De Bruyns v State of Queensland (Queensland Health) [2024] QIRC 30

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: PARTIES: CASE NO.: PROCEEDING: DELIVERED ON: MEMBER: HEARD AT: DATES OF WRITTEN SUBMISSIONS: ORDERS: CATCHWORDS: De Bruyns v State of Queensland (Queensland Health) [2024] QIRC 30 De Bruyns, Vanessa (Appellant) v State of Queensland (Queensland Health) (Respondent) PSA/2022/642 Public Service Appeal – appeal against a suspension without pay decision 9 February 2024 Butler IC On the papers Respondent's written submissions filed 13 December 2023 and Appellant's written submissions filed 5 January 2024. That pursuant to section 562A of the Industrial Relations Act 2016 (Qld), the Commission will not hear the appeal. PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SECTOR APPEAL - where a health service employee failed to comply with COVID- 19 vaccination requirements – where the health service employee sought an exemption from compliance – consideration of whether the exemption decision was affected by jurisdictional error and if so whether that affected a decision- maker's ability to form a reasonable belief that the employee was liable to disciplinary action – where the employee was suspended without remuneration – where the employee filed an appeal that wrongly characterised the suspension decision as a disciplinary decision – whether the notice of appeal ought to be taken as being in respect of the -- 1 of 24 -- 2 suspension decision – where the notice of appeal had been filed under now-repealed legislation – consideration of transitional provisions – where the appeal raised issues that had been well-settled in other proceedings – whether the Commission should exercise its discretion to refrain from hearing the appeal – whether the employee had, after being given the opportunity to make written submissions, made out that she had an arguable case – discretion exercised LEGISLATION AND OTHER INSTRUMENTS: Health Employment Directive No. 12/21 - Employee COVID-19 vaccination requirements Public Service Commission Directive 11/20 Public Service Commission Suspension Directive 16/20 Workers in a healthcare setting (COVID-19 Vaccination Requirements), Chief Health Officer Direction Public Service Act 2008, s 137, s 187, s 194 and s 195 Public Sector Act 2022, s 394 CASES: Brasell-Dellow & Ors v State of Queensland (Queensland Police Service) & Ors [2021] QIRC 356 Campbell v State of Queensland (Department of Justice and Attorney-General) [2019] ICQ 18 Harris v State of Queensland (Queensland Health) [2023] QIRC 342 Higgins v State of Queensland (Queensland Health) [2022] QIRC 030 Mackenzie v State of Queensland (Queensland Health) [2023] QIRC 121 Mocnik & Ors v State of Queensland [2023] QIRC 58 Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203; (2020) 305 IR 311 Reasons for Decision [1] The question presently before the Commission is whether it should decline to hear the appeal pursuant to subsection 562A(3) of the Industrial Relations Act 2016 ('the Industrial Relations Act'). -- 2 of 24 -- 3 [2] Having considered the parties' submissions and the material before the Commission in this matter, the Commission declines to hear Ms De Bruyns' appeal for the reasons below. [3] In making this decision, and the findings set out in it, the Commission does not seek to diminish Ms De Bruyns' genuine concerns or beliefs. Ms De Bruyns has been constructive and responsive in the course of the Commission's consideration of the exercise of the discretion in subsection 562A(3) of the Industrial Relations Act, as has the respondent. Preliminary matters [4] This is a public service appeal that was brought on 30 June 2022 pursuant to then Chapter 7, Part 1 of the now-repealed Public Service Act 2008 ('the Public Service Act'). [5] The Public Service Act has been repealed since the appeal was filed. Chapter 9 of the Public Sector Act 2022 ('the Public Sector Act') sets out repeal, savings, and transitional provisions. By operation of section 394 of the Public Sector Act, although this appeal was brought in reliance upon section 194 of the Public Service Act, it must be heard and decided under Chapter 3, Part 10 of the Public Sector Act. [6] That Part in turn requires this appeal to be heard under Chapter 11 of the Industrial Relations Act. Appeal of a suspension decision [7] The notice of appeal indicated the type of decision being appealed was a discipline decision. At the time, section 194 of the Public Service Act set out the type of decisions that could be appealed. Section 194 relevantly provided that an appeal may be made against, inter alia, a decision under a disciplinary law to discipline a person, and a decision to suspend a public service employee without entitlement to normal remuneration. As the respondent points out in its submissions, the decision under appeal was not a disciplinary decision. The respondent and Ms De Bruyns both acknowledge in their submissions that this is an appeal of a suspension decision.1 [8] The parties have agreed to the Commission treating the within proceedings as an appeal of the suspension decision. I thank the parties for their constructive approach to this issue. [9] To the extent it is necessary to do so I waive the error or defect and will treat this appeal as though it was brought as an appeal of a suspension decision within the meaning of that term for the purposes of s 194 of the Public Service Act as in force at the time. I will take references to a disciplinary decision or action to be references to the suspension decision, 1 Respondent's submissions of 13 December 2023, paragraphs 2 and 13. Appellant's submissions of 5 January 2024, paragraph 3. -- 3 of 24 -- 4 and/or the forming of the requisite reasonable belief as to Ms De Bruyns' liability for disciplinary action, as context requires. Not an appeal of the earlier exemption decision [10] Though it is the letter of 16 June 2022 that was annexed to the notice of appeal, a substantial amount of the material in the notice of appeal goes to an earlier decision, specifically, a decision not to grant an exemption from the obligation to be vaccinated. That decision was made on 6 January 2022, confirmed on internal review on 21 February 2022, and not, on the material before the Commission, the subject of a public service appeal commenced in time or at all. [11] As to whether these current proceedings should be treated as also being an appeal of the exemption decision, Ms De Bruyns provided a signed but not filed notice of appeal, dated 15 March 2022, in relation to the exemption decision. That document says she received the exemption decision on 25 February (though the letter itself is dated 21 February).2 [12] She has also