Towards the end of 2021, the Queensland Chief Health Officer (CHO) issued Public Health Directions (Directions) requiring people who enter, work in or provide services in certain facilities, including hospitals, schools, correctional centres and police watch-houses, to be vaccinated against COVID-19.
As a result, a large cohort of the State’s public servants were directed by their chief executives to receive their COVID-19 vaccination by specified dates to ensure compliance with the CHO’s Directions. Staff of the Queensland Police Service (QPS) were not the subject of the CHO’s Directions, however Commissioner Katarina Carroll had, in September 2021, directed both civilian staff and police to have at least one vaccination dose by 4 October 2021 and a second dose by 24 January 2022.
Some public servants have not complied with the CHO's Directions or relevant agency's direction and remain unvaccinated.
What has followed is a series of claims in the Queensland Industrial Relations Commission (QIRC) by unvaccinated public servants, challenging decisions on exemptions to vaccination requirements, suspensions (both with and without pay) and discipline processes. Some of these claims have now been decided, providing guidance on how the QIRC may settle other claims that might follow.
The Queensland Supreme Court has been asked to judicially review the CHO's Directions, including on grounds under the Human Rights Act. The matter was set to be heard in early April, but was adjourned before commencement. The judicial review challenge will be the subject of future articles as that matter progresses.
How are the courts and commissions addressing these multiple legal challenges
The decided cases of the QIRC provide a helpful insight into the status of the CHO's Directions and the relevant agency’s direction with respect to mandatory vaccinations in the Queensland Public Service.
Key points from vaccine mandate cases
- Decisions by chief executives or their delegates regarding exemptions to vaccination requirements, suspensions and discipline processes are administrative decisions. They must be fair and reasonable, and natural justice must be afforded (i.e. the employee must be given an opportunity to respond to the proposed decisions). See J Colebourne v State of Queensland (QPS).
- Unvaccinated employees have lodged appeals under section 194(1)(eb) of the Public Service Act 2008 (PS Act) against decisions they believe are unfair and unreasonable (fair treatment appeals). The fair treatment appeals have been against decisions to refuse applications for vaccine exemptions, suspend employees with or without remuneration under section 137(1) of the PS Act and make disciplinary findings against employees.
Common concerns of workers seeking a vaccine exemption
- Common concerns raised by employees for seeking a vaccine exemption or refusing to comply with directions to be vaccinated against COVID-19 largely relate to the safety and efficacy of the vaccines.
- In the decisions that have been delivered to date, the QIRC has found that some of the common concerns are not persuasive:
- Blomfield v State of Queensland (Queensland Health): Ms Blomfield’s vaccine concerns included that Queensland Health had not provided a risk assessment; she was being coerced, manipulated or unduly pressured into being vaccinated such that any consent she might give would not be voluntary; the vaccine was “only provisionally approved and in human trials till 2023”; human rights encroachment; and concerns regarding the efficacy and safety of the vaccine.
The QIRC confirmed Queensland Health’s decision to refuse Ms Blomfield’s vaccine exemption, finding there was nothing in Ms Blomfield’s submissions that pointed to extenuating circumstances relating specifically to her circumstances and warranting an exemption.
- Neville v State of Queensland (Queensland Health): Ms Neville’s vaccine concerns included that she sought information from Queensland Health regarding various legislation, her employment contract and a “vaccine safety report” provided by the World Health Organisation; she requested that Queensland Health “accept full responsibility” for any injury caused to her by becoming vaccinated; bias of the decision-maker due to “their roles in ensuring everyone is vaccinated”; and she did not wish to “partake in a medical clinical trial”.
The QIRC found that Ms Neville’s concerns appeared to have been “carefully responded to” by Queensland Health during the grievance and show cause processes. The QIRC found the decision to make disciplinary findings against Ms Neville for her non-compliance with the direction to be vaccinated was fair and reasonable and confirmed the decision.
- Casson v State of Queensland (QPS): Mr Casson’s concerns related to a combination of safety and religious reasons. While the QIRC was not required to determine the merits of Mr Casson’s objections because the appeal related to the decision to suspend without pay, IC Dwyer did “… note that Mr Casson’s concerns regarding safety and efficacy are contradicted by the overwhelming majority of the global scientific and medical community”. IC Dwyer confirmed the decision to suspend Mr Casson without pay for non-compliance with the vaccine direction.
- Steinhardt v State of Queensland (Queensland Health): Mr Steinhardt applied for exemption from the vaccine direction, based primarily on religious grounds. His exemption was rejected by Queensland Health because “on balance, the competing considerations of workplace and community safety took precedence over Mr Steinhardt’s personal religious beliefs”. This decision was confirmed by the QIRC on appeal.
- While the QIRC is yet to decide a reinstatement application relating to the termination of the employment of an employee refusing to be vaccinated, the QIRC’s findings in relation to the above matters are likely to be persuasive.
Application for an exemption
- The onus is on the unvaccinated employee to make a case for exemption, not for the employer to look beyond the evidence presented by the employee. See, for example, J Colebourne v State of Queensland (QPS).
Suspension without remuneration
- While a common claim by unvaccinated employees is that suspension without pay (or the prospect of it) is being used by the State as punishment or a tool to coerce, the QIRC has recently upheld a number of decisions to suspend without pay on the basis that they are lawful:
- J Colebourne v State of Queensland (QPS): The QIRC confirmed the decision to suspend Ms Colebourne without pay due to her non-compliance with the vaccine direction. The QIRC found that the decision was fair and reasonable and that the decision-maker had considered the matters required by the legislation and Suspension Directive before suspending Ms Colebourne without pay.
- Casson v State of Queensland (QPS): The QIRC noted that the decision to suspend without remuneration is “a discretion that must be exercised with great care and attention to the rights of the employee, and with liberal doses of natural justice”. However, ultimately the QIRC found that, in this case, suspension without pay was lawful as it was “wholly inappropriate” for Mr Casson to receive income throughout the entire show cause process, which could last for months. The QIRC found Mr Casson’s conduct “represent[ed] a serious breakdown in the employment relationship that almost always justifies dismissal.”
- Graffunder v State of Queensland (Queensland Health): The QIRC found the decision to suspend Ms Graffunder without pay was lawful and confirmed the decision. The QIRC found the decision-maker had considered Ms Graffunder’s human rights, was not using suspension as a form of punishment, had complied with the requirements under the Suspension Directive to provide a suspension end date, had considered alternative options to suspension and Ms Graffunder’s personal and financial impacts, and had “reasonably balanced” those potential impacts with other circumstances relevant to the matter. In confirming the decision to suspend without pay, the QIRC was “satisfied” the decision included “intelligible justification following consideration of relevant matters” and that “the allegations against Ms Graffunder are serious and the evidence supporting the [suspension without pay decision is] compelling…”.
These matters need to be managed having regard to the highly regulated public sector framework that governs this area of law (including legislation; Public Health Directions; Public Service Commission directives, guidelines, policies and circulars; any agency’s direction to staff regarding vaccination; each agency’s policies and guidelines; applicable industrial instruments; case law; and the like). They also need to be managed having regard to the particular facts and circumstances of each matter.
If you have queries regarding mandatory vaccinations in the Queensland Public Service, please contact us below or send us your enquiry here.
Authors: Jackie Hamilton & Alice Woods
The information in this article is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.