QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION

PARTIES:	
	McCloskey v State of Queensland (Queensland Health) [2023] QIRC 360

McCloskey, Nicole
(Appellant)

v

State of Queensland (Queensland Health) 
(Respondent)
	
CASE NO:
	PSA/2022/306
	
PROCEEDING:
	Public Sector Appeal – Appeal against a fair treatment decision
	
DELIVERED ON:
	18 December 2023	
DATES OF 
WRITTEN SUBMISSIONS: 
	Appellant’s submissions filed 13 November 2023

Respondent’s submissions filed 14 November 2023
	
HEARD AT:	On the papers
	
MEMBER:
	Pidgeon IC
	
ORDERS:	1.	The decision appealed against is confirmed. 	
CATCHWORDS:

	PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY –PUBLIC SECTOR APPEAL – where the appellant is employed by the respondent as a Registered Nurse – where the appellant applied for an exemption from Health Employment Directive No. 12/21 on the basis of a genuinely held religious belief – where the respondent refused the application – where the appellant sought an internal review of the decision to refuse her exemption application – where the internal review confirmed the decision to refuse the appellant’s exemption application – where the internal review decision was fair and reasonable – decision appealed against confirmed
	
LEGISLATION AND
OTHER INSTRUMENTS:
	Children’s Health Queensland Human Resources Delegations Manual ss 2, 27

Directive 11/20 Individual employee grievances 

Health Employment Directive No. 12/21 cls 7, 8

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

Public Sector Act 2022 (Qld) ss 129, 131, 133, 289, 324, 

Public Service Act 2008 (Qld) (repealed)

Work Health and Safety Act 2011 (Qld) 
	
CASES:	Bax v State of Queensland (Queensland Health) [2022] QIRC 304

Donnelly v State of Queensland (Queensland Health) [2022] QIRC 149

Mocnik & Ors v State of Queensland (Queensland Health) [2023] QIRC 058

Slykerman v State of Queensland (Queensland Health) [2022] QIRC 039	

Reasons for Decision

Introduction 

[1]	Ms Nicole McCloskey (‘the Appellant’) is employed by the State of Queensland (Queensland Health) (‘the Respondent’) as a Registered Nurse in the Division of Critical Care at the Queensland Children’s Hospital within the Children’s Health Queensland Hospital and Health Service (‘CHQHHS’).

[2]	Ms McCloskey has filed a fair treatment appeal of an internal review decision dated 11 February 2022 by Ms Naomi Hebson, Executive Director People and Governance, CHQHHS, confirming the Respondent’s earlier decision not to approve Ms McCloskey’s application for an exemption from the requirement to receive a COVID-19 vaccination.

[3]	As Ms McCloskey’s usual place of work is the Queensland Children’s Hospital, she was subject to the mandatory vaccination requirements of Health Employment Directive No. 12/21 (‘HED 12/21’) which was issued on 11 September 2021. Clause 8.1 of  HED 12/21 required employees in the categories listed in clause 7.1 to have received two doses of a COVID-19 vaccination by 31 October 2021 and provide evidence of vaccination within seven days of receiving the vaccine.

Ms McCloskey’s exemption application

[4]	Ms McCloskey applied for an exemption from compliance with HED 12/21 on 27 September 2021 on the grounds of a ‘genuinely held religious belief’. 

[5]	In support of her exemption application, Ms McCloskey provided the Respondent with a letter dated 23 September 2021 from Father Damien Fox, Parish Priest, Our Lady of Lourdes Church. In this correspondence, Father Fox explained that Ms McCloskey is a baptised Catholic and long-standing parishioner at their parish. He said COVID-19 vaccination would be contrary to Ms McCloskey’s religious beliefs on the basis that the Catholic Church taught that vaccination was not a universal obligation and that a person must obey their own conscience when deciding whether to receive one. Father Fox confirmed that the Catholic Church did not oppose COVID-19 vaccination and left it to individual Catholics to determine whether they wished to be vaccinated. 

[6]	Ms McCloskey’s exemption application was refused by Mr Dominic Tait, Executive Director, Clinical Services, CHQHHS, in correspondence dated 8 December 2021.