provided an email from her then agent of 16 March 2022 that stated: I am writing in regards to your exemption denial form – with the attached letter inviting you to complete a public service appeal filing within 21 days. You filled out the Exemption Denied form on the day that the filing was due. As such there was not adequate time to act on your behalf to make this filing. The QIRC has indicated that they are not accepting late submissions. Thankyou3 [13] The former agent is not involved in these proceedings and these documents have not been tested. However, taking them on their face, they appear to assist Ms De Bruyns for various reasons. [14] Nonetheless, there are significant factors militating against exercising the power to allow the within proceedings to be treated as an appeal of the exemption decision in addition to the suspension decision. Those include: (a) the exemption decision and the internal review of it were not attached to the notice of appeal; (b) the notice of appeal in the current proceedings was not filed within time to appeal the exemption decision and/or the internal review of it; 2 Exhibit 10. 3 Exhibit 11. -- 4 of 24 -- 5 (c) no party, despite criticisms of the exemption decision and/or internal review, has in submissions sought to characterise this present appeal as being against the exemption decision; (d) Ms De Bruyns was clearly advised of the appeal timeframe on the face of the letter advising her of the outcome of her internal review; (e) the notice of appeal form, which she filled out, tells her how to file it, tells her the time period, and gives an option for seeking an extension for filing; (f) it has been almost two years since the internal review decision was provided to Ms De Bruyns; and (g) importantly, the grounds of the appeal as set out in the signed but not filed notice of appeal of 15 March 2022 are all matters that have been well ventilated in, and well settled by, the Commission and so it appears the appeal Ms De Bruyns had intended to file would have had no reasonable prospects of success. [15] In seeking their attitudes to this issue, the Commission drew the parties' attention to Higgins v State of Queensland (Queensland Health).4 In that matter, the Commission took a public service appeal made in respect of a different decision to also include an appeal against a decision not to grant an exemption, noting that the appellant in that case was unrepresented, the appeal was made within time for the decision in relation to the exemption, and the respondent had made submissions about why it contended the exemption decision had been fair and reasonable. That decision is distinguishable having regard to the matters set out above. [16] This appeal will not be taken as including an appeal in relation to the exemption decision. The basis for the appeal [17] Having regard to the matters set out above, the decision appealed against was the decision to suspend Ms De Bruyns from duty without remuneration ("the suspension decision"). [18] Mr Warren Campbell, Acting Director HR Strategy, Sunshine Coast Hospital and Health Service made the decision and communicated it to Ms De Bruyns by letter dated 16 June 2022. [19] The notice of appeal was filed on 30 June 2022, within the limitation period. Ms De Bruyns had standing to appeal. The decision to suspend Ms De Bruyns from duty without remuneration was appealable pursuant to section 194 of the Public Service Act. 4 [2022] QIRC 030. -- 5 of 24 -- 6 [20] The stated purpose of an appeal such as the present one is to decide whether the decision appealed against was fair and reasonable.5 [21] If the appeal is heard and determined, the issue for determination will be whether the decision appealed against was fair and reasonable.6 [22] However, as stated at the outset, the Commission is first deciding whether it should decline to hear the appeal pursuant to subsection 562A(3) of the Industrial Relations Act. [23] Sub-section 562A(3) of the Industrial Relations Act relevantly provides that the Commission may decide it will not hear a public service appeal against a decision if it reasonably believes, after asking the Appellant to establish by oral or written submissions that the Appellant has an arguable case for the appeal, that the appeal is frivolous or vexatious, or is misconceived or lacks substance, or should not be heard for another compelling reason. Facts and circumstances [24] At the relevant times Ms De Bruyns was employed by State of Queensland as a Clinical Nurse in Sunshine Coast Mental Health and Addiction Services which is part of the Sunshine Coast Hospital and Health Service ('the SCHHS'). Ms De Bruyns was employed through Queensland Health ('the Department') and was a health service employee. [25] The then Chief Executive of the Department Dr John Wakefield approved Health Employment Directive No. 12/21 - Employee COVID-19 vaccination requirements ('HED 12/21') with effect from 11 September 2021. [26] HED 12/21 provided for mandatory vaccination requirements to which Ms De Bruyns was subject. It was re-issued shortly after it was first issued, relevantly to include circumstances for exemptions. [27] Clause 10 of (the re-issued) HED 12/21 provided that an employee who was required to be vaccinated could apply for and be granted an exemption from the requirement to be vaccinated, for the duration of the exemption granted, in circumstances where: (a) an existing employee had a recognised medical contraindication or had a genuinely held religious belief; or (b) where other exceptional circumstances existed. [28] It was uncontested between the parties that on 28 September 2021, the Chief Executive of the Department issued an email putting all staff on notice that if they remained 5 Industrial Relations Act 2016 (Qld) s 562B(3). 