Date: 9 March 2022
Court/Tribunal: Queensland Industrial Relations Commission
Judicial Officer/Tribunal Member: McLennan IC
Human Rights Act 2019 (Qld) Sections: ss 13, 15, 17, 48
Rights Considered: Right to recognition and equality before the law; right to protection from torture and cruel, inhuman or degrading treatment.
Other Legislation: Industrial Relations Act 2016 (Qld) ss 451, 562B, 562C, 564; Public Service Act 2008 (Qld) ss 137, 187, 194; Hospital and Health Boards Act 2011 (Qld) s 51B; Workplace Health and Safety Act 2011 (Qld) s 28; Directive 14/20 Discipline cl 4; Directive 16/20 Suspension cl 1, 5; Health Employment Directive No. 12/21 cl 7, 8, 10; Human Resources Policy B70 Employee COVID19 Vaccination Requirements cl 5.
Keywords: Public Law Considerations: Covid-19 Directions

The case concerned an appeal against a decision to suspend the Appellant’s employment as a health service employee without remuneration due to her inability to comply with Health Employment Directive No. 12/21 which required her vaccination against COVID-19. The Appellant argued that “lack of engagement” with the risks of the vaccine and coercion, bullying and discrimination were inconsistent with her human rights. She also contended that her suspension would breach her right to recognition and equality before the law (section 15) and right to protection from torture and cruel, inhuman or degrading treatment (section 17) of the Human Rights Act 2019 (Qld). The Respondent’s submitted that their exemption decision did expressly acknowledge and consider the possible limitation of human rights, though ultimately considered that the suspension was "justified by the need to ensure readiness of the health system in responding to the COVID-19 pandemic, and to protect the lives of employees, patients and the community they serve”: at [59]. The Commission was satisfied that the Respondent had sufficiently considered the Appellant’s human rights in circumstances where the differing views of the Respondent and Appellant did not render the Appellant worthy of an exemption.

Visit the judgment: Graffunder v State of Queensland (Queensland Health) [2022] QIRC 76