[7]	Subsequently, IR Claims wrote to the Respondent on 11 November 2021 in correspondence to Mr Frank Tracey, Health Service Executive of the CHQHHS, on behalf of a number of CHQHHS employees alleging that HED 12/21 was unlawful and a breach of human rights. IR Claims requested internal reviews to be undertaken. Ms McCloskey was not initially named as one of the relevant employees in the schedule attached to IR Claims’ letter, but she was included in a further amended schedule.

[8]	Ms Theresa Hodges, Chief Human Resources Officer, wrote to IR Claims on 13 December 2021 to address the claims raised in its letter. 

[9]	An internal review was subsequently undertaken with regard to Ms McCloskey’s exemption application.

The internal review decision

[10]	On 11 February 2022, Ms Naomi Hebson, Executive Director People and Governance, CHQHHS, wrote to Ms McCloskey informing her that the internal review had been completed and the decision to deny her application for an exemption on the basis of her religious beliefs had been confirmed.

[11]	Ms Hebson began the decision letter by confirming that she had considered all documentation including the mandatory vaccination exemption process undertaken by Mr Tait. Ms Hebson also confirmed that in accordance with section 2.05 of the Children’s Health Queensland Human Resources Delegations Manual (‘the Delegations Manual’), Mr Tait had the appropriate delegation to consider Ms McCloskey’s exemption request and provide her with a decision.

[12]	Further, Ms Hebson acknowledges that Ms McCloskey’s request for an internal review was addressed to Mr Tracey. However, in accordance with section 27.04 of the Delegations Manual, Ms Hebson says that she holds the appropriate delegation to undertake the internal review in accordance with Directive 11/20 Individual employee grievances (‘Directive 11/20’).

[13]	Ms Hebson explains that her role is to determine whether the decision made with regard to Ms McCloskey’s exemption application was fair and reasonable in the circumstances.

[14]	Ms Hebson says that she has carefully considered the following documentation and information:

•	Ms McCloskey’s exemption application dated 27 September 2021;

•	The correspondence from Father Fox dated 23 September 2021;

•	A vaccine resource by the National Catholic Bioethics Centre dated 21 July 2021;

•	An undated letter from the Australian Catholic Medical Association;

•	HED 12/21;

•	The outcome letter provided by Mr Tait dated 8 December 2021;

•	Human Resources Policy E12 – Individual Employee Grievances; and

•	Directive 11/20.

[15]	In consideration of the above, Ms Hebson proceeds to explain her review and decision. 

[16]	Firstly, Ms Hebson explains that the directive and policy mandating that all Queensland Health employees who work in a facility where care is provided to be vaccinated against COVID-19 was issued on 11 September 2021 by the Director-General of Queensland Health on the advice of the Chief Health Officer.

[17]	Ms McCloskey’s application for an exemption on religious grounds was referred to the Queensland Advisory Panel, Department of Health on 22 October 2021.

[18]	The Department recommended that Mr Tait decline Ms McCloskey’s exemption on 29 November 2021. Consideration was given to Ms McCloskey’s religious belief and the connection of that religious belief to the requirements under the directions, balanced against the purposes of the vaccination requirements.

[19]	Mr Tait reviewed Ms McCloskey’s exemption application and the recommendation provided by the Department, ultimately determining in his decision letter of 8 December 2021 to refuse Ms McCloskey’s application. Mr Tait said he was satisfied that the decision was compatible with human rights.

[20]	Ms Hebson confirms that the internal review was undertaken at the request of IR Claims on Ms McCloskey’s behalf on 17 December 2021.

[21]	When considering Mr Tait’s decision, Ms Hebson says she had in mind the requirement of HED 12/21 to ‘ensure the readiness of the health system in responding to the COVID-19 pandemic, to protect the lives of employees, patients and the community they service’.

[22]	Ultimately, Ms Hebson formed the view that Mr Tait undertook the appropriate steps and considerations in relation to Ms McCloskey’s exemption application. Ms Hebson therefore confirmed Mr Tait’s decision to decline the application. Ms Hebson wrote:

In my assessment, Mr Tait’s decision is justified, as the purpose of the requirement to be vaccinated under the Directive 12/21 includes protecting staff and patients from infection with COVID-19 and the maintenance of a proper and efficient health system in a time of a global pandemic.

In making a determination, Mr Tait considered whether less restrictive, yet effective alternatives exist, that ensure the purpose of Directive 12/21 is achieved. Following my review, I affirm Mr Tait’s determination that no alternatives can be identified and therefore, Mr Tait’s decision is justifiable.

