White v State of Queensland

Industrial Relations Act 2016 (Qld), ss 562B, 562C, 580

Public Service Act 2008 (Qld), s 194

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)

J v L & A Services Pty Ltd (No 2) [1995] 2 Qd R 10

John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465

R v O'Dempsey (No 3) 2 [2017] QSC 338

[1] Ms Leigh-Ann White ('the Appellant') is employed by the State of Queensland (Queensland Health) ('the Respondent') within West Morton Health ('WMH') as a Registered Nurse, central Sterilising Department at the Ipswich Hospital.

[2] 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 Health Employment Directive 12/21 regarding employee COVID-19 vaccination requirements ('the Directive').

[3] 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 employed and prospective employees to be employed under the HHB Act.

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.

• The requirements of this clause 8 do not apply to existing employees who have been granted an exemption under clause 10 of this HED.

[5] 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.

[6] The Appellant initially applied for an exemption from obtaining any COVID-19 vaccination based on other exceptional circumstances on 19 September 2021. The exemption request was, however, denied on 28 October 2021 and subsequently confirmed on 9 December 2021 upon an internal review request.

[7] By letter dated 13 December 2021, the Appellant was invited to show cause with respect to an allegation regarding her failure to follow a lawful and reasonable direction to comply with the vaccination requirements of the Directive.

[8] On 15 December 2021, the Appellant applied for a further exemption to the mandatory vaccine requirements of the Directive based on other exceptional circumstances on the basis that she has participated in a vaccine trial. The Appellant provided, inter alia, a letter from Mr Paul Griffin, Director of Infectious Diseases, Principal Investigator Mater Research, confirming that the Appellant had received two doses of the clinical trial vaccine.

[9] By letter dated 28 January 2022, Ms Claire Barratt, General Counsel and Corporate Secretary WMH, conditionally approved the Appellant's exemption based upon other exceptional circumstances. The conditions under which the exemption was granted were outlined as follows:

(a) That you will not enter a West Moreton facility or building for work purposes until you are fully vaccinated i.e you have received both doses of an approved vaccine.

(b) If the trial vaccine is not approved by the end of the trial on 13 October 2022, you will arrange to receive both doses of an approved COVID-19 vaccine.

(c) The conditional approval of your exemption confirms that for the purposes of your continuing employment with the Health Service, you are excused from receiving an approved vaccine as required by the Directive until the conclusion of the trial period and for the period of time following that which will be required for you to become compliant with the Directive i.e you have received both doses of an approved vaccine.

(d) You must provide evidence of your full vaccination with an approved vaccine prior to or at the time of returning to the workplace after 13 October 2022.

(e) You will liaise with your line manager for duties to undertake in an alternative work location until the expiration of this approval. If you are dissatisfied with the duties available to you then you may apply to take your own leave.

(f) This exemption will expire on 13 November 2022, that being considered sufficient time for you to receive an approved vaccine should the trial vaccine not be approved by 13 October 2022.

[10] On 7 July 2022, Sibley Lawyers, on behalf of the Appellant, lodged a stage 1 grievance, in accordance with cl 7.2 of the Nurses and Midwives (Queensland Health) Award - State 2015 and the Grievance Policy E12, seeking that the decision to impose conditions on the Appellant's exemption be reviewed, namely, that the Appellant was not permitted to enter West Moreton facility for work purposes.

[11] By letter dated 26 July 2022, Ms Barratt advised the Appellant that the WHM COVID-19 Mandatory Vaccination Exemption Panel ('the Panel') was reconvened to consider the grievance and advice was sought from the Department of Health. Ms Barratt determined that, after considering the Panel's views, it was not possible to determine that the Appellant was at no greater risk of contracting or transmitting COVID-19 to others in the workplace without an approved COVID-19 vaccine. Ms Barratt further determined that, to protect the Appellant's health and well-being as well as that of others, the Appellant should remain working from home.

[12] On 11 August 2022, Sibley Lawyers, on behalf of the Appellant, requested a stage 2 internal review of the decision of Ms Barratt dated 26 July 2022.

[13] By letter dated 2 September 2022, Ms Hannah Bloch, Interim Chief Executive, WMH, advised the Appellant that, until such times as the trial vaccine is approved by the TGA, the Appellant is considered not to be compliant with the Directive and as such, cannot be allowed to enter the workplace ('the decision').

[14] On 20 September 2022, the Appellant filed an appeal notice, appealing against the decision of Ms Bloch dated 2 September 2022, pursuant to s 194(1)(eb) of the Public Service Act 2008 (Qld).

[15] The appeal must be decided by reviewing the decision appealed against.[1] As 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.

