QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Reasons for Decision
Introduction
Mrs Carmencita Fitzgerald (the Appellant) is employed by Queensland Health, State of Queensland (the Respondent) as a Registered Nurse within the Children's Health Queensland Hospital and Health Service (CHQHHS).
The Health Employment Directive No. 12/21 Employee COVID-19 vaccination requirements (Directive 12/21) mandates that particular groups of health service employees must receive the COVID-19 vaccine.[1]
[1] Health Employment Directive No. 12/21 cls 1, 7-8.
Relevantly, cl 8 of Directive 12/21 provides the following:
8.1Existing employees currently undertaking work…
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Details
- AGLC
- Fitzgerald v State of Queensland (Queensland Health) [2023] QIRC 87
- Case
- [2023] QIRC 87
- Decision Date
CaseChat Overview and Summary
In Fitzgerald v State of Queensland (Queensland Health), the court examined the refusal by the State of Queensland to grant the appellant an exemption from the Health Employment Directive No. 12/21, which required employees to be vaccinated against COVID-19. The appellant applied for an exemption on the basis of a medical contraindication but was denied both initially and upon internal review. The court was tasked with determining whether the decision to refuse the exemption was fair and reasonable, in light of the appellant's claimed medical conditions and the directive's requirements.
The central legal issues revolved around the interpretation and application of the Health Employment Directive No. 12/21, particularly clause 10, which allows for exemptions based on recognised medical contraindications or exceptional circumstances. The court needed to assess whether the appellant's medical conditions constituted a recognised contraindication to the COVID-19 vaccine and, if not, whether they represented exceptional circumstances warranting an exemption. Additionally, the court considered whether the decision-making process adhered to principles of fairness and reasonableness, as mandated by relevant statutes such as the Industrial Relations Act 2016 (Qld).
The court concluded that the decision to deny the exemption was fair and reasonable. The appellant's medical conditions, including ITP, asthma, and anaphylaxis, did not constitute a recognised medical contraindication to the COVID-19 vaccine, as confirmed by specialist advice obtained by Queensland Health. The court also noted that vaccine hesitancy and conscientious objection alone do not qualify as exceptional circumstances under the directive. Furthermore, the court found that the decision-making process was thorough and aligned with the principles of fairness and reasonableness, as it involved seeking expert medical advice and considering the appellant's submissions in detail.
The court's decision upheld the refusal of the exemption, confirming that the respondent's decision was fair and reasonable under the relevant legislative framework. The appellant's appeal was dismissed, and the original decision to deny the exemption was affirmed.
The central legal issues revolved around the interpretation and application of the Health Employment Directive No. 12/21, particularly clause 10, which allows for exemptions based on recognised medical contraindications or exceptional circumstances. The court needed to assess whether the appellant's medical conditions constituted a recognised contraindication to the COVID-19 vaccine and, if not, whether they represented exceptional circumstances warranting an exemption. Additionally, the court considered whether the decision-making process adhered to principles of fairness and reasonableness, as mandated by relevant statutes such as the Industrial Relations Act 2016 (Qld).
The court concluded that the decision to deny the exemption was fair and reasonable. The appellant's medical conditions, including ITP, asthma, and anaphylaxis, did not constitute a recognised medical contraindication to the COVID-19 vaccine, as confirmed by specialist advice obtained by Queensland Health. The court also noted that vaccine hesitancy and conscientious objection alone do not qualify as exceptional circumstances under the directive. Furthermore, the court found that the decision-making process was thorough and aligned with the principles of fairness and reasonableness, as it involved seeking expert medical advice and considering the appellant's submissions in detail.
The court's decision upheld the refusal of the exemption, confirming that the respondent's decision was fair and reasonable under the relevant legislative framework. The appellant's appeal was dismissed, and the original decision to deny the exemption was affirmed.
Orders
Orders of the court
Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appealed against is confirmed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
I have carefully considered all submissions and annexures but have determined not to approach the writing of this Decision by summarising the entirety of the material. My focus is on determining whether the Exemption Decision appealed against is fair and reasonable so I will instead refer only to the parties' key positions in my consideration.The Exemption Decision Clause 10 of Directive 12/21 allows employees to apply for an exemption, providing:10.1 Where an existing employee is unable to be vaccinated they are required to complete an exemption application form. On 30 September 2021, the Appellant applied for an exemption, on the basis of "a recognised medical contraindication to the COVID-19 vaccine".[6] The application did not include a medical certificate from the Appellant's treating specialist medical practitioner. [6] Employee COVID-19 vaccine exemption application form, 30 September 2021, 3. Subsequently on 9 November 2021, the Appellant sent the Respondent an email stating:·"I have an autoimmune illness in my 20's called ITP (Idiopathic Thrombocytopenic Purpura)"; ·she has asthma; ·she is anaphylactic to certain food, chemicals and preservatives; On 15 September 2022, Mr Dominic Tait[7] advised the Appellant of the decision to deny her request for an exemption. Within that letter, reference was made to two exemption applications – one on the basis of a medical contraindication and the other on the basis of other exceptional circumstances submitted on 16 December 2021. The parties did not provide a copy of the exemption application concerning other exceptional circumstances – however I have gleaned the contents from the response and further submissions of the Appellant below. [7] Executive Director, Clinical Services. In that correspondence, Mr Tait responded to the Appellant's concerns about receiving the COVID-19 vaccination with the following:·although the Appellant advised her treating specialist would not provide a medical certificate in support of the exemption application, due to the extensive list of medical concerns presented by the Appellant, the CHQHHS sought specialist advice from Dr Paul Griffin in good faith; ·on 27 July 2022, the Appellant met with Dr Griffin to discuss her inability to comply with the Directive; ·in a report dated 2 August 2022, Dr Griffin confirmed the Appellant does not have a recognised contraindication to any of the COVID-19 vaccinations and highlighted the Appellant is able to comply with the Directive; and·vaccine hesitancy and conscientious objection, by themselves, are not considered exceptional circumstances. On 23 September 2022, the Appellant responded to the original refusal of her exemption request and outlined further submissions in support of exemption, including:·Dr Griffin did not consider the documented risks and discuss the thousands of adverse effects which can potentially harm or disable a person or even cause death;·the COVID-19 vaccine does not prevent transmission or contracting of the disease;
Ratio Decidendi
Legal Principle Established
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