QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Rutter v State of Queensland (Queensland Health) [2023] QIRC 054	
		
PARTIES:	
	Rutter, Fiona-Dee
(Appellant)

v

State of Queensland (Queensland Health)
(Respondent)
	
CASE NO.:
	PSA/2022/913
	
PROCEEDING:
	Public Service Appeal – Fair Treatment Decision 
	
DELIVERED ON:
	20 February 2023	
MEMBER:

HEARD AT:	Power IC

On the papers
	
ORDER: 	Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed.
	
CATCHWORDS:	PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – Public Service Appeal – where the Health Employment Directive No. 12/21- Employee COVID-19 vaccination requirements required employees who are employed to work in a hospital or other facility where clinical care or support is provided  must have received at least a first dose of a COVID-19 vaccine by 30 September 2021 and must have received the second dose of a COVID-19 vaccine by 31 October 2021 – appellant sought an exemption – exemption approved conditionally – whether conditions imposed fair and reasonable
	
LEGISLATION:	Hospital and Health Boards Act 2011 (Qld), s 51A

Industrial Relations (Tribunals) Rules 2011 (Qld), r 97

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

Public Service Act 2008 (Qld), s 194

Workplace Health and Safety Act 2011 (Qld)

Workplace Health and Safety Regulations 2011 (Qld)
	
CASES:	Brandy v Human Rights and Equal Opportunity Commission (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	

Reasons for Decision

Introduction

[1]	Ms Fiona-Dee Rutter ('the Appellant') is employed by the State of Queensland (Queensland Health) ('the Respondent') within Metro South Hospital and Health Service ('MSHHS') as a General Services Assistant, Environmental Services at the Logan 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.

[4]	Clause 8.1 of the Directive provides:

8.1 	Existing employees currently undertaking work or moving into a role undertaking work listed in a cohort of Table 1, must:

a. 	have received at least the first dose of a COVID-19 vaccine by 30 September 2021; and 

b. 	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]	On 23 September 2021, the Appellant applied for an exemption to the mandatory vaccine requirements of the Directive due to a recognised medical contraindication to the COVID-19 vaccine. 

[7]	On 16 December 2022, the Appellant provided 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. The letter confirmed that the end date of the trail was 13 October 2022.

[8]	By letter dated 17 February 2022, Mr Dave Waters (Mr Waters), Executive Director Human Resources, MSHHS, advised the Appellant that her exemption request had been conditionally approved until 13 October 2022 and outlined conditions under which the exemption has been granted:

(a)	The exemption you have been granted is time limited until 13 October 2022. After this date, I expect you to immediately become fully vaccinated against COVID-19 with a TGA approved vaccine;
(b)	You are required to make reasonable efforts to receive a TGA-approved COVID-19 vaccine as soon as possible after 13 October 2022;
(c)	After you have been fully vaccinated with a COVID-19 vaccine, you will be required to maintain vaccine protection in accordance with ATAGI recommendations;
(d)	Before you are able to return to the workplace or to any facility within Metro South Health where clinical care is provided, the Executive Director, Logan and Beaudesert Health Service will undertake a formal risk assessment of the risk of attendance in a workplace where clinical care is provided by an employee who is not fully vaccinated with a TGA approved vaccine, including the risks posed to the employee, patients, visitors and other employees;
(e)	In the event the assessed risk is not acceptable, Metro South Health Human Resources will work directly with the Department of Health to identify a suitable position within the Department of Health to which you can be redeployed to ensure your productive engagement for the duration of your time-limited exemption; and
(f)	If appropriate alternative duties are identified that you are able to safely undertake without having received a TGA-approved vaccine, you will be required to undertake those duties as reasonable.

[9]	On 23 February 2022, a risk assessment was conducted by MSHHS to determine whether the Appellant can safely perform her role as a General Services Assistant in Logan Hospital. The risk assessment outlined that the Appellant was at a 'very high' risk at being exposed to and transmitting COVID-19.

[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 for the decision to impose conditions on the Appellant's exemption be reviewed, namely, the condition that the Appellant not to enter Metro South Health facility for work purposes. 

[11]	By letter dated 30 August 2022, Dr Michael Cleary (Dr Cleary), Officer of the Health Service Chief Executive, MSHHS, advised the Appellant that he was satisfied that:

(a)	Mr Waters has undertaken appropriate steps and consideration with respect to the Appellant's application for an exemption to comply with the requirements of the Directive; and

(b)	the risk assessment conducted was reasonable and fulfilled MSHHS's obligations under the Workplace Health and Safety Act 2011 (Qld) and the Workplace Health and Safety Regulations 2011 (Qld).

[12]	On 20 September 2022, the Appellant filed an appeal notice, appealing against the decision of Dr Cleary dated 30 August 2022, pursuant to s 194(1)(eb) of the Public Service Act 2008 (Qld). 

