QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Kay v State of Queensland (Queensland Health) [2022] QIRC 270
	
PARTIES:	
	Kay, Emma Louise
(Appellant)

v

State of Queensland (Queensland Health)
(Respondent)
	
CASE NO:
	PSA/2022/358
	
PROCEEDING:
	Public Service Appeal – Appeal against a fair treatment decision

DELIVERED EX TEMPORE ON:
	12 July 2022	
MEMBER:
	Dwyer IC
	
HEARD AT:	Brisbane  
	
ORDER:
	1.	The decision appealed against is confirmed.
	
CATCHWORDS:

	PUBLIC SERVICE – APPEAL - appeal against a fair treatment decision - where appellant employed by the State of Queensland as a Senior Occupational Therapist - where the Health Employment Directive No.12/21 - Employee COVID-19 vaccination requirements required employees to receive at least a first dose of a COVID-19 vaccine by 30 September 2021 and receive the second dose of a COVID-19 vaccine by 31 October 2021 - where the appellant sought an exemption due to genuine religious belief  and other exceptional circumstances - where exemption was refused -  risk posed to the health and wellbeing of patients, colleagues and other stakeholders -  where decision to refuse religious exemption and other exceptional circumstances exemption was fair and reasonable - where decision reviewing exemption decision confirmed
	
LEGISLATION:	Industrial Relations Act 2016 (Qld) ss 562B, 562C

Public Service Act 2008 (Qld)

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

Work Health and Safety Act 2011 (Qld)
	
CASES: 	Amaya v State of Queensland (Queensland Health) [2022] QIRC 117

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

Brandy v Human Rights and Equal Opportunity Commission [1995] 183 CLR 245

Slykerman v State of Queensland (Queensland Health) [2022] QIRC 039
	
APPEARANCES: 	Ms E Kay, the appellant

Ms J O'Dea and Ms A Malone for the respondent 	

Reasons for Decision (ex tempore)
		
	Background 

[1]	Ms Emma Kay has been employed by Queensland Health ('the department') as an occupational therapist since approximately 2017. 

[2]	Ms Kay is an employee subject to the Health Employment Directive No. 12/21 - Employee COVID-19 vaccination requirements ('the directive') which required certain categories of Queensland Health employees to be vaccinated against COVID-19 within a stipulated time frame. 

[3]	It is not controversial that the directive applied to Ms Kay and that she has not complied with it. While it was raised by Ms Kay previously it does not appear (in subsequent material filed or in the submissions at hearing) that she challenges the lawfulness of the directive or that it is a reasonable direction in the broad sense. This appeal relates to Ms Kay's application for an exemption from the directive. 

[4]	On 30 September 2021, Ms Kay made an application for exemption from compliance with the directive. In her exemption application, Ms Kay relied on two exemption categories, namely:

1.	that she had a genuinely held religious belief; and

2.	that there were other exceptional circumstances giving rise to an exemption. 

[5]	The exemption application was considered by Ms Haley Farry. On 4 January 2022, Ms Farry advised Ms Kay that her exemption application had been refused and she was subsequently required to comply with the directive.

[6]	On 14 January 2022, Ms Kay sought an internal review of Ms Farry's decision. In her review application, Ms Kay restated the grounds relied on for the exemption but additionally criticised the adequacy of Ms Farry's consideration of the religious objection and also added a letter from her pastor confirming her religious beliefs. Further, Ms Kay also added complaints about the limitation of her human rights. 

[7]	In her internal review decision dated 11 February 2022, Ms Annette Scott upheld the decision of Ms Farry. Importantly, in her decision letter, Ms Scott said at page 3:

While I may not mention every document and/or information contained in these documents, I wish to advise I have fully and carefully considered everything you have provided. This includes the letter dated 17 January 2022 from Murray Holmes, lead pastor, Highlands Church.

[8]	At page 5, Ms Scott stated:

I reiterate your individual circumstances, including your health concerns and your religious belief and the connection of that religious belief to the requirements under the directions, were balanced against the purpose of the vaccination requirements.

[9]	It is the decision of Ms Scott that Ms Kay now appeals.

Statutory framework for public service appeals

[10]	The appeal is made pursuant to chapter 11 of the Industrial Relations Act 2016 (Qld) ('the IR Act'), which provides the Queensland Industrial Relations Commission ('the Commission') with jurisdiction to deal with appeals under the Public Service Act 2008 (Qld) ('the PS Act'). 

