Elliott v State of Queensland (Queensland Health) [2022] QIRC 332

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Elliott v State of Queensland (Queensland Health) [2022] QIRC 332 PARTIES: Elliott, Stacy (Appellant) v State of Queensland (Queensland Health) (Respondent) CASE NO: PSA/2022/389 PROCEEDING: Public Service Appeal – Fair treatment decision DELIVERED ON: 26 August 2022 MEMBER: Dwyer IC HEARD AT: On the papers ORDER: 1. Pursuant to s 562A(3) of the Industrial Relations Act 2016 (Qld), I decline to hear the Appellant's appeal against the decision. CATCHWORDS: INDUSTRIAL LAW - PUBLIC SERVICE - appeal – where the Health Employment Directive No.12/21 - Employee COVID-19 vaccination requirements required employees to receive at least a first dose of a COVID-19 vaccine by 30 September 2021 and receive the second dose of a COVID-19 vaccine by 31 October 2021 – appellant failed to comply with direction – disciplinary finding decision issued substantiating the allegation of failing to comply with the direction and concluding the appellant should be suspended without pay - appellant terminated whilst appeal is on foot – appellant subsequently reinstated – -- 1 of 12 -- 2 LEGISLATION: consideration of whether to hear the appeal – appeal dismissed Industrial Relations Act 2016 (Qld) s 562A Public Service Act 2008 (Qld) s 137 Hospital and Health Boards Act 2011 (Qld) s 51 Human Rights Act 2019 (Qld) s 13 Health Employment Directive No. 12/21 - Employee COVID-19 vaccination requirements Directive 16/20, Suspension Directive cl 6, 7, 8 CASES: Brasell-Dellow & Ors v State of Queensland, (Queensland Police Service) & Ors [2021] QIRC 356 Tilley v State of Queensland (Queensland Health) [2022] QIRC 002 Slykerman v State of Queensland (Queensland Health) [2022] QIRC 039 Higgins v State of Queensland (Queensland Health) [2022] QIRC 030 Sunny v State of Queensland (Queensland Health) [2022] QIRC 119 Collins v State of Queensland (Queensland Health) [2022] QIRC 215 Edwards v State of Queensland (Queensland Health) [2022] QIRC 091 Barbagallo v State of Queensland (Queensland Health) [2022] QIRC 195 -- 2 of 12 -- 3 McPaul v State of Queensland (Queensland Health) [2022] QIRC 175 Knight v State of Queensland (Queensland Ambulance Service) [2022] QIRC 283 Brown v State of Queensland (Queensland Ambulance Service) [2022] QIRC 312 Godwin v State of Queensland (Queensland Health) [2022] QIRC 240 Lamb v State of Queensland (Queensland Health) [2022] QIRC 237 Casson v State of Queensland (Queensland Police Service) [2022] QIRC 113 Rae v State of Queensland (Queensland Health) [2022] QIRC 160 Reasons for Decision Background [1] Ms Stacy Elliott is employed as a medical typist with the Mackay Hospital and Health Service ('the department'). [2] It is not controversial that Ms Elliott was subject to the Health Employment Directive No. 12/21 - Employee COVID-19 vaccination requirements, ('the directive') and that she did not comply with its requirement that she receive a first COVID vaccine dose by 30 September 2021 and a second one by 31 October 2021. It is further undisputed that Ms Elliott continues to have no intention of compliance with the directive. [3] In her appeal notice filed on 21 March 2022, Ms Elliott appeals the decision to suspend her without pay and the decision substantiating the allegations against her for non- compliance with the directive. No decision was attached to her appeal notice. [4] In her appeal notice, Ms Elliott also contends that she has never been provided with an individual risk assessment for her role. She submits because she had an arrangement in which she was working from home, she is not required to attend a health facility. -- 3 of 12 -- 4 [5] On 25 March 2022, a mention was held during which Ms Elliott was requested to provide a copy of the decision which she appeals. A directions order inviting submissions from both parties in relation to the appeal was also issued. Ms Elliott subsequently provided a copy of the decision which she appeals. The decision is dated 17 March 2022 ('the decision'). [6] The decision confirms substantiation of an allegation that Ms Elliott contravened a direction given to her as a health service employee and further, indicates department is considering her termination of employment. The decision also determines she will be suspended from duty without renumeration. [7] I note that the decision is in fact two decisions contained within one correspondence, but for the purposes of this appeal I will treat the correspondence