Appeal principles

[13]	The appeal must be decided by reviewing the decision appealed against. As the word 'review' has no settled meaning, it must take its meaning from the context in which it appears. 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, but involves a review of the decision arrived at and the decision making process associated therewith.

[14]	The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable. The issue for determination is whether the decision of Dr Cleary dated 30 August 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?

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

(a)	confirm the decision appealed against; or

(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.

Grounds of Appeal

[16]	The Appellant provided an extensive chronology as part of the appeal notice and contends that the decision is neither fair nor reasonable on the basis that:

(a)	it neglects the valid exemption for employees who are participants in a COVID-19 vaccine trial, including the Appellant, as affirmed by the Health Minister;

(b)	the Appellant poses minimal risk of COVID-19 infection and transmission and is at no greater risk than any other vaccinated person in a healthcare setting, as indicated by her serology results;

(c)	it is proven and accepted by medical professionals and the CHO that persons vaccinated with TGA approved vaccines can be and have been infected with and transmit COVID-19;

(d)	it has been confirmed that the antibodies present in the Appellant's serology results are persistent from vaccination, and there has not recently, nor potentially ever been an infection with COVID-19; and

(e)	receiving a TGA approved vaccine would compromise the validity of the clinical trial and the Appellant's participation in the clinical trial is in the public interest and she should not be punished.

[17]	The Appellant contends that excluding the Appellant in the following circumstances lacks logical justification and is patently unfair and unreasonable:

a. 	She is a participant in a COVID-19 vaccine clinical trial and has received a Government Approved exemption on this basis;
b.	She has received the SARS-CoV-2 vaccine as part of the trial;
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 Rutter’s position are allowed to enter and remain in healthcare settings.

Respondent's submissions

[18]	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 MSHHS to assess the risk to other staff, patients, clients and other persons in the healthcare setting and determine whether the worker may continue to work in the healthcare setting. MSHHS conducted a risk assessment specifically related to the Appellant's presence in the workplace while she was not vaccinated with a recognised COVID‑19 vaccine;

(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)	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 personal within the hospital;

(f)	the Appellants role as a General Services Assistant requires her to have regular physical contact with areas of the hospital where patients and staff are exposed to COVID‑19 and is considered to present a greater risk at being exposed to and contracting as well as transmitting COVID-19 to those most at risk;

(g)	it is not reasonable to return the Appellant to work, particularly when the risk assessment confirmed her risk was 'very high';

(h)	the risk assessment conducted met the required safety obligations and aligned with workplace health and safety policies and procedures;

(i)	MSHHS 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; and

(j)	MSHHS attempted to identify a suitable position to redeploy the Appellant for the period of her conditionally approved exemption, however, to date, has been unsuccessful having regard to the availability of suitable positions, the nature of the Appellant's role and the limited facilities available at which clinical care is not provided.

[19]	The Respondent submits that, where the Appellant appears to be appealing the decision to impose conditions on the Appellant's exemption, the appeal is approximately six months outside the statutory time period.

Appellant's submissions

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

(a)	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, which is a valid exemption under the Directive;

(b)	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;

(c)	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;

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

(e)	having established a valid basis for an exemption, there is no additional scope stipulated in the Directive to impose upon the Appellant the extraneous condition that she does not enter her workplace;

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

(g)	the conclusion reached from MSHHS's risk assessment alleging that the Appellant posed a 'very high' risk is contrary to the medical evidence as to the Appellant's risk profile and cannot be justified;

(h)	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;

(i)	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 a spike antigen approved vaccine, and it would be improper of MSHHS to ignore these unequivocal facts;

(j)	even those who have received an approved TGA vaccine are not immune to COVID-19 and 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;

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

(l)	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. Such an exercise would undermine the incentive to take part in a clinical trial and further, that the risk profile of certain participants would not justify workplace exclusion, including the Appellant;

(m)	the decision suggests that MSHHS 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; and

(n)	the Health Minister has confirmed the intention of the exemption that participants who have received at least one dose of the trial vaccine be treated as though they are fully vaccinated and be allowed to enter healthcare facilities.

[21]	The Appellant rejects the Respondent's assertion that the appeal is lodged out of time, submitting that the grievance process was followed subsequently and any objection to the matter being out of time should have been made when the stage 1 grievance was made. The Appellant submits that it is improper for the Respondent to now allege the matter to be out of time when the Appellant has followed the grievance procedure and filed the appeal within the 21 day timeframe. 

Consideration

[22]	Consideration of an appeal of this kind requires a review of the decision by Dr Cleary to determine if the condition imposed on the Appellant's exemption was fair and reasonable in the circumstances. 

[23]	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 17 February 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.  

[24]	The Appellant did not seek a review of the decision of 17 February 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 followed and an appeal filed in this Commission following the final internal decision. I consider the decision the subject of this appeal to be the internal review decision of Dr Cleary of 30 August 2022, which is appealable as a fair treatment appeal under the Public Service Act. This appeal was filed within the 21 day of Dr Cleary's decision and accordingly is within the statutory timeframe.  

