QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
| CITATION: | McPaul v State of Queensland (Queensland Health) [2022] QIRC 175 |
PARTIES: | McPaul, Barry v State of Queensland (Queensland Health) |
CASE NO: | PSA/2022/23 |
PROCEEDING: | Public Service Appeal – Appeal against a fair treatment decision |
| DELIVERED EX TEMPORE ON: | 4 May 2022 |
MEMBER: | Dwyer IC |
| HEARD AT: | Brisbane |
| HEARING DATE: | 4 May 2022 |
ORDER: | 1. The decision appealed against is confirmed. |
CATCHWORDS: | PUBLIC SERVICE – APPEAL - appeal against a fair treatment decision – where appellant is employed as operational service officer – 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 -- where exemption was refused - risk posed to the health and wellbeing of patients, colleagues and other stakeholders - where decision to refuse religious exemption fair and reasonable - where decision reviewing exemption decision confirmed |
| LEGISLATION: | Industrial Relations Act 2016 (Qld) ss 562B, 562C Public Service Act 2008 (Qld) Human Rights Act 2019 (Qld) s 13 |
| CASES: | Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018) |
| APPEARANCES: | Mr B McPaul and Mr D Napier for the appellant Ms R Blakeley, Ms E Watt and Mr C Flemming for the respondent |
Reasons for Decision (ex tempore)
Background
Mr Barry McPaul is employed with Townsville Hospital and Health Service ('the health service') as an Operational Service Officer. He has been employed by the health service since July 2004.
On 11 September 2021, the Health Employment Directive No.12/21 - Employee COVID-19 vaccination requirements ('the directive') was issued. The directive required Mr McPaul to have a vaccination against COVID-19, with the first dose to be administered by 30 September 2021 and the second dose to be administered by 31 October 2021. It is not controversial that the directive applied to Mr McPaul and that Mr McPaul has not complied with the requirements of the directive.
On 25 October 2021, Mr McPaul applied for an exemption from the provisions of the directive requiring him to have a vaccination. Mr McPaul's exemption application expressly nominated genuine religious belief as the singular basis for his application for exemption. Accompanying Mr McPaul's application for exemption was a letter from a pastor confirming that Mr McPaul's religious convictions 'were such that he sought an exemption'.
Mr McPaul also provided an extensive submission of his own, citing (amongst other things) passages from the Bible and explaining his religious objection based on (as he asserts) the practice of 'harvesting tissue from aborted or living foetuses' to produce cell lines for the Pfizer, AstraZeneca and Moderna vaccines.
In addition to this, Mr McPaul's supporting letter also expanded the basis of his application to include references to the '1946 referendum' and the 'Commonwealth Constitution' regarding the prevention of forced medical…
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- AGLC
- McPaul v State of Queensland (Queensland Health) [2022] QIRC 175
- Case
- [2022] QIRC 175
- Decision Date
CaseChat Overview and Summary
The primary legal issue was whether the decision to deny McPaul's exemption was reasonable and fair, considering his religious beliefs and the public health risks posed by COVID-19. McPaul argued that the decision lacked substantive reasons and infringed on his human rights. The tribunal examined whether the reasons provided by Queensland Health adequately supported the decision, and whether these reasons justified the refusal of the exemption in light of the public health context. The court also considered whether the decision appropriately balanced McPaul's religious beliefs against the broader public health imperatives.
The tribunal found that the reasons provided for denying the exemption were both adequate and reasonable. The reasons detailed the risks posed by COVID-19 and the importance of vaccination in protecting public health. The tribunal noted that it was not the role of Queensland Health to accept McPaul's religious beliefs as overriding the public health considerations. The tribunal concluded that the decision to deny the exemption was fair and reasonable, as it appropriately weighed the health risks against McPaul's religious objections. The tribunal also found that McPaul's arguments regarding human rights were not clearly articulated or supported by sufficient evidence.
The tribunal confirmed the decision to deny the exemption, ruling that the refusal was both fair and reasonable. It found that the reasons provided were adequate and that the decision appropriately balanced the public health risks against McPaul's religious beliefs. The tribunal dismissed McPaul's appeal, upholding the original decision.
Orders
Orders of the court
1. The decision appealed against is confirmed.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The health service filed extensive written submissions and the essence of those submissions is largely captured at paragraph 25, where it is stated:In the circumstances, it was reasonably open to the decision-maker to determine Mr McPaul's submissions regarding his religious belief did not justify the approval of an exemption. Ms Hornsby did not dispute that Mr McPaul genuinely held the beliefs he expressed. However, it is not incumbent on Queensland Health or the health service to accept Mr McPaul's personal religious beliefs outweigh the other factors to be considered by Queensland Health and the health service, including the public health risk of COVID-19 and the human rights of Mr McPaul's patients, co-workers, and the broader community. Consideration The first ground of Mr McPaul's appeal asserts that no substantive reasons were given for denying his exemption. From my observation of the decision, and the decision under review, this ground is entirely without foundation. The reasons extensively set out in Ms Kelly's letter fulsomely explain how on balance, the health and safety of the health service employees and patients takes priority over the religious beliefs of Mr McPaul. The reasons set out the dangers to the public health posed by COVID-19 and the safety and efficiency of the vaccines used to mitigate against those dangers. The reasons set out in Ms Kelly's letter are objectively clear and adequate. Indeed, even Mr McPaul now concedes this. The true basis for his objection is simply that he does not agree with the reasons, given that he has instead opted to prefer to believe in various speculative theories about the origins of the virus and the vaccines. No serious attempt was made to offer proof of these theories. On the question of fairness and reasonableness, there is a very significant difference between not receiving adequate reasons and not agreeing with the reasons given. Ms Hornsby reviewed the reasons given by Ms Kelly and considered them appropriate. I consider that Ms Hornsby's conclusion was not only open to her but was also objectively the only conclusion open on such a review. Mr McPaul has never clearly articulated his arguments on the issue of human rights. His exemption application, which was made on religious grounds, vaguely touched on references to the Commonwealth Constitution and the Nuremberg Code in an oblique way, but never really crystallised as a firm ground relied on for exemption by him personally. It was only after Ms Kelly introduced the notion of human rights in her decision that Mr McPaul appears to seize upon that notion and adds it as 'grist for the mill' in his internal review application. But even then, the basis of his submission never gets any clearer than a mere reference to 'several statutes, anti-discriminatory statutes and vast amounts of case law'. At hearing Mr McPaul's representative was invited to explain what this ground of appeal actually meant. The representative had a number of opportunities to do so. The representative had no apparent knowledge of the provisions of the HR Act and was unable to provide any real illumination as to the particulars of the ground. It is not the role of this Commission to cobble together a case for an appellant from diffuse and unclear submissions where the appellant is unable to do so.