6 Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203; (2020) 305 IR 311, [4]-[7]. -- 6 of 24 -- 7 unvaccinated after 31 October 2021 without an approved exemption they would be considered as failing to comply with, inter alia, HED 12/21, and may be subject to discipline. [29] On 29 September 2021 Dr Wakefield, the then Chief Executive of the Department, issued an instrument of delegation and authorisation allowing for applications for exemption to be made and determined.7 [30] On 7 October 2021, Ms De Bruyns applied for an exemption to the mandatory vaccine requirements on the grounds of "other exceptional circumstances" ("the exemption application").8 [31] In response to the form's instruction to "briefly detail the extenuating circumstances which preclude your meeting the COVID-19 vaccination requirements," Ms De Bruyns wrote: As per previous correspondence, I have a history of significant potentially life threatening drug adverse reactions. Because of my history I do not take any medication and when a medical procedure is required I access psychological support. I am currently engaged with a psychologist through EAP to address my anxiety relating to the getting the vaccine and the current mandate. I am seeking exemption as I cannot fulfill Queensland Health's legislative obligations and industrial arrangements at this point. [32] The 'previous correspondence' was not particularised. The respondent has stated it believes this to have been a reference to an earlier exemption application ("the earlier exemption application"), dated 30 September 2021, in which the exceptional circumstances ground was described as follows: I have past significant life threatening adverse reactions to different classes of medications. I am seeking further medical advice and psychological counselling at this stage before making a decision regarding vaccination. I have engaged EAS support.9 [33] Attached to that document of 30 September 2021 was a letter dated 29 September 2021 addressed to the acting nurse unit manager, alerting him that Ms De Bruyns intended to apply for an exemption.10 That attached letter had nothing to say about the exceptional circumstances upon which Ms De Bruyns relied; instead, it set out assertions in relation to various matters of widespread application (in relation to consultation, human rights, and rights under the Industrial Relations Act). 7 Annexed to the notice of appeal. 8 Exhibit 2. 9 Exhibit 1. 10 Exhibit 1. -- 7 of 24 -- 8 [34] No material has been put before the Commission to indicate the fate of that earlier exemption application of 30 September 2021. If made, it was superseded by the application of 7 October 2021 in any event. [35] On 12 October 2021 Dr Wakefield issued an instrument of delegation, sub-delegation, authorisation, and sub-authorisation.11 [36] It was uncontested between the parties that on 25 October 2021 the Chief Executive issued a direction to all staff via email that there could be no employee working in a facility where care is provided without being fully vaccinated. [37] On 28 October 2021 Dr Peter Gillies, Chief Executive of SCHHS, issued an instrument of sub-delegation.12 [38] On 10 November 2021, pursuant to section 362B of the Public Health Act 2005, the Chief Health Officer (CHO) issued the Workers in a healthcare setting (COVID-19 Vaccination Requirements) Direction ('CHO Direction'). It remained in place, albeit in different iterations, until the revocation of its successor direction Workers in a healthcare setting (COVID-19 Vaccination Requirements) Direction (No. 4) on 2 September 2022. At all material times from 10 November 2021, that direction required that a worker in healthcare must not enter, work in, or provide services in a healthcare setting unless the worker in healthcare complies with the COVID-19 vaccination requirements. [39] By letter of 6 January 2022, Mr Warren Campbell, on behalf of SCHHS, advised Ms De Bruyns of his decision in relation to her exemption application ('the exemption decision'), informing her that an exemption had not been granted.13 As to evidence, Mr Campbell's letter stated: Relevant material on which the findings on material questions of fact were based included: 1. The Directive/policy; 2. Your application for an exemption; and 3. The supporting documentation you provided. [40] The reference to 'supporting documentation' is said by the respondent to have been a reference to: (a) the earlier application for exemption dated 30 September;14 11 Exhibit 3. 12 Exhibit 4. 13 Exhibit 7. 14 Exhibit 1. -- 8 of 24 -- 9 (b) the letter attached to it dated 29 September;15 and (c) a letter from Supportah Australia Pty Ltd t/a Industrial Relations Claims dated 22 November 2022.16 [41] The letter from Industrial Relations Claims sought to, inter alia, commence a grievance on behalf of various clients collectively, relying upon various concerns. It is common ground that Ms De Bruyns was among those on whose behalf the grievance was brought. The content of that letter does not go to matters specific to Ms De Bruyns that would support her exceptional circumstances assertion. [42] There was no evidence before Mr Campbell to support Ms De Bruyns' assertions regarding her statement that she had a history of significant potentially life-threatening drug adverse reactions, or to support her need for psychological assistance. [43] By email correspondence of 7 February 2022, Ms De Bruyns requested an internal review of the decision to decline her application for an exemption. Her correspondence was brief and as follows: Review request Warren Campbell In response to your letter dated 06/01/22 I request a review of my application regarding exemption. This note also serves as a reminder that I am being represented by Red Union and am aware that a letter has already been submitted on my behalf about this application. Kind regards Vanessa De Bruyns.17 [44] By letter of 21 February 2022 from Mr Andrew Leggate on behalf of the SCHHS, the outcome of the internal review ('the internal review decision') was conveyed to Ms De Bruyns.18 Ms De Bruyns' material suggests she received it on 25 February 2022. The letter advised Ms De Bruyns that the exemption decision was confirmed. [45] In relation to the material before him for the purposes of the internal review, Mr Leggate's letter relevantly stated: Actions taken to review the decision made by the delegate I have carefully and fully considered the following documentation and information: • your exemption application form; 15 Exhibit 1. 16 Exhibit 5. 17 Exhibit 8. 18 Exhibit 9. -- 9 of 24 -- 10 • supporting documentation you provided; • the mandatory vaccination exemption outcome decision by the delegate, dated 6 January 2022; • Public Service Commission (PSC) Directive 11/20 - Individual Employee Grievances (PSC Directive 11/20); • Individual Employee Grievances Human Resources (HR) Policy E12; • HR Sub-Delegations Manual s24.2; and • Instrument of Sub-Delegation - Exemption to COVID19 requirements (emphasis added; attachment references omitted). [46] The supporting documentation was the material that had been before the decision-maker at first instance. Again, there was no medical or other evidence to support Ms De Bruyns' assertions regarding her medical history or need for psychological assistance. [47] In his letter conveying the internal review decision, Mr Leggate put Ms De Bruyns on notice that she could file a public service appeal with the Industrial Registry within 21 days. As discussed above, she did not do so. [48] The material that Ms De Bruyns has placed before the Commission suggests an outcome of the grievance commenced by Industrial