[25]	The decision maker, Dr Cleary, reviewed the decision by Mr Waters to continue the conditional exemption provided to the Appellant following her application for exemption. 

[26]	Dr Cleary stated in his decision that he had considered Mr Waters' decision along with Ms Cridland's risk assessment and concluded that the decisions were reasonable and appropriate in accordance with the HED Directive and the duty of care obligations on the Health Service to protect the lives of staff, visitor and patients. Dr Cleary outlined the following reasoning: 

The CHO Direction refers to circumstances where a person is approved for an exception from the requirement for workers who enter, work in, or provide services in a healthcare setting to be vaccinated against COVID-10. The COVID-19 vaccine exemption application process allows for review by the decision maker on whether such exception can be granted, which you were only conditionally approved for. However, it should be noted that you have not been granted an exception or exemption from the requirements of the HED Directive or the CHO Direction, which allows for you to enter a MSH facility where care is provided, without receiving the prescribed doses of a COVID-19 vaccine. 

[27]	Dr Cleary considered the CHO Direction (Workers in a healthcare setting COVID-19 Vaccination Requirements Direction No.4 issued by the Chief Health Officer) and determined that the imposition of the condition to not enter a MSH facility without being fully vaccinated against COVID-19 was not in contradiction with this Direction.

[28]	The CHO Direction stated that the responsible person for the healthcare setting must assess the risk to other staff, patients, clients and other persons in the healthcare setting and consider whether the worker in healthcare may continue to work in that setting.        Ms Cridland consequently conducted a risk assessment and determined that the Appellant was unable to return to her position as a General Services Assistant or any other facility within MSH where clinical care is provided until she received a TGA-approved COVID-19 vaccine. Dr Cleary reasonably determined that this assessment was to be supported.

[29]	Dr Cleary considered the Appellant's serology results and noted that the reports do not counter the fact that the Appellant remains unvaccinated against COVID-19 for the purposes of the Directive.  The Directive requires the administration of a COVID-19 vaccine that has been approved by the TGA for use in Australia or endorsed by WHO-COVAX. The trial vaccine received by the Appellant was not approved by the TGA for use in Australia.  

[30]	The Respondent attempted to identify a suitable position for redeployment for the period of the Appellant's exemption and Dr Cleary outlined the alternative positions considered in his decision before determining that the positions were either not available or not able to be accommodated within the Appellant’s capacity as an Operational Officer. 

[31]	Dr Cleary confirmed that the decision regarding whether an employee is exempt from vaccination requirements in the CHO Direction and the HED Directive is at the discretion of the appropriate MSH delegate. Relevant factors for consideration in exercising that discretion include the requirement to ensure the readiness of the health system in responding to the COVID-19 pandemic and to protect the lives of employees, patients and the community. It was open to Dr Cleary to determine that these factors had been appropriately considered by Mr Waters. 

[32]	In consideration of the Appellant's human rights, Dr Cleary stated that he was satisfied that the decision to conditionally approve the Appellant's exemption was compatible with human rights on the basis that the limits on human rights were justified in the circumstances. The conclusion reflects consideration of the balance between the direction to not attend the workplace and the purpose of the Directive to protect the lives of employees, patients and the community. 

[33]	The Appellant attached to their submissions an answer by the Minister for Health to a Question on Notice stating 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.' I note that the answer provided by the Minister listed specific public health directions altered to accommodate those taking part in a COVD-19 vaccine trial, however this list did not include the HED Directive. In circumstances where the Directive was not covered by the Minister's statement, it was open to Dr Cleary to confirm that the Appellant was not permitted into the workplace whilst not compliant with the Directive. 

[34]	I note that the Appellant was advised at the beginning of the process 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 remain on special leave to protect the health and wellbeing of herself along with the patients and the public was fair in the circumstances.

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

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.

[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.

Suppression order

[37]	The Appellant submits that the Respondent has disclosed various material that contain sensitive information pertaining to the Appellant without her consent and authorisation. The Appellant submits that the following material be suppressed:

a. 	All death certificates disclosed by the Respondent
b. 	The Appellant's Medicare details, phone number and address
c. 	The Appellant's medical records, with the exception of serology results relevant to proving the success of the vaccine trial.
d. 	The Appellant's date of birth from all documents including serology results;
e. 	The Appellant's 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 consents to 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). 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. 

[41]	Regard must be had to the principle of open justice. As considered in R v O'Dempsey (No 3), 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. 

[42]	The Appellant's submission does not raise any relevant basis upon which an exception to the principles of open justice would reasonably be granted. The only submission made by the Appellant states that the relevant material contains sensitive information and was disclosed to the Commission without the Appellant's consent. As I understand it, the material filed by the Respondent included documents provided by the Appellant as part of the exemption application process. As noted above, exceptions to the principle of open justice are few and generally do not include for reasons of loss of privacy. In these circumstances, the request for suppression is denied. 

Order

[43]	I make the following order:

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