[11]	An appeal is a review of a decision. It is not a rehearing of the matter on its merits. The meaning of the word 'review' is not defined and accordingly it must take its meaning from the context in which it appears. I am required to review the decision of Ms Scott to determine whether that decision was fair and reasonable. 

[12]	The IR Act limits the powers of the Commission with respect to such appeals and the orders that can be made, namely:

(a)	confirm the decision appealed against; or

(b)	for an appeal against a promotion decision—set the decision aside, and return the matter to the decision maker with a copy of the decision on appeal and any directions permitted under a directive of the commission chief executive under the Public Service Act 2008 that the commission considers appropriate; 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.

Submissions of the parties 

[13]	The parties in these proceedings filed written submissions in accordance with Directions issued on 9 March 2022 and 5 April 2022. I have had regard to the submissions filed by the parties. I do not intend to re-state the submissions in full in these reasons but instead will deal with the salient aspects. 

Ms Kay

[14]	Ms Kay's submissions broadly restate the grounds relied on for her exemption application, i.e., her genuinely held religious beliefs and her personal concerns regarding safety of the vaccines. While Ms Kay has touched on other matters in her written submissions, the 'proper' consideration of these two grounds remain the central theme of her appeal. 

[15]	Further, Ms Kay relies on the decision of Amaya v State of Queensland ('Amaya') in support of her submission that the reasons provided both by Ms Farry and (relevantly to this appeal) by Ms Scott, do not adequately explain the decision to refuse her request for exemption.

The department

[16]	The primary submissions of the department reiterate the reasoning applied by Ms Scott to justify the refusal and note that Ms Kay has provided no independent medical evidence to support her concerns about the risk factors she says her general practitioner identified or the alleged adverse reactions of blood relatives to the COVID vaccines. 

[17]	The department adopts the observation made by the Commission as currently constituted in the decision of Slykerman v State of Queensland to the effect that Ms Kay fails to accept the importance of the competing considerations of workplace and community safety and how these factors could take precedence over her religious beliefs.

[18]	In their reply submissions the department seeks to distinguish this matter from the facts of Amaya by noting that there is a clear reference to consideration of Ms Kay's religious beliefs in both reasons provided by Ms Farry and Ms Scott.

Consideration

[19]	The decision of Ms Scott is extensive. It runs to some seven pages and touches on all aspects of this matter, commencing with the exemption application on 30 September 2021 and an extensive discussion about the purposes of the directive. The decision includes a confirmation of the grounds for internal review sought by Ms Kay, including references to the asserted lack of reasons for refusing the religious exemption and also the concerns about possible side effects from the vaccines.

Safety concerns

[20]	With respect to the two focal points of Ms Kay's appeal, the treatment of her exemption application in respect of her safety concerns can be dealt with quite simply. In making her application for exemption on the ground of 'other exceptional circumstances' Ms Kay cites 'discussions' with her general practitioner; 'testing' that was undertaken on her (presumably to establish suitability or otherwise to receive a vaccine), and adverse reactions to the vaccine allegedly experienced by certain blood relatives. 

[21]	In essence, Ms Kay submits that these matters give rise to exceptional circumstances worthy of an exemption because of the allegedly unique risk posed to her personally by the vaccines. 

[22]	At every level in this matter, from the exemption application through to the hearing of this appeal, Ms Kay has declined or failed to produce a single piece of independent medical evidence to support her assertion of the risk posed to her by the vaccines. 

[23]	While Ms Kay is entitled to maintain her privacy in respect of her personal health issues, her expectation that Queensland Health ought to simply accept her assertions in such a significant context is misplaced. The failure by Ms Kay to prove the facts she relies on to support the ground of 'other exceptional circumstances' make the decision of Ms Farry and ultimately Ms Scott to refuse her exemption on this ground inevitable. 

[24]	Further, it matters little that her asserted 'other exceptional circumstances' might have been misdescribed or mischaracterised at some point as an alleged medical contraindication. If such an error occurred it does not render the decision unfair or unreasonable because, in the absence of independent medical evidence to support Ms Kay's assertions, the same outcome would be achieved.

