application considered on its merits.[24]

• [37] I agree with the Respondent. The term 'other exceptional circumstances' is broad because any number of circumstances may fall within its ambit. The key word is 'exceptional' which the Macquarie Online Dictionary defines as "forming an exception or unusual instance; unusual; extraordinary".[25] The Direction and Guidelines do not provide examples or indications of what constitutes 'exceptional circumstances' which is appropriate because it is not for the Respondent to list a number of unusual situations that an employee can choose from. The ambit of the term allows for anyone who believes their circumstances may be exceptional to outline those circumstances and put their best case forward.

• [38] There are also no examples of what evidence should be adduced in support of the exceptional circumstances other than that the evidence must be relevant to the exceptional circumstances. That is a reasonable provision considering the Respondent is unaware of what exceptional circumstances will be presented and therefore cannot forecast ahead to the evidence required. The requisite evidence will be dependent upon the specific circumstances.

• [39] For those reasons, I reject the argument that the decision was not fair and reasonable because the Direction and Guidelines do not provide an indication of what constitutes 'exceptional circumstances'.

• [40] Mr Radev contends that because the Decision does not include an outline of reasons, its reasonableness cannot be demonstrated and it "should not be considered complete and finalised."[26] Mr Radev refers to [29] of the Guidelines which states:

The outcome of the exemption application will be provided in writing to the employee outlining the reasons for the decision and/or any conditions associated with an approval (i.e. requirement to perform alternative duties, transfer etc.).

• [41] To the contrary however, the Decision does include the following reason:

The issues raised by Mr Radev were not considered by the Committee or the Delegate as exceptional to the degree that an exemption from being vaccinated in compliance with the Commissioner's Direction was warranted.[27]

• [42] The reason for the Decision may appear insufficient on the surface because it is provided for in one sentence. Mr Radev referred to s 13(1) of the Human Rights Act 2019 (Qld) which stipulates that "A human right may be subject under law only to reasonable limits that can be demonstrably justified..."[28] However, simply put, seeking an exemption because one is concerned of an adverse reaction and associated impacts is not an unusual or extraordinary circumstance. On that basis, I accept the Respondent's Decision did not warrant lengthy written reasons but was rather fairly and reasonably expressed in brief terms.

• [43] In the view of the VEC, the basis of Mr Radev's exemption request did not require verification via supporting evidence because his statements are not in question. I accept that to be the case. Clearly the VEC do not dispute that Mr Radev has concerns about reacting to the vaccination or that an adverse reaction may have impacts on his family circumstances. Rather, the Respondent acknowledges that being the sole income earner in one's family and holding concerns about adverse reactions are not uncommon across the QPS workforce.[29] The issue for Mr Radev is that those undisputed circumstances are not 'exceptional' - and that is the reason for refusal as conveyed in the Decision. In the absence of that key element, the VEC had no reason to request evidence proving those circumstances.

• [44] Mr Radev contends it appears his request was not considered on its own merits[30] and that his role and available health and safety risk management measures should have been considered as a whole.[31] The Respondent contends that Mr Radev's application was in fact assessed on its merits.[32]

• [45] Mr Radev referred to the Respondent's statement that being the sole income earner in one's family and holding concerns about adverse reactions are not uncommon across the QPS workforce.[33] Mr Radev argues this statement suggests his circumstances were not assessed on the merits and the full scope of his personal circumstances had not been considered.[34] I appreciate that the complexity of Mr Radev's family circumstances present many specific challenges. However, just because the Respondent did not reference each and every circumstance does not mean they were not considered in totality. The test is whether the circumstances are 'exceptional' - defined in the Macquarie Online Dictionary as "forming an exception or unusual instance; unusual; extraordinary".[35] It was reasonable for the Respondent to conclude that Mr Radev's circumstances, although challenging, are not entirely unusual and therefore are not exceptional circumstances that warrant an exemption. The basis of Mr Radev's request is that he is fearful of an adverse reaction which is arguably one of the most common reasons for why individuals are refusing to get the COVID-19 vaccination. There is nothing exceptional about that reason.