as a single decision. [8] Following compliance by the parties with directions to file submissions, the matter was further mentioned on 23 May 2022 and the parties agreed to proceed to a hearing of the appeal on 12 July 2022. A listing notice was issued. [9] In an extraordinary turn of events, and notwithstanding the apparent willingness of the department to proceed to a hearing of this appeal, on 31 May 2022 Ms Elliott received a letter indicating that her employment was terminated, effective immediately. [10] The decision to terminate Ms Elliott's employment while she had an active public service appeal, and when the department had just informed the commission they would participate in a hearing of that appeal, was undoubtedly a feature of either (at best) incompetence or (at worst) misleading conduct by the department. Whichever of these it was, I have no need to examine further the circumstances of the decision to terminate Ms Elliott's employment given the remedial steps that subsequently unfolded. [11] Following notification to the Industrial Registry from Ms Elliott of her termination the matter was listed for an urgent mention on 6 June 2022. [12] At the mention on 6 June 2022, I noted with concern that Ms Elliott's employment had been terminated before the appeal had been heard. However, notwithstanding my concerns as to the inappropriate conduct of the department in this regard, I questioned the utility and prudence of continuing to deal with this appeal in circumstances where Ms Elliott was adamant she would be starting proceedings in respect of the termination of her employment.1 In that regard, I held concerns that if I continued to hear and determine her appeal the commission might be placed in the undesirable position of twice being required to make findings about the same disciplinary finding and the antecedent facts. 1 Ms Elliott filed a reinstatement application on 9 June 2022 (matter TD/2022/164). -- 4 of 12 -- 5 [13] In the circumstances where Ms Elliott was likely to (and did) commence proceedings in respect of her termination, she was given seven days to consider her position and confirm whether she wished to discontinue this appeal. Ms Elliott was also advised that should she wish to press this appeal she would be required to provide submissions as to why the commission should deal with it pursuant to section 562A(3) of the Industrial Relations Act 2016 (Qld) ('the Act').2 [14] Ms Elliott sent an email to the commission on 9 June 2022 stating she wished to withdraw this appeal 'under duress'. A further mention was held on 14 June 2022 to clarify Ms Elliott's position and to advise her that the commission would not accept her discontinuance if it was offered in those terms. Ms Elliott was given a further period of time to advise the Industrial Registry of her intentions. [15] On 16 June 2022 Ms Elliott emailed the commission confirming that she wished to proceed with the appeal. Consequently, I issued a further directions order inviting submissions from Ms Elliott as to why the Commission should hear the matter pursuant to s562A of the Act.3 [16] On 24 June 2022 Ms Elliott filed submissions in accordance with the further directions order. [17] On 27 June 2022 the department revoked the termination of Ms Elliott's employment and she returned to her pre-termination status of suspension without remuneration. [18] The department did not provide submissions in response by 1 July 2022 as directed. Consequently, the matter was listed for mention on 5 August 2022 to ascertain the department's intentions. At the mention, the department indicated that they wish to rely on their submissions filed on 12 April 2022 in the substantive appeal. Relevant legislation [19] Section 137 of the Public Service Act 2008 (Qld) ('the PS Act') contemplates the discretion that may be exercised to suspend a public service employee without pay. [20] Section 137 of the PS Act relevantly provides: (1) The chief executive of a department may, by notice, suspend a person from duty if the chief executive reasonably believes— (a) for a public service officer—the proper and efficient management of the department might be prejudiced if the officer is not suspended; or 2 T 1-3, ll 26-36. 