Genuine religious belief

[25]	With respect to the religious belief, it is sufficiently apparent from the decisions of Ms Farry and Ms Scott that they had regard to the matters identified by Ms Kay as forming the basis of her religious beliefs. 

[26]	It is also apparent that neither Ms Farry nor Ms Scott suggested that Ms Kay's religious beliefs were anything other than genuinely held. To the extent that it is relevant, I am equally convinced of the sincerity with which Ms Kay holds her religious beliefs.

[27]	However, what is also apparent from both Ms Farry and ultimately Ms Scott's decision is that they were engaged in an exercise of balancing Ms Kay's genuinely held beliefs against the very significant competing interest of the health and safety of the employees and patients of Queensland Health and any person who enters a Queensland Health facility.

[28]	While not diminishing the importance of her religious beliefs, I note that Ms Kay expresses her beliefs in both her exemption application and in her subsequent submissions in short and simple terms. She talks of 'having an affiliation with Christianity and God'. I appreciate that a full examination of Ms Kay's religious views would likely paint a much more complex picture, but that is not an exercise that has any relevance to the matters I am dealing with in this appeal. There was scant complexity to the avowed beliefs expressed by Ms Kay throughout the process and indeed, her membership of an actual church only arose after the directive took effect. 

[29]	Importantly I note that a belief in Christianity is not, of itself, inconsistent with  receiving a COVID vaccine. Given the large number of persons identifying as Christian within our society and given the number of people who have received a vaccine nationally there must be a great many Christians who have been vaccinated.

[30]	In Ms Kay's case, while she asserts her Christianity as the barrier, the only notable aspect of her beliefs that she refers to as preventing her from being vaccinated is the alleged use of aborted foetuses in the development of the vaccines. In the circumstances, while Ms Kay is entitled to exercise her Christian faith in this way, in a way that is no doubt consistent with her interpretation of scriptures, the genuineness of her beliefs is not sufficient to outweigh the enormous burden carried by the department not only to Ms Kay, but also to protect and keep safe its staff, patients and any other visitors to Queensland Health facilities. 

[31]	In those circumstances I consider that a rejection of Ms Kay's application for exemption, given the very simple religious grounds relied on, was entirely fair and reasonable in the circumstances. 

[32]	As to the issue of adequacy of the reasons provided by Ms Farry and more relevantly by Ms Scott, I note that both decisions made express reference to the material provided by Ms Kay in support of her religious exemption, including  (in Ms Scott's decision) the letter from Ms Kay's pastor which did not accompany the exemption application originally. Given that reference, I am left with no doubt that Ms Scott had regard to the material relied on for this purpose by Ms Kay.

[33]	At the hearing of this matter I asked Ms Kay to describe for me what more detailed response she might have expected to be included in Ms Scott's decision, given the very simplistic description of her stated belief. It was my impression that Ms Kay was not able to respond or elaborate in any compelling way so as to convince me that the reasons were inadequate. 

[34]	Of course it was entirely possible for the reasons to have been more elaborate. Not only was this a possibility but, in my view, they should have been. But my view in this regard does not mean that I consider that the reasons provided by Ms Scott were inadequate in the same way as the reasons in the Amaya decision were. 

[35]	On the whole, given the very simplistic nature of the beliefs expressed in very simple and short terms throughout Ms Kay's material, I consider that the simple dealing with the issue by Ms Scott was commensurate and, it follows, it was fair and reasonable.

Conclusion

[36]	I wholly understand why Ms Kay is disappointed with the decision of Ms Scott but her grievance with the decision does not appear to be a product of unfairness or unreasonableness on the part of Ms Scott but rather, her personal dissatisfaction.  

[37]	Ms Scott has been at pains in her decision to demonstrate the enormity of the balancing exercise being undertaken in the competition between Ms Kay's genuine beliefs as against the very significant obligations of Queensland Health under inter alia the Workplace Health and Safety Act 2011 (Qld), to protect and safeguard against injury and death.

[38]	While I feel sympathy for Ms Kay in her disappointment I ultimately consider that her grievance about the decision arises from her inability to accept that her personal views and concerns, valid and important as they are to her, cannot prevail over the sizable obligations of the department to guard against the risk of death and injury for all its employees, patients and visitors.

[39]	In all of the circumstances, I consider the decision to be fair and reasonable.

Order

[40]	I make the following order:

1.	The decision appealed against is confirmed.