• [46] The Respondent confirms the basis of Mr Radev's exemption request was his concern over a potential adverse reaction to the vaccination.[36] The Respondent submits VEC discussed this concern and addressed it in their Decision by noting that Mr Radev had provided no "evidence of any specific adverse medical conditions in relation to the issues he raised, that included contraindications to his being able to be safely administered the current vaccines."[37] I accept that note was appropriate because the lack of medical evidence suggesting Mr Radev is susceptible to having a negative reaction to the vaccination indicates Mr Radev's exemption request is based purely on fear of a reaction and associated impacts.

• [47] Further, Mr Radev submits the Direction does not apply to him because his duties do not require direct contact with police officers, members of the community or mission critical staff members.[38]

While it is primarily police officers who are on the front line, many staff members:

1. have close working relationships with police officers;

1. interact with members of the community (including vulnerable members of the community) in roles such as Police Liaison Officers as well as in public-facing roles at police stations; and,

1. are mission critical, such as staff members stationed at Communications Centres, Policelink, fleet maintenance facilities and Queensland Government Air (QGAir).

• [49] Pursuant to [6]b), the Direction applies to:

1. all police officers appointed pursuant to section 2.2 of the Police Service Administration Act 1990; and,

1. all staff members appointed pursuant to section 8.3(5) of the Police Service Administration Act 1990 and/or sections 110, 119, 147 and 148 of the Public Service Act 2008 who are:

• [50] A "frontline support staff member" is defined at [15] of the Direction as:

a staff member who has a 'non-corporate services' role and who provides essential support, enabling the effective delivery of frontline services, including services performed at Communications Centres, Policelink, fleet maintenance facilities, and Queensland Government Air (QGAir).

• [51] Mr Radev contends that although his current position with QGAir falls under the definition of "frontline support member", his position can be considered a "corporate services role".[39] Mr Radev argues that if a risk assessment of COVID-19 at the workplace was conducted, the assessors could have identified his position as a corporate role rather than a frontline role and could have identified reasonably available measures to minimise the risk.[40] Mr Radev's "role is to lead a team of coordinators" who "interact with police officers, members of the community and mission critical staff, for example, pilots and aircraft engineers."[41] Mr Radev notes the coordinators are frontline support staff members whose "role is critical for each mission."[42]

• [52] Mr Radev argues he has successfully performed duties away from the office and any mission critical staff members for approximately one year. Mr Radev submits that while performing duties from Brisbane, he has successfully provided duties from bases at Horn Island, Mt Isa and Cairns without having direct contact with police officers, members of the community and mission critical staff members based at these locations.[43] Mr Radev also proposes an extensive list of measures to minimise the risk of him contracting or transmitting COVID-19 at the workplace which he submits could comprise conditions of an exemption.[44] For example, Mr Radev offered to bear the cost of undertaking tests prior to commencing duties each day in addition to other measures such as wearing a mask and maintaining 1.5m physical distancing.[45]

• [53] The Respondent argues the Direction "has clear application to staff members performing duties with QGAir"[46] and Mr Radev's "role is considered a non-corporate services role and provides essential support to enable the effective delivery of QGAir, an essential frontline service."[47] I note from Mr Radev's submission that he concedes his current position falls under the definition of a '"frontline support member", although he argues it could be considered a "corporate services role." Upon review of the relevant provisions, I accept the Respondent's submission that Mr Radev is a staff member who provides essential support to enable the effective delivery of frontline services at QGAir. On that basis, I find that Mr Radev is subject to the requirements of the Direction.

• [54] Although Mr Radev's evidence tends to indicate that at times he has been able to successfully perform his duties away from the workplace and other staff members, that is respectfully beside the point. Mr Radev himself noted his role is to lead coordinators who are required to interact with police officers, members of the community and mission critical staff.[48] There will inevitably be times where Mr Radev is required to attend the office and intermingle with other staff members, including those he leads, in order to fulfill his duties. Further, I note the location of Mr Radev's physical workplace is the Brisbane Airport. Airports are renowned for being particularly risky locations with respect to transmission of COVID-19. It is clear that Mr Radev undertakes an important role in an important area that has been covered by the Direction for the safety of Mr Radev, his colleagues and the broader community.

• [55] It is commendable that Mr Radev proposed a list of additional measures he is willing to undertake. However, the measures proposed should supplement the requirements under the Direction, not replace those requirements. It is simply not operationally feasible for the Respondent to trust each individual employee to implement and undertake precautionary measures at their own election and on their own accord instead of following the Direction.

• [56] For the reasons outlined above, it was fair and reasonable for the VEC to find that the Direction covers Mr Radev's employment and I find that Mr Radev's exemption request has been given fair and reasonable consideration on its merits.

