Vaccine dismissals not unfair
The Queensland Industrial Relations Commission recently issued another decision in relation to applications for reinstatement brought by former Queensland Health employees who refused to receive COVID-19 vaccinations.
In early 2022, a number of applications for reinstatement were filed by former Queensland Health employees who were represented by IR Claims and The Red Union. Due to the commonality in the issues or grounds for application, it was decided the matters would be heard together, with ‘common issues’ questions to be determined first. The Common Issues included:
- Is HED 12/21 a health employee directive, about "conditions of employment", within the meaning of section 51A of the Hospital and Health Boards Act 2011?
- Is HED 12/21 inconsistent with the Anti-Discrimination Act 1991 and/or Human Rights Act 2019?
- Did Queensland Health have an obligation under Part 5 of the Work Health and Safety Act 2011 or section 51AA of the Hospital and Health Boards Act 2011 to consult directly with the employees individually, prior to implementing the HED 12/21?
- Did Queensland Health have an obligation to consult with the employees’ industrial representative (which is not registered as an employee organisation) prior to implementing the HED 12/21?
- Did Queensland Health have an obligation to provide a risk assessment for each business unit to an individual employee on request?
- If an employee had commenced a dispute with Queensland Health about HED 12/21 under clause 7 of the Dispute Resolution Clause in the Nurses and Midwives (Queensland Health) Award - State 2015, should Queensland Health have held any decision regarding an employee’s employment in abeyance until the dispute was resolved?
A hearing of the Common Issues occurred before Vice President O’Connor on 12 December 2022. His Honour delivered his decision on 22 February 2023, finding:
- HED 12/21 is a health employment directive about 'conditions of employment' within the meaning of section 51A of the Hospital and Health Boards Act 2021. HED 12/21 mandates that it is a condition of employment to be vaccinated, unless an exemption is granted.
- HED 12/21 is not inconsistent with the Anti-Discrimination Act 1991 because although HED 12/21 imposes a term, it is not unreasonable. In reaching this view, VP O’Connor accepted the evidence of Professor Eisen and Professor Griffin that all available COVID-19 vaccines are effective at preventing symptomatic infection and reducing the risk of serious illness or death; any adverse effects are usually mild with a low probability of developing serious complications; vaccination is the most effective and efficient control available to combat the risks posed by COVID-19 and COVID-19 poses a significant risk in the health care setting.
- HED 12/21 is not inconsistent with the Human Rights Act 2019 because (again accepting the expert evidence) HED 12/21 was an important health measure introduced to provide protection to the community from serious and widespread disease. The limit imposed by the issuing of HED 12/21 was a reasonable and justifiable limit and one which was demonstrably justified by reference to section 13 of the HR Act, taking into account the balancing interests of society, including the public interest.
- Queensland Health did not have an obligation to consult directly with employees individually prior to implementing HED 12/21, noting the consultation which occurred with unions with total collective coverage of the workforce.
- The Hospital and Health Boards Act 2011 did not require Queensland Health to consult with the employees’ representative because NPAQ is not a registered organisation and not an employee organisation for the purpose of the Hospital and Health Board Act 2011.
- There was no obligation imposed on Queensland Health under the Work Health and Safety Act 2011 to provide a risk assessment for each business unit to individual employees on request after HED 12/21 was implemented. The employees did not identify the exact nature of the ‘risk assessment’ they said should have been provided by the employer.
- As conceded by the applicants’ representative, clause 7 of the Dispute Resolution Clause in the Nurses and Midwives (Queensland Health) Award - State 2015 does not require a decision to be held in abeyance (nor the status quo to continue) where there is a genuine safety issue.
VP O’Connor accepted that none of the Common Issues made the Applicants’ dismissals unfair.
The decision is an important one as it provides some finality on matters repeatedly raised in the Queensland Industrial Relations Commission by employees who declined to be vaccinated against COVID-19. Reasons commonly cited by employees for failing to comply with a requirement to be vaccinated include an alleged lack of individual consultation, and the failure to provide a risk assessment. VP O’Connor confirms these matters do not make an employee’s dismissal unfair meaning these reasons for failing to comply with a requirement to be vaccinated will not amount to a reasonable excuse. The decision gives agencies some confidence in proceeding to dismiss employees who fail to be vaccinated, in appropriate cases.
Published: 2 March 2023
Author: Senior Principal Lawyer, Nicola Smith