[16] 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 Ms Bloch dated 2 September 2022 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?

[17] In deciding this appeal, s 562C of the IR Act provides that the Industrial Commissioner may:

(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.

[18] The Appellant provided an extensive outline of chronology as part of the appeal notice and contends that:

(a) the Appellant's risk profile does not justify continued segregation in the workplace and is contrary to the advice of the Health Minister, constituting discrimination in a broad sense and has resulted in detriment;

(b) a condition has been placed on the Appellant's return to the workplace which she has been unable to meet due to the Respondent's failure to provide a risk assessment; and

(c) the reliance on the Directive as a basis to prevent the Appellant's return to the workplace is misconceived.

[19] The Appellant further contends that the exclusion of the Appellant from the workplace is unfounded and unreasonable, outlining the following:

a) She is a participant in a COVID-19 vaccine clinical trial and has received an exemption from the HED on this basis; and

b) She has received a SARS-CoV-2 vaccine as part of the clinical trial; and

c) She has persistent and protective antibodies to COVID-19 from vaccination thereby placing her at no greater risk than any other fully vaccinated employee in a healthcare facility, as evidenced by her serology results and corroborated by medical evidence; and

d) The Health Minister clearly advises that those in Ms White's position are allowed to enter and remain in healthcare settings.

[20] The Respondent submits that the decision was fair and reasonable, submitting, in summary, that:

(a) the trial vaccine 'Sanofi' is not currently approved by the TGA for use in Australia, in accordance with the Directive;

(b) the Appellant was made aware her participation in a clinical trial did not satisfy the criteria for a medical contraindication for the purposes of applying for an exemption from the requirements of the Directive;

(c) while the Workers in a Healthcare Setting (COVID-19 Vaccination Requirements) Direction (No. 4) ('CHO Direction') contained a recognised exception for workers in health care who were participants in a COVID-19 vaccine trial, it also required WMH to assess the risk to other staff, patients, clients and other persons in the healthcare setting and determine whether the worker in healthcare may continue to work in the healthcare setting;

(d) although the Appellant stated she held antibodies to COVID-19 which meant her risk of COVID-19 infection and transmission could not be characterised as higher than any other person, there was no medical evidence to support this;

(e) the QML reports relied on by the Appellant in support of her exemption application do not constitute medical evidence of the Appellant's risk profile in relation to COVID-19 infection and transmission;

(f) even if the Appellant possessed COVID-19 antibodies, this does not mean she is immune to COVID-19 infection, or her risk of transmitting COVID-19 would not be higher than any other vaccinated personnel within the hospital;

(g) the Appellant's role as a Registered Nurse requires her to have regular physical contact with areas of the hospital where patients and staff are exposed to COVID‑19, as well as providing clinical care to patients;

(h) the Appellant's usual workplace, the Central Sterilising Department, is adjacent to the Emergency Department, and both departments share a corridor where emergency patients are awaiting clinical care. Accordingly, the nature and location of the Appellant's workplace gives rise to risk of being exposed to COVID-19; and

(i) WHM was not obliged to accept the Appellant's view as to the level of risk of her status as a person who had not received an approved COVID-19 vaccine.

[21] The Respondent further submits the following with respect to the nature of the appeal:

Ms Barratt's letter informed Ms White if she was dissatisfied with her decision in relation to her exemption application, she could request a review within 14 days. Ms White did not avail herself of this opportunity.

Having regard to the Appeal, it appears Ms White is appealing the decision to impose conditions upon the approval of her exemption from the requirements of the HED 12/21, including the condition to not allow her to attend a WMH facility without being fully vaccinated with a TGA approved vaccine. If this is the case, Ms White's Appeal is therefore approximately six months outside the statutory time period, as that decision was made by Ms Barratt on 26 January 2022.

[22] The Appellant submits that the decision is unfair and unreasonable, submitting, in summary, that:

(a) the Appellant acquired antibodies to COVID-19 after receiving two doses of the trial COVID-19 vaccine, which are confirmed to be persistent from vaccination, consistent with antibodies from other spike antigen vaccines and not attributable to infection from COVID-19;

(b) the Australian Government provided the Appellant with a COVID-19 Digital Certificate indicating a medical contraindication on the basis that she was a participant in a clinical trial and therefore, meets the requirement for a medical contraindication for an exemption under the Directive;

(c) it would be improper of the Respondent to negate the position of the Australian Government that the Appellant possesses a medical contraindication by way of her participation in a clinical trial;

(d) even if the Appellant did not meet the criteria for a medical contraindication, the Appellant's clinical trial participation logically amounts to an exceptional circumstance for an exemption under the Directive;

