Nurse fails in bid to overturn religious exemption refusal

A youth health nurse has lost her bid to overturn a decision by her employer to refuse her application for exemption from a COVID-19 vaccine directive on religious belief grounds.

What happened

The employee in the matter is employed by Queensland Health as a school-based youth health nurse.  On 11 September 2021, Queensland Health issued the Health Employment Directive No. 12/21 – Employee COVID-19 vaccination requirements (Directive).  Under the Directive, the employee was required to receive a COVID-19 vaccination on specified dates unless they were granted an exemption.  Exemptions would be considered where an employee had a recognised medical contraindication, a genuinely held religious belief, or in other exceptional circumstances.

On 26 September 2021, the employee applied for exemption on the basis of a genuinely held religious belief.  She complied with the evidence requirements in filing her exemption application.  On 21 December 2021, the employee was notified that her exemption application had been denied.

The employee appealed against the decision of Queensland Health to decline her exemption application to the Queensland Industrial Relations Commission (QIRC).  The QIRC has jurisdiction to deal with appeals under the Public Service Act 2008 (Qld). Industrial Commissioner John Dwyer of the QIRC dealt with the employee’s appeal.

In the QIRC

The Industrial Commissioner said that the employee identified two grounds for her appeal in her appeal notice which were summarised as:

• There was ‘no recognition’ of her deeply held religious belief; and
• There was no evidence to support the claim that she was a greater risk to patients, colleagues and other key stakeholders if she were unvaccinated.

Industrial Commissioner Dwyer noted that the decision to reject the employee’s application for exemption was not in any way a “criticism or diminishment” of her religious beliefs.  He went on to say those beliefs were “in no way controversial and are shared by many people around the world.”  The employee’s religious beliefs had not been “cast aside without consideration or recognition” the Industrial Commissioner continued:

It is simply that, in these unprecedented times, difficult choices must be taken that require weighing personal beliefs and freedoms against the greater good of the community.

Industrial Commissioner Dwyer observed that the employee had adopted a position in which she considers that her employer bears the onus to prove the reasonableness of the direction for her to be vaccinated.  The Industrial Commissioner said the difficulty for the employee in adopting this position was that the “weight of medical and scientific evidence is against her.” 

The Industrial Commissioner noted that policy and laws regarding regulation and control of the population during the pandemic have been made with medical and scientific data at their foundation before observing:

Whilst medical science has not arrived at exact conclusions of these outcomes, and whilst there are almost certainly anecdotal examples of failings by the vaccines in one setting or another, one thing that is universally clear from the available data is that being vaccinated will at least give a person a chance of avoiding serious (or any) infection that they would not have if unvaccinated.  In simple terms: if there is a chance to avoid infection, there is a chance to avoid transmission.  A chance is not a guarantee; however, it is better than nothing at all.

Industrial Commissioner Dwyer went on to find that the employee had produced no “independent or credible evidence” to support her assertion that she is at no greater risk of transmitting COVID-19 than her vaccinated colleagues.  The employee had not discharged the onus to provide proof to displace the “widely accepted science.”  In concluding, the Industrial Commissioner said:

The global pandemic has produced a number of unusual and difficult challenges for people in their everyday lives.  The unprecedented nature of the pandemic has been fertile ground for confusion, doubt, and fear.  In this instance, [the employee] has had her deeply held religious beliefs tested in a way I am certain she never expected.  I am not without some sympathy for [the employee] in circumstances where she is undoubtably facing an extraordinary dilemma.  

The decision of the employer to refuse a religious exemption was confirmed by the QIRC.