[23]	Ms Hebson also considered that any limits on Ms McCloskey’s human rights (including the right to equality and non-discrimination and the right to not receive medical treatment without consent) were justified to ensure the readiness of the health system in responding to the pandemic and in the interests of protecting the community and the lives of both employees and patients. Ms Hebson says this outweighs any limits on Ms McCloskey’s human rights. 

[24]	Similarly, Ms Hebson says that she is satisfied that Mr Tait’s decision to refuse the exemption was also compatible with human rights, reiterating that ‘the decision does not itself compel a person to be vaccinated, but it does impose consequences upon people who are not vaccinated where there is not good reason’. 

[25]	Ms Hebson proceeds to advise Ms McCloskey that she will receive further correspondence about her non-compliance with the direction to be vaccinated, noting that it is a lawful direction.
[26]	The letter concludes with information about seeking an external review and accessing the Respondent’s employee assistance policy. 

Appeal principles

[27]	Section 562B(3) of the Industrial Relations Act 2016 (Qld) (‘the IR Act’) provides that a public sector appeal is to be decided by reviewing the decision appealed against and 'the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable'.

[28]	Findings made in the decision which are reasonably open on the relevant material or evidence before the decision-maker should not be expected to be disturbed on appeal. 

[29]	A public sector appeal is not an opportunity for a fresh hearing, but a review of the decision arrived at by the decision-maker. 

[30]	In deciding this appeal, s 562C(1) of the IR Act provides that the Commission may:

(a)	confirm the decision appealed against; or
…
(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. 

Legislative framework 

[31]	The Appellant filed her appeal before the commencement of the new Public Sector Act 2022 (Qld) (‘the PS Act’) on 1 March 2023. Section 289 of the PS Act repeals the previous Public Service Act 2008 (Qld) which was in effect at the time of the internal review decision and when Ms McCloskey filed her appeal. 

[32]	Section 324 of the PS Act relevantly provides: 

(1)		This section applies if—
		(a)			before the commencement, a person appealed against a decision under the repealed Act, section 194; and
		(b)		immediately before the commencement, the appeal had not been decided.

(2)		From the commencement, the appeal must be heard and decided under chapter 3, part 10.

[33]	Immediately before the commencement of the new PS Act, Ms McCloskey’s appeal had not been decided. I will therefore decide the appeal under ch 3, pt 10 of the new PS Act.

[34]	Section 131 of the PS Act lists various categories of decisions against which an appeal may be made. Section 131(1)(d) provides that an appeal may be made against a fair treatment decision.
[35]	Section 129 of the PS Act relevantly states:

129 	Definitions for part
…
fair treatment decision means a decision a public sector employee believes is unfair and unreasonable.

[36]	Section 133 of the PS Act explains who may appeal a fair treatment decision:

133 	Who may appeal
…
(d) 	for a fair treatment decision—a public sector employee aggrieved by the decision;

Ms McCloskey’s reasons for appeal

[37]	Ms McCloskey’s reasons for appeal can be summarised as follows:

•	The Respondent did not consult with Ms McCloskey or her union, industrial association or representatives.

•	Ms McCloskey sought to be heard during the decision-making process but was not;

•	As a result of the above, Directive 11/20 regarding individual employee grievances has not been discharged;

•	The decision-makers may have held an actual or inherent conflict of interest, noting they were ‘unknown people in the review committee’ who may have held senior roles with a ‘duty to their employer as a [Hospital and Health Service]’;

•	The Respondent is a ‘Person Conducting a Business or Undertaking’ and Ms McCloskey’s HHS is the ‘host’ for the purpose of the Work Health and Safety Act 2011 (Qld) (‘the WHS Act’). Ms McCloskey says the Respondent is responsible for consultation, cooperation and coordination to ensure legal compliance with the WHS Act ‘and other legislation’ as it applies to ‘this Service Agreement’. The Appellant says, ‘This includes, but is not limited to (a) codes of practice, yet the HHS delegated this back to the Department of Health and the Appellant put both the HHS and their employer on notice of this conflict’. 

The Respondent’s submissions 

[38]	The Respondent’s submissions summarise the background to Ms McCloskey’s appeal and set out a chronology of events which has already been replicated from paragraphs [1] to [26] above.