(e) preventing the Appellant from entering the workplace misconceives the exemption process outlined in the Directive;

(f) there is no additional scope stipulated in the Directive to impose upon the Appellant the extraneous condition that she does not enter her workplace, as confirmed by Ms Bloch;

(g) there is nothing in the CHO Direction that prevents the Appellant from entering the workplace;

(h) the Respondent's assertion that the Appellant posed a 'very high' risk in the workplace, contrary to the medical evidence cannot be justified given the absence of an individual risk assessment specific to her circumstances;

(i) no specialist advice was ever sought by the Respondent and the Appellant's medical evidence has been overlooked;

(j) contrary to the Respondent's submissions, there is medical evidence to support the Appellant's risk of COVID-19 infection and transmission being no higher than any other vaccinated person, including the Appellant's serology results;

(k) the objective medical evidence is that the Appellant's risk profile is not 'very high', rather, she poses no greater risk than any other worker vaccinated with an approved vaccine, and it would be improper of WMH to ignore these unequivocal facts;

(l) the Respondent's attempt to rely on a speculative assertion that the Appellant may still contract or transmit COVID-19 as a basis for her exclusion from the workplace when her risk profile is objectively no different to any other vaccinated worker is blatantly flawed;

(m) the Respondent has misconceived the nature and purpose of the exemption that exists for clinical trial participants;

(n) the discretionary power of the responsible person under the CHO Direction does not exist to preclude all healthcare workers who are clinical trial participants from entering their workplace; and

(o) the decision suggests that WMH is of the belief that there are no circumstances in which a healthcare worker who is participating in a clinical trial may be exempt from the restrictions of the CHO Direction and be permitted to enter the workplace and is unjustifiable when considering that both the CHO and the Health Minister saw it appropriate and necessary to exempt clinical trial participants from the vaccination requirements.

[23] The Appellant submits the following in response to the Respondent's submissions regarding the appeal being out of time.

... any objection in respect of the matter being out of time should have been made when the grievance was acknowledged and accepted on 19 July 2022. However, no objection was raised whatsoever, with WMH instead providing a response and the matter proceeding through the grievance process accordingly. It is improper for WMH to now allege the matter to be out of time when the Appellant has progressed appropriately through the grievance procedure, having filed within the 21-day timeframe. In any case, it has previously been accepted by the Commission that an appeal may proceed out of time if the delay is due to an employee following internal grievance procedures in the first instance.

[24] Consideration of an appeal of this kind requires a review of the decision by Ms Bloch to determine if the conditions imposed on the Appellant's exemption was fair and reasonable in the circumstances.

[25] I will firstly consider the jurisdictional matter raised by the Respondent. The Respondent submits that the substance of the Appellant's appeal relates to the decision to grant the exemption from compliance with the Directive subject to conditions including that the Appellant not attend the workplace. This decision was made on 28 January 2022 and the Appellant was advised that a review of the decision could be sought within 14 days if she was dissatisfied with the decision.

[26] The Appellant did not seek a review of decision of 28 January 2022, however instructed Sibley Lawyers to file a stage 1 grievance on 7 July 2022. The grievance was acknowledged by the Respondent and a response was provided accordingly. The grievance process was then followed, and an appeal was filed in this Commission following the final internal decision. In circumstances where the Respondent has engaged meaningfully in a grievance process, it would be unfair to rely upon the time limitation period associated with an earlier decision. I consider the decision the subject of this appeal to be the decision of Ms Bloch of 2 September 2022, which is appealable as a fair treatment appeal pursuant to s 194(eb) of the PS Act. This appeal was filed within the 21 day of Ms Bloch's decision and accordingly is within the statutory timeframe to appeal.

[27] Ms Bloch's decision confirmed that the Appellant is considered to fall within Category 2 of employees being 'a health service employee who is employed to work in a hospital or other facility where clinical care of support is provided'. The Appellant does not take issue with this assessment of her role. Ms Bloch's decision then refers to the requirement that no employee may work in a facility where care is provided without being fully vaccinated in accordance with the Directive. Ms Bloch notes that the definition of a COVID-19 vaccine is 'a vaccine approved by the Therapeutic Goods Administration for use in Australia or endorsed by WHO-COVAX where the employee was vaccinated overseas'.

[28] In considering the Appellant's participation in a vaccine trial, Ms Bloch stated the following:

The Directive is silent on the issue of employees participating in a vaccine trial, however I have concluded that based on information included in the Directive, Ms White would not be considered to be compliant with the Directive and therefore would not fall within the definition of employees allowed in the workplace post 1 November 2021. Ms White's individual circumstances were taken into consideration by the West Moreton COVID-19 Exemption Panel and while a temporary exemption was granted to Ms White, the Exemption Panel did restrict her presence in the workplace after evaluating the risks associated with her attendance.