Relations Claims was provided to that organisation on 12 April 2022. Ms De Bruyns has not put that outcome before the Commission. The respondent, on the other hand, says the grievance was finalised in February 2022. Given its collective nature neither the grievance nor content of the related correspondence assists in relation to Ms De Bruyns claim of exceptional circumstances. The Commission infers from this that it is either irrelevant to or would not assist her submission that this matter should proceed to hearing and determination. [49] Ms De Bruyns' notice of appeal also suggests that on 18 April 2022, Ms De Bruyns and/or her representatives complained to the Commission Chief Executive, Public Service Commission, about the exemption decision.19 This complaint is not before the Commission. Ms De Bruyns has indicated she does not have a copy, and the Department's representative has indicated it also does not have a copy. [50] Plainly, Ms De Bruyns did not obtain an exemption from the requirement to be vaccinated. [51] It is uncontested as between the parties that Ms De Bruyns did not get the relevant vaccinations. 19 Notice of appeal, schedule A-2, paragraph 7.20. -- 10 of 24 -- 11 [52] On 24 May 2022, the SCHHS wrote to Ms De Bruyns inviting her to show cause as to why she should not be suspended without normal remuneration pursuant to subsection 137(4) of the Public Service Act ('the show cause letter').20 [53] The show cause letter allowed a period of seven days for Ms De Bruyns to provide a response. [54] Ms De Bruyns' response to the show cause letter was dated 10 June 2022.21 In her response Ms De Bruyns did not contest the validity of the decision to decline her application for exemption, and nor did she refer to her previous contention that exceptional circumstances precluded her from complying with the vaccination directive. [55] The material suggests that in or around June 2022, Ms De Bruyns or her representatives purported to escalate her previously commenced grievance to become a Stage 3 grievance. No correspondence regarding this escalation is before the Commission. I infer from this that Ms De Bruyns considers it is either not relevant to this matter or does not assist her. [56] On 16 June 2022, the SCHHS, by letter from Mr Campbell, issued its decision to suspend Ms De Bruyns without remuneration ("the suspension decision").22 In that letter Mr Campbell: (a) advised Ms De Bruyns that because she had not received the required number of doses of a COVID-19 vaccine, he was satisfied reasonable grounds for discipline had been established pursuant to section 187 of the Public Service Act; (b) determined that, based on the information before him, and in consideration of the nature of the discipline to which Ms De Bruyns was liable, Ms De Bruyns should be suspended from duty without remuneration pursuant to subsection 137(4) of the Act; (c) set out matters that had been considered in reaching the decision; and (d) put Ms De Bruyns on notice that if she believed the decision to suspend her without normal remuneration was unfair and unreasonable, she could take an appeal under chapter 7 of the Act, within 21 calendar days from her receipt of the decision to the Queensland Industrial Relations Commission. [57] Ms De Bruyns then commenced the within proceedings by notice of appeal on 30 June 2022. 20 Respondent's submissions filed 13 December 2023, attachment 1. 21 Respondent's submissions filed 13 December 2023, attachment 2. 22 Notice of appeal, attachment. -- 11 of 24 -- 12 Notice of Appeal [58] The notice of appeal set out the grounds relied upon in schedule A-1. In summary, and with my paraphrasing, they were: (a) HED 12/21 and the associated direction to be vaccinated breached Ms De Bruyns' employment contract and was inconsistent with the Hospital and Health Boards Act 2011; (b) the direction to be vaccinated was not a lawful and reasonable direction; (c) no-one had made a valid determination of Ms De Bruyns' application for exemption; (d) it was not open to Mr Campbell to form the reasonable belief of liability for disciplinary action needed to enliven the power to suspend without remuneration; (e) the forming of the reasonable belief and/or the decision to suspend: (i) was unfair and unreasonable; (ii) was incompatible with Ms De Bruyns' human rights; (iii) amounted to direct and indirect discrimination on the grounds of political activity and beliefs and trade union activity; (iv) amounted to adverse action within the meaning of section 282 of the Industrial Relations Act; (v) arose from the respondent excluding (impeding) the appellant from having the exemption decision reviewed; (vi) pre-empted a Public Service Commission review of the exemption decision; and (vii) had unfairly not been withdrawn or stayed despite three separate requests to pause the process. [59] The grounds refer to Schedule A-2 to the notice of appeal, which is headed "Background of events leading up to the purported grounds for discipline and then any disciplinary decision or action." In addition to providing background information Schedule A-2 appears to raise additional grounds. That schedule is too long to be set out here. [60] Schedule B to the notice of appeal sets out the relief sought including, inter alia, an order setting aside the decision and substituting a different decision. -- 12 of 24 -- 13 [61] The notice of appeal raises many and varied issues. The Commission will consider them each briefly in turn, in order to inform the decision in relation to the discretion to refrain from hearing the appeal. [62] The following are well-established: (a) HED12/21 was a lawful and reasonable decision, as is the requirement to be vaccinated against COVID-19.23 (b) HED12/21 was not inconsistent with the HHBA,24 the Human Rights Act,25 or the Anti-Discrimination Act.26 (c) There had not been a failure to consult in breach of the Work Health and Safety Act.27 [63] The following matters, also raised in the appeal notice and its schedules, need not be further considered for the following reasons: (a) The issue of adverse action in contravention of the Industrial Relations Act but has not been pressed in submissions to date. There is no evidence to indicate that the decision to suspend was for any reason other than that stated, i.e., because Ms De Bruyns was in breach of a lawful and reasonable direction without reasonable excuse. (b) Ms De Bruyns refers to judicial review proceedings in the notice of appeal but not in her submissions in relation to the proposed exercise of the discretion under subsection 562A(3) of the Industrial Relations Act. There is no evidence that she was a party to such proceedings, and nor does an argument that no decision could be made on her exemption application that pre-empted the outcome of a judicial review application have prospects of success.28 (c) Similarly, the question of whether the suspension decision pre-empts a review sought from the Commission Chief Executive, Public Service Commission, lodged 18 April 2022 was raised in the notice of appeal but not in Ms De Bruyns' submissions. As indicated above, there is no material before the Commission in 23 Mocnik & Ors v State of Queensland [2023] QIRC 58 ('Mocnik & Ors v State of Queensland'). 