3 The discussion with Ms Elliott on 6 June 2022 about s 562A of the Act was in the context of the termination of her employment. The directions issued on 16 June 2022 more broadly directed Ms Elliott to make submissions pursuant to s 562A as to why the Commission should hear her appeal. -- 5 of 12 -- 6 (b) for a public service employee—the employee is liable to discipline under a disciplinary law. … (4) A public service employee is entitled to normal remuneration during a suspension, unless— (a) the person is suspended under subsection (1)(b); and (b) the chief executive considers it is not appropriate for the employee to be entitled to normal remuneration during the suspension, having regard to the nature of the discipline to which the chief executive believes the person is liable. … (Underlining added) [21] Clause 6 of the Directive 16/20, Suspension Directive ('the Directive') provides: … 6.3 In deciding that normal remuneration is not appropriate, the factors the chief executive is to consider include: (a) the nature of the discipline matter (b) any factors not within the control of the agency that are preventing the timely conclusion of the discipline process (c) the public interest of the employee remaining on suspension with remuneration. (Underlining added) [22] Section 562A of the IR Act relevantly provides: (1) … (2) … (3) The commission may decide it will not hear a public service appeal against a decision if— (a) the appellant has made an application to a court or tribunal relating to the decision, whether or not the application has been fully decided; or (b) the commission 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— (i) is frivolous or vexatious; or (ii) is misconceived or lacks substance; or (iii) should not be heard for another compelling reason. (Underlining added) -- 6 of 12 -- 7 Submissions of the parties Submissions of the department [23] The department's submissions note that Ms Elliott's role as a medical typist is categorised as Group 2 pursuant to section 7.1 of the directive. Group 2 applies to employees who work in a hospital where clinical care or support is required. [24] Clause 8.1 of the directive was applicable to Ms Elliott, which provides as follows: 8.1 Existing employees currently undertaking work or moving into a role undertaking work listed in a cohort of Table 1, must: a. have received at least the first dose of a COVID-19 vaccine by 30 September 2021; and b. have received the second dose of a COVID-19 vaccine by 31 October 2021. … [25] The department submits that the decision to make a disciplinary finding against Ms Elliott was fair and reasonable for the following reasons: • The directive is lawful (being issued pursuant to section 51 of the Hospital and Health Boards Act 2011 (Qld)) and reasonable; • Ms Elliott's usual workplace is the Mackay Base Hospital where she is required to attend for legitimate reasons including training or changes to operational requirements; • Ms Elliott did not have a reasonable excuse for non-compliance with the directive; • Vaccine hesitancy or personal preference not to receive a COVID-19 vaccine is not an exceptional circumstance and does not result in compliance with the directive being unreasonable; and • Ms Elliott's concerns raised in relation to receiving the vaccine were addressed in Ms Jones' letter of 21 February 2022. [26] The department submits the decision to suspend Ms Elliott without pay was fair and reasonable because: • Ms Elliott was suspended without pay after a disciplinary finding was substantiated; -- 7 of 12 -- 8 • Ms Elliott was afforded procedural fairness, namely, she was provided with an opportunity to respond to the proposed suspension from duty without pay and submitted a Response on 30 December 2021. Ms Elliott's response was considered by the decision maker; • Whilst the department accommodated alternative working arrangements whilst Ms Elliott's exemption application was considered, the arrangements could not continue after a decision was made, as Ms Elliott is required to be available to attend the Mackay Base Hospital from time to time; • The financial impact of suspension without pay must be balanced with the Department's obligation to ensure the effective, efficient and appropriate use of public resources; and • The department has Work Health and Safety Act 2011 (Qld) obligations, which the directive addresses. Submissions of Ms Elliott [27] Ms Elliott's submissions dated 24 June 2022 primarily provide a chronology in relation to the matter. In addressing why her appeal should be heard pursuant to section 562A of the Act, Ms Elliott provides the following paragraph to conclude her submissions: I have followed all prescribed Public Service protocols and procedures to have this matter dealt with appropriately, but unfortunately, I