Sher v State of Queensland (Queensland Health) [2023] QIRC 88

Date: 20 March 2023
Tribunal: Queensland Industrial Relations Commission
Tribunal Member: McLennan IC
Human Rights Act 2019 (Qld) sections: s 25
Rights Considered: Right to privacy
Other Legislation: Industrial Relations Act 2016 (Qld) ss 451, 562B, 562C, 564; Public Sector Act 2022 (Qld) ss 131, 133, 134, 289, 324; Public Service Act 2008 (Qld) s 194; Health Employment Directive No. 12/21 cls 7, 8, 10.
Keywords: COVID-19, Employment

The case concerned an application for review of the decision to decline an exemption for COVID-19 vaccine requirements pursuant to Health Employment Directive No. 12/21. The Appellant submitted, inter alia, that a requirement to provide medical evidence may have unreasonably limited her right to privacy and reputation pursuant to s 25 of the Human Rights Act 2019 (Qld). The Commission considered the original decision maker discharged their obligations under the HR Act and ultimately found that the decision was fair and reasonable.

In respect of human rights, the appellant contended that “requiring her to obtain further medical evidence poses a significant restriction to her right to privacy and reputation and the Department could impose the lesser restrictive option of granting the Appellant a temporary exemption” (at [64]). The original decision maker considered, in making the exemption decision, that any limitation on the appellant’s human rights was justified, having regard to the need to ensure the readiness of the health system in responding to COVID-19 and to protect employees, patients and the community.

The Commission adopted the reasoning in Mocnik & Others v State of Queensland (Queensland Health) [2023] QIRC 058 that the health directive was compatible with human rights and accepted that the appellant’s human rights had been taken into account, and any limitation was reasonable and demonstrably justified.

The Commission concluded that the “the Respondent's consideration of human rights does not render the Exemption Decision unfair or unreasonable. The Appellant's views on human rights simply differ to that of the Respondent” (at [70]).

View the judgment: Sher v State of Queensland (Queensland Health) [2023] QIRC 088