24 Mocnik & Ors v State of Queensland [2023] QIRC 58. 25 Mocnik & Ors v State of Queensland, applied in Mackenzie v State of Queensland (Queensland Health) [2023] QIRC 121 ('Mackenzie v State of Queensland (Queensland Health)'). 26 Mocnik & Ors v State of Queensland [2023] QIRC 58, applied in Mackenzie v State of Queensland (Queensland Health) [2023] QIRC 121. 27 Brasell-Dellow & Ors v State of Queensland (Queensland Police Service) & Ors [2021] QIRC 356; applied in Mocnik & Ors v State of Queensland. 28 Harris v State of Queensland (Queensland Health) [2023] QIRC 342. -- 13 of 24 -- 14 relation to this review. Each party has said they do not have a copy of any such review. It is unnecessary to consider this issue further. (d) Ms De Bruyns says she had made three separate requests to "pause the process" since 11 April 2022. She does not point to any requirement, on the respondent's part, to do so. (e) The various matters raised going to the fairness or reasonableness of the exemption decision, and the internal review of it, are not the subject of this appeal. [64] The notice of appeal raises the issue of whether the decision not to grant the exemption was affected by jurisdictional error. This issue is considered below. Directions [65] On 23 November 2023 the Commission issued a Directions Order inviting the parties to file written submissions of no more than five pages in length addressing why the Commission should decide not to hear the appeal pursuant to subsection 562A(3) of the Industrial Relations Act, and that the matter be heard on the papers unless otherwise ordered. The respondent's submissions [66] The respondent filed written submissions on 13 December 2023. It submits that the Commission should exercise its discretion under subsection 562A(3)(b) of the Industrial Relations Act on the basis that it would not be in the public interest to hear the appeal, because the matters raised in Ms De Bruyns' Appeal have previously been heard and determined by the Commission or are otherwise misconceived or lacking in substance. [67] It submits that: (a) Ms De Bruyns was required to provide evidence of having received two doses of a COVID-19 vaccine by 31 October 2021; (b) at the time of the decision to suspend Ms De Bruyns from duty without pay, she was unable to attend her usual workplace or perform her usual duties because she was not vaccinated against COVID-19; (c) the Chief Health Officer Direction Workers in a healthcare setting (COVID-19 Vaccination Requirements) made it unlawful for Ms De Bruyns to attend work, in circumstances where she did not have a medical contraindication or other reason for not being vaccinated; and (d) Ms De Bruyns could not enter the Nambour General Hospital while she was unvaccinated. Ms De Bruyns, through her own actions and choices, made herself unavailable to work; -- 14 of 24 -- 15 (e) neither Queensland Health nor SCHHS was required to provide alternative duties for Ms De Bruyns. [68] The respondent submits that Ms De Bruyns applied for but was not granted an exemption, and sets out the progress of that application and the internal review of it. [69] It submits that: (a) Subparagraph 562A(3)(b) of the Industrial Relations Act provides the Commission may decide it will not hear a public service appeal against a decision if the Commission reasonable believes the appeal is either frivolous or vexatious, is misconceived or lacks substance, or should not be heard for another compelling reason. (b) With respect to Ms De Bruyns' arguments that the Direction was not a lawful and reasonable direction, these matters had been extensively considered and determined in matters before the Commission including Mocnik & Others v State of Queensland (Queensland Health).29 None of the matters raised in Ms De Bruyns' Appeal have been found in favour of employees or former employees. (c) The outcome of Ms De Bruyns' Appeal would inevitably follow the many previous decisions issued by the Commission. (d) Ms De Bruyns had not made a single unique argument in support of her Appeal. [70] The respondent's submissions as drafted, at paragraph 13, also raised the point in relation to the nature of the decision under appeal. As indicated above the respondent has since agreed to the proceedings being taken as being an appeal of the suspension decision. [71] In its submissions the respondent relied upon Winter v State of Queensland (Department of Education)30, Graffunder v State of Queensland (Queensland Health),31 Mocnik & Ors v State of Queensland,32 and Tilley v State of Queensland (Queensland Health).33 Ms De Bruyns's submissions [72] Ms De Bruyns filed submissions in response on 5 January 2024. Ms De Bruyns submitted that the Commission should uphold the appeal. She submitted that: (a) HED12/21 applied to all Queensland Health Employees; 29 [2023] QIRC 58. 30 [2022] QIRC 350. 31 [2022] QIRC 076. 32 [2023] QIRC 58. 33 [2023] QIRC 262. -- 15 of 24 -- 16 (b) exemptions were available only where the employee had a recognised medical contraindication; where an existing employee had a genuinely held religious belief; or where another exceptional circumstance existed; (c) she had applied for an exemption to the mandatory vaccine requirements on the grounds of 'other exceptional circumstances'; (d) vaccine hesitancy and conscientious objection were not considered exceptional circumstances, and some other extenuating circumstances must exist. She believed that other extenuating circumstances existed in her case. [73] Ms De Bruyns submitted that: (a) her application for exemption was on the grounds of exceptional circumstances; (b) she did not make an exemption application on the grounds of vaccine contraindications; (c) yet, the letter of 6 January 2022 advised her that her exemption application was denied because her conditions were not recognised as medical contraindications; (d) this was confirmed by internal review on 21 February 2022; and (e) she was at a loss as to how the decision to suspend her was made on the assumption that she did not have a recognised medical contraindication when her medical history was not known to the decision maker, and nor did she apply for exemption on those