[39]	Ultimately, the Respondent submits that the decision to refuse Ms McCloskey’s exemption application was fair and reasonable.  

[40]	The Respondent says that as has been consistently held by the Commission, HED 12/21 and the requirement to receive a COVID-19 vaccine was a lawful and reasonable direction.

[41]	Further, the Respondent says that the matters raised by Ms McCloskey in her appeal notice have been extensively considered by the Commission and determined in both public sector appeals and the collective reinstatement proceeding of Mocnik & Ors v State of Queensland (Queensland Health). The Respondent submits that none of the matters raised by Ms McCloskey have been found in favour of employees or former employees.

[42]	In Mocnik, the Commission confirmed that HED 12/21 required a relevant employee to be vaccinated against COVID-19 unless an exemption had been granted. The Respondent reiterates that such a direction was lawful and reasonable.

[43]	Moreover, while Ms McCloskey claims that inadequate consultation occurred, the Respondent says that Mocnik confirmed there had been no breach of the WHS Act with respect to consultation.

[44]	The Respondent also disputes Ms McCloskey’s claim that an inherent conflict of interest arose in that the members of the review committee were either employed by Queensland Health or the CHQHHS. The Respondent says that Ms Hodges appropriately addressed this in her letter of 13 December 2021 and did not render the decision unfair or unreasonable. That members of the review committee who made recommendations to Mr Tait (the original decision-maker), are employed by Queensland Health or the CHQHHS, does not give rise to any potential conflict of interest.

[45]	Moreover, the Respondent says that Ms McCloskey’s application for an exemption on the basis of a genuinely held religious belief was considered, however it was open to the decision-maker to determine that these beliefs did not outweigh or take precedence over the objectives and requirements of HED 12/21.

[46]	Finally, the Respondent says that it considered Ms McCloskey’s human rights and any limitations placed were reasonable and demonstrably justified in the context of the COVID-19 pandemic. The Respondent says it was in the public interest to ensure the readiness of the health system in responding to the pandemic, thereby protecting the lives of employees, patients and members of the community. The Respondent submits that the Commission has consistently found HED 12/21 to be consistent with the Human Rights Act 2019 (Qld).

[47]	In consideration of the above, the Respondent requests that the decision appealed against be confirmed on the basis that it is fair and reasonable in the circumstances.

Ms McCloskey’s submissions

[48]	Ms McCloskey says that she complied with the requirements to receive a religious exemption from vaccination. Ultimately, she says that she provided proof of her deeply held religious belief that she could not be vaccinated against COVID-19.

[49]	In finding that the objectives and requirements of HED 12/21 outweighed any limitations on Ms McCloskey’s human rights, Ms McCloskey says that the decision-maker made a mockery of ‘the process of even allowing a religious exemption application’. 

[50]	Furthermore, Ms McCloskey contends that the Respondent ‘glossed over’ many of the ‘arguments’ put forward by Father Fox in his correspondence provided in support of her application. 

[51]	Ms McCloskey submits that the decision-maker was unable to make a ‘counter claim’ to deny her religious exemption and questions the decision-maker’s theological expertise. 

[52]	In concluding her submissions, Ms McCloskey says:

I could not have ‘rendered unto Caesar the things that are Caesar’s’, as I am not a possession of the State of Queensland and being an employee of Queensland Health does not make me so. I am a Sovereign being made in the Image of God. I provided the only reqirements [sic] specified in the religious exemption application.

[53]	Ms McCloskey seeks that the Commission substitute the decision with one which approves her religious exemption. 

Consideration

Appeal ground: The Respondent did not consult with Ms McCloskey and her request to be heard during the decision-making process was denied

[54]	While only recently allocated to me for consideration, Ms McCloskey’s appeal notice was lodged on 22 February 2022. A considerable time has passed since the appeal was lodged and throughout this time, many decisions have been made by this Commission about matters including consultation surrounding the introduction of HED 12/21.  
[55]	In Mocnik, the Commission confirmed that in implementing HED 12/21, Queensland Health did not breach the WHS Act regarding consultation.

[56]	With regard to being heard during the exemption application process, it seems to me that Ms McCloskey had an opportunity to provide material in support of her exemption application and that this material was considered by Mr Tait. Ms McCloskey also exercised her right to seek a review of the decision. I am unable to find that Ms McCloskey did not have an opportunity to put forward information in support of either her exemption application or her request for internal review. 

