Neville v State of Queensland (Queensland Health) [2022] QIRC 92

Date: 21 March 2022
Court/Tribunal: Queensland Industrial Relations Commission
Judicial Officer/Tribunal Member: Pidgeon IC
Human Rights Act 2019 (Qld) Sections: s 17
Rights Considered: Right to protection from torture and cruel, inhuman or degrading treatment
Other Legislation: Industrial Relations Act 2016 (Qld) ss 562, 562B and 562C; Public Service Act 2008 (Qld) ss 137, 187 and 194.
Keywords: Public Law Considerations: COVID-19 Directions

The case concerned a decision to substantiate an allegation by the Respondent against the Applicant in circumstances where the Applicant was a Queensland Health employee and had contravened a direction to provide evidence of her COVID-19 vaccination. The Decision-Maker considered the impact on human rights in her statement of reasons and ultimately determined that the decision to substantiate the allegation and make a disciplinary finding was fair and reasonable.

The Decision-Maker was required to determine whether to substantiate an allegation that the Applicant, a Queensland Health employee, had contravened a direction to provide evidence of COVID-19 vaccination to the Respondent in circumstances where a disciplinary finding may be warranted.

In determining whether the allegation was substantiated, the Decision-Maker considered the potential impact of the decision on human rights, including the right of a person not to be subject to medical treatment without the person's full, free and informed consent, in accordance with section 17 of the Human Rights Act 2019 (Qld). It was considered that while the decision did not itself compel a person to be vaccinated, it did impose consequences upon individuals who were not vaccinated where there was not good reason. The decision was justified to the extent the decision impacted human rights, as the purpose of the requirement in the Health Employment Directive and Policy includes protecting staff and patients from infection with COVID-19 and the maintenance of a proper and efficient health system in a time of a global pandemic, in circumstances where there was no other less restrictive yet effective way to achieve this purpose.

The Commission was unable to identify anything in the Applicant’s submissions that would lead to a determination that the decision to substantiate the allegation and make a disciplinary finding was not fair and reasonable.

Visit the judgment: Neville v State of Queensland (Queensland Health) [2022] QIRC 92