grounds. [74] Ms De Bruyns submitted that the reason she had not applied for exemption on the ground of vaccine contraindications was that her immunologist at Queensland Health had informed her that no testing existed to confirm whether she was allergic to the available COVID-19 vaccines, and that it had been suggested that she delay vaccination until the Novavax became available. She also said this proved to have the same reactions as the currently available vaccines. [75] As to other extenuating circumstances, relevant to the ground of exceptional circumstances for exemption, Ms De Bruyns submitted: Other Extenuating Circumstances 5. I have a history of life-threatening, drug-adverse reactions and needed to seek psychological assistance to address my hesitancy to take a drug that I was unfamiliar with. 6. My allergic reaction manifestations are varied and in response to several causative factors including, but not limited to, medication, scents, creams, food additives and preservatives, and I am incredibly cautious about what I ingest, inject, inhale, wear, embrocate and wipe with. -- 16 of 24 -- 17 7 In the past, I have had reactions that included an infrequent reaction called Stevens Johnsons syndrome (SJS) and blood clots. My research into the vaccine's safety showed evidence that this was indeed a reaction to the available Covid 19 vaccine, as were blood clots. 8. As per the recommendations of Queensland Health, I engaged with the Employee Assistance Scheme (EAS) to allay my fears. It is a well-documented fact that drug or vaccine hesitancy or avoidance behaviour and anxiety akin to Post traumatic stress disorder (PTSD) follows a life- threatening drug reaction such as SJS. [76] Ms De Bruyns also attached two single-page documents relating to Stevens-Johnson syndrome (SJS). They were general documents, not specific to Ms De Bruyns. [77] As to the possibility of alternative duties, Ms De Bruyns submitted that: (a) her role predominantly was phone consultation, as an intake clinician, and counselling; (b) if a risk management review had been adequately done, phone consultation and working from home or a designated working space would have been a viable option; (c) no other duties had been considered as required by the Public Service Commission Suspension Directive 16/20 as in force at the time. [78] Ms De Bruyns indicated she was making a plea for her livelihood, profession, health, and mental well-being. She submitted she has been financially stretched and has had to draw from her superannuation to keep up her mortgage payments and everyday expenses. [79] The respondent did not file submissions in reply. Consideration [80] As stated above the question presently before the Commission is whether it should decline to hear the appeal pursuant to subsection 562A(3) of the Industrial Relations Act. Subsection 562A(3) [81] Subsection 562A(3) relevantly provides that: (3) The commission may decide it will not hear a public service appeal against a decision if— … (b) the commission reasonably believes, after asking Ms De Bruyns to establish by oral or written submissions that Ms De Bruyns has an arguable case for the appeal, that the appeal— … (ii) is misconceived or lacks substance; or (iii) should not be heard for another compelling reason. -- 17 of 24 -- 18 [82] That provision confers a discretion on the Commission that is similar (though not identical) to the more general discretion in section 541 to dismiss or refrain from hearing a cause. In Mackenzie v State of Queensland (Queensland Health)34 the Full Bench considered that discretion and noted it was to be "employed with due circumspection on a proper consideration of relevant materials," citing Campbell v State of Queensland (Department of Justice and Attorney-General).35 In the latter decision Martin J (as he then was) had stated that a "proper consideration" could not be made where the case for the respondent to the application to dismiss was simply taken at its highest. This general approach can be considered to apply, with necessary adaptation, to considering whether to exercise the discretion to refrain from hearing provided by subsection 562A(3). The Commission as constituted will not take Ms De Bruyns' case at its highest; it is for her to advance her case. [83] In this matter, as in other proceedings under Chapter 11, the Commission is not bound by the rules of evidence, may inform itself in the way it considers appropriate, and is to be guided by equity, good conscience and the substantial merits of the case having regard to the interests of the persons immediately concerned and the community as a whole. Arguable case [84] The Commission as constituted has thoroughly considered the appeals notice, the submissions, and all of the material put before it. Many of the issues canvassed are not material. Many need not be further considered for the reasons set out above. [85] Ms De Bruyns did not obtain an exemption, and was unvaccinated, in contravention of a lawful and reasonable direction. She was unavailable to attend work as a consequence. [86] Absent reasonable excuse Mr Campbell was able to form a reasonable belief of Ms De Bruyns' liability for disciplinary action. [87] If and when he had formed the reasonable belief, the power to suspend without remuneration was enlivened. Any decision he then made to exercise that power had to be fair and reasonable. [88] Has Ms De Bruyns shown she has an arguable case in relation to this appeal? Her remaining arguments can be summarised as: (a) there is an arguable case that the decision was not fair and reasonable, because she had a reasonable excuse for not getting vaccinated, specifically that: (i) her exemption application was never validly determined; and/or 34 [2023] QIRC 121. 