[29] To ensure the Appellant's particular circumstances were considered, the West Moreton COVID-19 Exemption Panel considered the temporary exemption granted to the Appellant and determined that the risks associated with the Appellant's presence in the workplace were sufficiently high to justify the conditional exemption. It was therefore open to Ms Bloch to determine that the Directive did not permit the Appellant to attend the workplace after 1 November 2021.

[30] The Appellant referred to the Minister for Health's response to a Question on Notice that people who 'meet the requirements of the exception will be treated as if they are fully vaccinated and permitted to enter and remain in business venues, vulnerable facilities and high-risk settings equivalent to fully vaccinated people.' Ms Bloch noted in her decision that the Minister did not include the Directive in the list of public health directions altered to accommodate those persons taking part in a COVD-19 vaccine trial. In circumstances where the Directive was not considered as part of the Minister's statement, it was open to Ms Bloch to determine that the Appellant was not permitted into the workplace whilst not compliant with the Directive.

[31] The Appellant refers to her serology results as evidence that her risk to others in the workplace was no greater than any other worker vaccinated with a spike antigen approved for use in Australia. Ms Bloch considered this submission and noted that the results do not provide the authority required to vary the requirements of the Directive. Noting the Appellant's receipt of a trial vaccine, Ms Bloch reasonably concluded that until such time as the trial vaccine had been approved, the Appellant could not be considered compliant with the Directive and therefore could not be permitted into the workplace. I also note the Respondent's submission that the nature and location of the Appellant's workplace gives rise to risk of being exposed to COVID-19. The Appellant's role as a Registered Nurse requires her to have physical contact with areas of the hospital where patients and staff are exposed to COVID-19, as well as providing clinical care to patients. Along from the requirements of the Directive, these circumstances make the decision to continue the conditional exemption reasonable in the circumstances.

[32] In circumstances where the Appellant's exemption conditions had been considered by the WMH COVID-19 Mandatory Vaccination Exemption panel, the decision of Ms Bloch to maintain the condition upon the Appellant's exemption that the Appellant was unable to attend the workplace without receiving a TGA approved vaccine was fair and reasonable.

[33] The Appellant submits that the medical evidence confirms the S-protein antibodies present in the Appellant's serology results correlate with protection against COVID-19 and the protection afforded by these antibodies corresponds with a spike antigen vaccine. This does not equate to receipt of a TGA approved vaccine as required by the Directive.

[34] I note that the Appellant was advised at the outset that her participation in a clinical trial did not satisfy the criteria for a medical contraindication for the purposes of applying for an exemption from the requirements of the Directive. The decision to allow the Appellant to continue working from home in order to protect the health and wellbeing of herself along with the patients and the public was fair in circumstances where the Respondent was experiencing an increase in the infection rate of patients and staff.

[35] The relevant principles in considering whether a decision is 'unreasonable' were outlined by Ryan J in Gilmour v Waddell & Ors:[5]

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.[6]

[36] 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 decision was fair and reasonable.

[37] The Appellant submits that the following material be suppressed as it contains sensitive information pertaining to the Appellant:

1. Information in the original exemption application; and
2. Appellant's date of birth from all documents including serology results and the COVID-19 Government Exemption Certificate.

[38] The Appellant relies on s 580 of the IR Act and r 97 of the Industrial Relations (Tribunals) Rules 2011 (Qld).

[39] By correspondence to the Industrial Registry, the Respondent informed the Commission that it does not oppose the Appellant's request for a suppression order.

[40] The principles governing the exercise of discretion to issue suppression orders were considered in the J v L & A Services Pty Ltd (No 2).[7] The Court of Appeal determined that whilst there are limited circumstances in which suppression may be appropriate:

information may not be withheld from the public merely to save a party or witness from loss of privacy, embarrassment, distress, financial harm, or other 'collateral disadvantage', to use the expression adopted in R. v. Tait.[8]

[41] Regard must be had to the principle of open justice. As considered in R v O'Dempsey (No 3),__[9] the principle of open justice is one of the most fundamental aspects of the justice system in Australia. Exceptions to the principle are few and are strictly defined.[10]

[42] The Appellant's submission does not raise any basis which would satisfy an exception to the principles of open justice. In these circumstances, the request for suppression is denied.

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

[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 Public Service Act 2008 (Qld).

[4] IR Act s 562B(3).

[5] [2019] QSC 170.

[7] [1995] 2 Qd R 10.

[9] 2 [2017] QSC 338, [2]-[3].

[10] John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465.