Mr Radev's application did not provide evidence of any specific adverse medical conditions in relation to the issues he raised, that included contraindications to his being able to be safely administered the current vaccines. An independent medical specialist was present at the meeting.[49]

• [58] Mr Radev contends this argument is unrelated to his exemption request as he "did not submit a request for exemption under the medical exemption option" and has not claimed to have an adverse medical condition in his request.[50] For those reasons, Mr Radev argues his request cannot be rejected because he has failed to provide evidence of a medical condition.[51] In that respect, Mr Radev argues the VEC has breached principles of natural justice by refusing his exemption because of a lack of evidence without requesting such evidence and affording Mr Radev the opportunity to respond.[52]

• [59] As I concluded above, the Respondent's reference to a lack of medical evidence was relevant insofar as it suggested Mr Radev is not susceptible to having a negative reaction to the vaccination but rather Mr Radev's exemption request is based purely on fear of a reaction and associated impacts. In the view of the VEC, the basis of Mr Radev's exemption request did not require verification via supporting evidence because his statements are not in question. The issue for Mr Radev is that his undisputed circumstances are not 'exceptional' - and that is the reason for refusal as conveyed in the Decision. In the absence of that key element, the VEC had no reason to request evidence proving those circumstances.

• [60] In his reply submissions, Mr Radev argues the VEC stated Mr Radev is "able to be safely administered the current vaccines".[53] Mr Radev argues such a conclusion cannot be made without him being medically examined and should not have been taken into consideration. However, Mr Radev has taken that statement out of context. The VEC stated that:

Mr Radev's application did not provide evidence of any specific adverse medical conditions in relation to the issues he raised, that included contraindications to his being able to be safely administered the current vaccines.[54]

• [61] The VEC did not conclude Mr Radev is able to be safely administered the vaccination, rather they concluded that no evidence had been provided to indicate he is unable to be safely administered the vaccine. As concluded above, this fact tended to support that Mr Radev's application had been made purely on the basis of fear for an adverse reaction. For the reasons outlined, I reject the argument that the Decision was unfair and unreasonable because of reference to a lack of medical evidence.

• [62] Mr Radev refers to the following paragraphs of the Direction:

[4] The Work Health and Safety Act 2011 place a responsibility on me as the Commissioner of Police, so far as is reasonably practicable, to ensure the health and safety of police officers and staff members. That Act also requires me to ensure, so far as is reasonably practicable, the health and safety of other people with whom police officers and staff members interact when performing the functions of the Queensland Police Service.

[5] While individual police officers and staff members have important human rights, those rights must be weighed against the interests of the community, including the human rights of others and the need to ensure that the Queensland Police Service is able to service the community during a public health emergency.

• [63] Mr Radev contends he is "of no risk to the functions and responsibilities of the Queensland Police Service to serve the community."[55] On that basis, Mr Radev argues that upon weighing his human rights and that of his family against the human rights of others at the workplace, it would be reasonable and justifiable that his human rights not be limited before the risk management measures are taken into account.[56] Mr Radev made a series of other arguments regarding human rights such as "my human rights need to be considered at an individual level, and not at a group level."[57]

• the risk management measures should be given more weight because "the public health emergency is a temporary event and the vaccination is a permanent and irreversible medical treatment;"[58] and

• the ability of the QPS "to serve the community would not be threatened and the balance between achieving the purpose of Direction 12 and the importance of preserving the human rights of all parties would be maintained."

• [65] The Respondent contends that "A clear decision was made to include QGAir employees in the definition of frontline support staff members based on the essential service provided".[59] I have already concluded that the Respondent reasonably considered Mr Radev's circumstances and reasonably concluded his circumstances are not exceptional. Risk management measures have been incorporated in workplaces since the commencement of COVID-19. The vaccination has been recognised as a necessary measure that should be mandated for employees such as Mr Radev. I note that Mr Radev himself acknowledged "I respect and support the Direction, and recognise its importance in managing the current pandemic challenges and dynamics."[60]

• [66] The importance of the COVID-19 vaccination mandate was articulated in [2] of the Direction as follows (emphasis added):

In order to fulfil the functions of the Queensland Police Service under section 2.3 of the Police Service Administration Act 1990, police officers must be frontline-ready and available for deployment. The Queensland Police Service has particular responsibilities during the declared public health emergency, including deployment of police officers and staff members to quarantine facilities as well as to COVID-19 border compliance duties. More broadly, the nature and frequency of police officers' interactions with members of the community, particularly vulnerable members of the community, results in a significantly increased risk of police officers contracting or transmitting COVID-19. Rapid transmission of COVID-19 through the Queensland Police Service would take police officers and staff members out of service while they undertake quarantine periods or recover from COVID-19. In an extreme scenario, this could reduce the availability of police officers and staff members for deployment, and threaten the ability of the Queensland Police Service to serve the community.