35 [2019] ICQ 18. -- 18 of 24 -- 19 (ii) the substantive reasons she relied on in that application also gave rise to a reasonable excuse for failing to get vaccinated; or (b) alternatively, there is an arguable case that notwithstanding her non-compliance with the direction to get vaccinated, the respondent should have considered and provided other duties rather than suspending her. [89] For the reasons that follow, Ms De Bruyns has not made out an arguable case. Exemption application not validly determined? [90] One of Ms De Bruyns' arguments is effectively that the exemption application was not validly determined, and that that meant she should not have been suspended. [91] This goes not only to matters that would properly have been the subject of an appeal of the exemption decision, but also to whether there was any decision at all. [92] If not, the question would be what, if any, effect that has on whether Ms De Bruyns had a reasonable excuse for failing to get vaccinated, and whether she has an arguable case as to the appeal of the suspension decision. However, Ms De Bruyns has not made out her argument that the exemption decision was affected by jurisdictional error. [93] Ms De Bruyns made the argument effectively on the grounds that: (a) There had been no effective sub delegation of authority from the Chief Executive of the Health Service to Mr Campbell because of an absence of permission from the Chief Executive of the Department to the Chief Executive of the Health Service to subdelegate to Mr Campbell; (b) Mr Campbell, and the internal reviewer Mr Leggate, had, in exercising the power, acted inconsistently with the condition on the delegation; and/or (c) Mr Campbell and Mr Leggate misconceived her application for exemption as being made on medical contraindication grounds, when it was made on 'exceptional circumstances' grounds, causing them to identify the wrong issue for determination. (d) There was a failure to afford procedural fairness. [94] On the issue of delegation, the respondent has, since the submissions were filed, provided the instruments of delegation and/or sub-delegation (and authorisation and/or sub- authorisation) of 12 October 202136 and 28 October 2021.37 Ms De Bruyns has, in 36 Exhibit 3. 37 Exhibit 4. -- 19 of 24 -- 20 response, properly abandoned aspects of the appeal notice that turned on her previous assertion that Dr Gillies lacked written permission to sub-delegate. [95] The issue regarding consultation has been well-settled. The claim that the delegation was not exercised consistently with the consultation requirement included within it has no reasonable prospect of success. [96] Did the exemption decision-maker or internal reviewer misconceive the nature of the application for exemption? No. The exceptional circumstances basis for the application was considered and determined, as is apparent from the face of the exemption decision. The decision-maker explicitly found against an exemption on exceptional circumstances grounds. He also found against granting an exemption on the basis of the medical contraindication ground. It was reasonable for him to do this by way of completeness, given the grounds for the exceptional circumstances claim (which were grounds that went to medical and psychological issues). [97] As to the issue of procedural fairness, Ms De Bruyns made various criticisms of the process for the exemption decision, in the notice of appeal. Many of them are not relevant as this is not an appeal of the exemption decision. However, some of them go to procedural fairness, the absence of which may give rise to jurisdictional error. [98] Procedural fairness is not a rigid set of rules but a flexible obligation to adopt fair procedures that are appropriate and adapted to the circumstances of a particular case. The circumstances of this case included that the employer was a health service, and the decision was being made during a global pandemic. The content of the natural justice obligation must take its colour from such a circumstance. [99] Ms De Bruyns had an opportunity to make her case for an exemption. If she was unsatisfied with the decision, she then had an opportunity to state her reasons for that dissatisfaction in seeking an internal review. She then had an opportunity, of which she did not avail herself, to seek an external review by the Queensland Industrial Relations Commission. She was put on notice of each of these avenues of review. [100] Her material suggests it was for the decision-makers to put to her the reasons why the application might be refused. This misconceives the nature of the application. Ms De Bruyns bore the responsibility of making her case. [101] She says also that she was not able to have a support person of her choice. This is also not maintainable. The letter from Industrial Relations Claim was considered. There was no physical meeting or hearing at which a support person would attend. [102] Her material also suggests that in putting her on notice that she had fourteen days to request an internal review, the respondent caused her some prejudice, because in her view she was entitled to seek a review from the Commission Chief Executive, Public Service Commission, but only within 28 days. Regardless of whether she is correct about the -- 20 of 24 -- 21 existence of such a review path, it is difficult to see how the claim of prejudice could be made out given she did not make her internal review request until one month and one day after the exemption decision was issued, and the internal review proceeded without any apparent impediment arising in relation to the fourteen-day period. [103] Ms De Bruyns also argued that she was misdirected to seek internal review via the process set out in the exemption decision, rather than pursuant to clause 10 of Public Service Commission Directive 11/20. The Commission as constituted need not determine whether the Public Service Commission review channel was available to Ms De Bruyns or whether this process affected the fairness or reasonableness of the exemption decision or the internal review of it. The question that arises in relation to procedural fairness was whether Ms De Bruyns had a fair opportunity to be heard. She did. She had a first instance opportunity, and access to both internal and external review. [104] There are various allegations in Ms De Bruyns' material to the effect that the Chief Executive of the Department and/or Mr Campbell in making the exemption decision and/or Mr Leggate was not impartial. Reading Ms De Bruyns' material together with the letter from Industrial Relations Claims referred to in it, the only basis for this assertion seems to be that the Health Minister made some remarks adverse to an organisation or organisations, and Ms De Bruyns apprehended that might have influenced the decision- makers. There was nothing specific to Ms De Bruyns in the remarks concerned. Nor was there any evidence that either decision-maker was so influenced. Ms De Bruyns suggests that there was a duty on the Chief Executive to explicitly tell his delegates that the Health Minister could not give them directions in making such decisions. This argument does not assist her. It is implausible that decision-makers such as Mr Campbell and Mr Leggate were unaware of their responsibilities, or that they took parliamentary debates about organisations as being directions issued to them as to how to determine Ms De Bruyns' application for exemption or the internal review of it. [105] Ms De Bruyns also indicates in various ways in her material that she believes her exemption application and the internal review of it were prejudged, and/or that proper consideration was not