Appeal ground: The decision-makers may have had a conflict of interest

[57]	In support of this appeal ground, Ms McCloskey posits that the members of the committee considering exemptions may have had a conflict of interest as they had a duty to their employer, the Queensland Health.

[58]	Ms McCloskey provides no additional information in her written submissions to support her claims that the committee or members of the committee had a conflict of interest on the basis that they were employed by Queensland Health.

[59]	There is no evidence before me to demonstrate that the consideration of the exemption committee, the decision of Mr Tait, or the internal review decision of Ms Hebson, were affected by a conflict of interest.

Appeal ground: Ms McCloskey provided proof of her deeply held religious belief and this was what was required to receive an exemption

[60]	I accept that Ms McCloskey provided information in support of her application for an exemption. While Ms McCloskey states that the decision-maker ‘glossed over’ the matters set out by Father Fox in the letter he provided in support of her application,  I am satisfied that the document was considered by the exemption committee, by Mr Tait and Ms Hebson. It was not necessary that Ms Hebson set out in detail the matters raised in Father Fox’s correspondence. Ms McCloskey had a copy of the letter, it was attached to her exemption form, and it was referred to by Ms Hebson.  I am satisfied that all people involved in the exemption decision and the internal review understood the contents of the letter and that Ms Hebson’s reasons are sufficient to demonstrate that the letter was considered.

[61]	I also accept Ms McCloskey’s submission that the decision-maker has not made a ‘counter-claim’ to her religious beliefs.  However, it does not seem to me that in either the initial decision declining the exemption or in the subsequent internal review decision, that the decision-makers rejected Ms McCloskey’s stated religious beliefs. Instead, they weighed Ms McCloskey’s religious beliefs against the purpose and requirements of HED 12/21. Repeated decisions of this Commission have found that it was open to the relevant decision-maker to determine that the religious beliefs of an individual did not outweigh the objectives of HED 12/21. 

[62]	The decision also considered Ms McCloskey’s human rights. Ms Hebson properly noted that the decision to refuse the exemption request engages or limits a number of Ms McCloskey’s human rights and identified those rights. Ms Hebson also identified that the decision to refuse the exemption does not compel a person to be vaccinated but did result in consequences for people who chose not to be vaccinated. Further, Ms Hebson turned to the impact of her internal review decision upholding the refusal to grant the exemption and determined that y limitation on Ms McCloskey’s human rights was justified by ‘the need to ensure the readiness of the health system in responding to the COVID-19 pandemic, and the intent of the Directive, to protect the lives of employees, patients and the community they serve’.

[63]	The exemption process involved making an application for consideration by the Queensland Advisory Panel of the Department of Health. The application form stated that in order to apply for exemption, an employee must provide a letter from a religious leader or official specifying their deeply held religious beliefs and the affirmation or connection to a religious group. It was not the case that the provision of an application for exemption along with supporting material would provide an automatic exemption. It was always the case that the Respondent would consider the application and decide as to whether the exemption should be granted. I understand that Ms McCloskey feels that she participated in the process and provided evidence of her deeply held religious beliefs and that this should have been sufficient to be granted the exemption. However, the process involved the committee balancing the individual’s exemption application with the purpose of the vaccination direction and this is what occurred. 

[64]	Ms Hebson was not required to have theological expertise to review the exemption application process as it related to Ms McCloskey. What Ms Hebson was required to do was review the steps undertaken by Mr Tait to consider the exemption application, the decision he made and the reasons for decision he provided to Ms McCloskey.

[65]	I am satisfied that Ms Hebson’s reasons for decision are sufficient for Ms McCloskey to understand why Mr Tait’s decision was being confirmed upon internal review. Ms Hebson confirms that she has delegation to conduct the internal review and that she has considered all documentation relevant to the process. On page two of the letter, Ms Hebson provides a list of the documentation and information she has considered. I am satisfied that Ms Hebson properly considered Mr Tait’s decision. As stated above, Ms Hebson properly considered Ms McCloskey’s human rights.  Ms Hebson also informed Ms McCloskey of her right to seek an internal review. 

[66]	The decision of Ms Hebson to confirm Mr Tait’s decision to refuse Ms McCloskey’s application for exemption from HED 12/21 was fair and reasonable. 

Order

1.	The decision appealed against is confirmed.