• [67] I accept the Direction is in place to protect the QPS workforce and the greater community. The services of QPS are far reaching and vital. It was not unreasonable for the Respondent to refuse Mr Radev's exemption request after taking into account his proposed risk management measures and in weighing up the human rights of Mr Radev, his family, colleagues and broader community.

• [68] For the reasons outlined above, I conclude that the Decision to refuse Mr Radev's exemption request was fair and reasonable.

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

[3] Queensland Police Service, Queensland Police Service Instrument of Commissioner's Direction No. 12, 7 September 2021.

[5] Letter from Mr N. Radev to 'Assistant Commissioner', 27 September 2021.

[6] Email from Mr B. Jenkins to Mr N. Radev, 4 October 2021.

[7] Email from Mr N. Radev to Mr B. Jenkins, 6 October 2021.

[8] Email from Mr N. Radev to Mr C. McVay, 11 October 2021.

[9] Email from Ms S. Stream (Executive Director, Queensland Government Air) to Mr N. Radev, 18 October 2021.

[10] Email from Mr C. McVay to Mr D. French, 15 October 2021.

[11] Email from Mr C. McVay to Mr D. French, 15 October 2021.

[12] Appeal Notice, 5 November 2021, 4; Appellant's Submissions, 15 November 2021, 5.

[13] Appeal Notice, 5 November 2021, 4.

[14] Email from Mr C. McVay to Mr D. French, 15 October 2021.

[15] [2019] QSC 170, [207]-[210], citing Minister for Immigration and Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332, [63]-[76].

[16] Appeal Notice, 5 November 2021, 4.

[20] Appellant's Submissions, 15 November 2021, 4.

[21] Appeal Notice, 5 November 2021, 4.

[23] Appellant's Submissions, 15 November 2021, 2 [1].

[24] Respondent's Submissions, 23 November 2021, [16].

[25] Macquarie Dictionary (accessed online on 26 November 2021) "exceptional".

[26] Appeal Notice, 5 November 2021, 4.

[27] Email from Mr C. McVay to Mr D. French, 15 October 2021.

[28] Appellant's Reply Submissions, 1 December 2021, 1 [3].

[29] Respondent's Submissions, 23 November 2021, [13].

[30] Appeal Notice, 5 November 2021, 4.

[31] Appellant's Submissions, 15 November 2021, 3 [5].

[32] Respondent's Submissions, 23 November 2021, [15].

[34] Appellant's Reply Submissions, 1 December 2021, 1 [2].

[35] Macquarie Dictionary (accessed online on 26 November 2021) "exceptional".

[36] Respondent's Submissions, 23 November 2021.

[38] Appellant's Submissions, 15 November 2021, 3 [5](b).

[41] Appellant's Reply Submissions, 1 December 2021, 2 [6].

[43] Appellant's Submissions, 15 November 2021, 3 [5](b).

[46] Respondent's Submissions, 23 November 2021, [24].

[48] Appellant's Reply Submissions, 1 December 2021, 2 [6].

[49] Email from Mr C. McVay to Mr D. French, 15 October 2021.

[50] Appellant's Submissions, 15 November 2021, 2 [1].

[51] Appeal Notice, 5 November 2021, 4.

[52] Appellant's Submissions, 15 November 2021, 2 [1].

[53] Appellant's Reply Submissions, 1 December 2021, 1 [1].

[54] Email from Mr C. McVay to Mr D. French, 15 October 2021.

[55] Appellant's Submissions, 15 November 2021, 5.

[57] Appellant's Reply Submissions, 1 December 2021, 3 [12].

[58] Appellant's Submissions, 15 November 2021, 5.

[59] Respondent's Submissions, 23 November 2021, [28].

[60] Appeal Notice, 5 November 2021, 4.