given to her personal circumstances. This is clearly not borne out, having regard to the face of both decisions and the reasons provided. [106] Neither the exemption decision nor the confirmation of it on review was affected by jurisdictional error. [107] In any event, even if the decision had been invalid, Ms De Bruyns had at the very least not obtained a positive decision granting an exemption when the suspension was being considered. No other reasonable excuse for non-compliance [108] The decision-maker was entitled to rely on the exemption decision, which was validly made and, on the material before the Commission, not subsequently disturbed on review. -- 21 of 24 -- 22 There was no need to look behind the exemption decision to consider afresh whether the issues that Ms De Bruyns had raised in pursuing an exemption also gave rise, separately, to a reasonable excuse for failure to comply with the direction to be vaccinated. [109] If I am wrong about that, or about the validity of the exemption decision, Ms De Bruyns nonetheless fails to demonstrate she has an arguable case, having regard to the reasons she advanced as to why she should not have to comply with the vaccination requirement. In her submissions Ms De Bruyns says that: (a) She has a history of life-threatening, drug-adverse reactions and needed to seek psychological assistance to address her hesitancy to take a drug she was unfamiliar with; (b) She has had varied allergic reaction manifestations to several causative factors including but not limited to medications, scents, creams, and food additives and preservatives, and she was "incredibly cautious" about what she ingested, injected, inhaled, wore, embrocated, and wiped with; (c) In the past she had had reactions that included an infrequent reaction called Stevens-Johnson syndrome and blood clots, and her research into vaccine safety showed evidence that this was indeed a reaction to the available COVID-19 vaccine, as were blood clots; (d) As per recommendations of Queensland Health she had engaged with the Employee Assistance Scheme to allay her fears; and (e) It was a well-documented fact that drug or vaccine hesitancy or avoidance behaviour and anxiety akin to post traumatic stress disorder (PTSD) follows a life- threatening drug reaction such as SJS. [110] When being asked to show cause why she should not be suspended without remuneration, or in the earlier processes, Ms De Bruyns did not provide to the respondent any medical or other evidence to support her assertions about her stated history of life-threatening, drug-adverse reactions, need for psychological assistance to address her hesitancy, previous allergic reactions to various causative factors, or episodes of Stevens-Johnson syndrome. [111] It is clear from the foregoing that Ms De Bruyns relied on medical and psychological matters. Those matters either underpinned vaccine hesitancy or were vaccine hesitancy by another name. The fact that a person may be hesitant to receive a COVID-19 vaccine and genuinely hold that hesitancy does not make it incumbent on upon the State to accept that view.38 Vaccine hesitancy was not a reasonable excuse for failure to comply with 38 Higgins v State of Queensland (Queensland Health) [2022] QIRC 30. -- 22 of 24 -- 23 HED 12/2139 and nor were the various medical issues contended, but not evidenced, by Ms De Bruyns. Reasonable belief that Ms De Bruyns was liable for disciplinary action [112] Ms De Bruyns did not have a reasonable excuse for contravening the relevant lawful and reasonable direction. Mr Campbell could form the requisite belief in relation to liability to disciplinary action, enlivening the power to suspend Ms De Bruyns without remuneration. To the extent they relate to these issues Ms De Bruyns' submissions do not demonstrate an arguable case. Whether other duties considered or required to be offered [113] Does Ms De Bruyns nonetheless have an arguable case that the suspension decision was not fair and reasonable, sufficient to warrant the Commission refraining from exercising the discretion under subsection 562A(3) of the Industrial Relations Act? [114] Ms De Bruyns submits that the respondent should have allowed her to undertake alternative duties rather than suspending her from duty without remuneration. This goes to the fairness and reasonableness of the suspension decision. [115] Her submission states, inter alia, "If a risk management review had been adequately done, I firmly believe that phone consultation and working from home or a designated working space would have been a viable option. No other duties were considered…".40 [116] There was no obligation to provide to Ms De Bruyns a risk assessment for the specific business unit in which she worked.41 [117] Her submission that "[n]o other duties were considered" in the making of the suspension decision is not made out on the face of the material. The suspension decision expressly considered the question of whether alternative duties, or a temporary transfer, or other alternative working arrangements, were available or appropriate in the circumstances at the time. 42 [118] The respondent is correct to submit that at the time of the suspension decision Ms De Bruyns was unable to attend her usual workplace or perform her usual duties because she was not vaccinated against COVID-19, and that it was unlawful for her to attend work by operation of the Chief Health Officer Direction Workers in a healthcare setting (COVID-19 Vaccination Requirements). The respondent is also correct to submit that 39 Mackenzie v State of Queensland (Queensland Health) [2023] QIRC 121. 40 Appellant's submissions, page 2, paragraph numbered 3. 41 Mocnik & Ors v State of Queensland (Queensland Health) [2023] QIRC 58. 42 At p 4 of the letter from Mr Campbell of 16 June 2022. -- 23 of 24 -- 24 neither Queensland Health nor SCHHS was required to provide alternative duties for Ms De Bruyns. [119] Ms De Bruyns' submission about risk assessment does not demonstrate an arguable case. Conclusion [120] The Commission as constituted reasonably believes, after asking Ms De Bruyns to establish by written submissions that she has an arguable case for the appeal, that the appeal should not be heard: (a) because it is lacking in substance; and/or (b) for the compelling reasons that: (i) the appeal has no reasonable prospects of success; and/or (ii) it is not in the public interest for public funds to continue to be expended on these proceedings. [121] For the reasons given, the Commission declines to hear Ms De Bruyns' appeal. Orders [122] I make the following order: That pursuant to section 562A of the Industrial Relations Act 2016 (Qld), the Commission will not hear the appeal. -- 24 of 24 --