have been denied procedural fairness in relation to having my issues addressed in accordance with the Procedures prescribed by the Public Service. Despite being advised by Mr Davies in letter dated 17 March 2022 of my "appeal provisions", this has been ignored as I believe there was never any intention of allowing for "reasonable or fairness" decisions as they were just following "blanket directions". [28] For completeness I also read and had regard to Ms Elliott's submissions filed on 6 May 2022 in response to the department's submissions filed on 12 April 2022. In those submissions Ms Elliott contends inter alia that: • The COVID-19 vaccination requirements do not form a valid part of Ms Elliott's contract; • Ms Elliott's remote working arrangement was approved, which she submits is a reasonable alternative that should have permanently been provided to her; • The vaccine mandate imposes undue pressure, coercion and manipulation; • The mandates and restrictions are starting to be ceased in other jurisdictions; -- 8 of 12 -- 9 • The vaccine directions contravene Ms Elliott's employment contract, the 'Fair Work Commission Act', the Public Service Act, the principles of natural justice, the Human Rights Act, the Hospital and Health Boards Act, and the Work Health and Safety Act. Consideration Non-compliance with the directive [29] The commission has now dealt with a great many appeals of this nature. Consequently, a reliable body of jurisprudence has been developed dealing with increasingly common themes in the arguments advanced by appellants like Ms Elliott, who have not complied with a vaccine mandate applicable in their respective departments of employment. [30] Notwithstanding that these decisions are available publicly on the Queensland Courts website, appellants continue to file these appeals challenging the validity of directions for them to be vaccinated and relying on arguments such as 'vaccines are not safe' or 'mandates are coercion' or 'human rights infringements' or 'risk assessments were not provided' or 'consultation did not occur' et cetera. [31] It is more than apparent that the vast majority of such appellants have no regard for the reported decisions or if they do, they simply press on, expecting that somehow the outcome will be different in their case. With the exception of a small number of decisions returned to departments for technical inadequacies, no appellant has succeeded on the increasingly tedious suite of arguments of this nature.4 [32] The continued use of the commission's resources to receive and repeatedly dispense with the same arguments cannot be in the public interest. In circumstances where there is now a reliable body of decisions dispensing with similar arguments, it is my view that appellants seeking to reagitate settled arguments should be required to justify why they ought to be heard. [33] Ms Elliott was able to provide fulsome submissions in response the department in respect of her appeal. Ms Elliott was further afforded the opportunity pursuant to s 562A to demonstrate that she has an arguable case. 4 See for example: Brasell-Dellow & Ors v State of Queensland, (Queensland Police Service) & Ors [2021] QIRC 356; Tilley v State of Queensland (Queensland Health) [2022] QIRC 002; Slykerman v State of Queensland (Queensland Health) [2022] QIRC 039; Higgins v State of Queensland (Queensland Health) [2022] QIRC 030; Sunny v State of Queensland (Queensland Health) [2022] QIRC 119; Collins v State of Queensland (Queensland Health) [2022] QIRC 215; Edwards v State of Queensland (Queensland Health) [2022] QIRC 091; Barbagallo v State of Queensland (Queensland Health) [2022] QIRC 195; McPaul v State of Queensland (Queensland Health) [2022] QIRC 175; Knight v State of Queensland (Queensland Ambulance Service) [2022] QIRC 283; Brown v State of Queensland (Queensland Ambulance Service) [2022] QIRC 312; Godwin v State of Queensland (Queensland Health) [2022] QIRC 240; Lamb v State of Queensland (Queensland Health) [2022] QIRC 237. There are numerous others. -- 9 of 12 -- 10 [34] For the reasons outlined immediately above, I do not intend to descend to a detailed analysis of Ms Elliott's arguments. Suffice to say they traverse many of the now well- travelled and consistently rejected arguments and include submissions that Ms Elliott: • Did not consent to the alteration of her employment contract; • Cannot give valid consent to be vaccinated due to coercion; • Presented for vaccination but was refused because she informed the medical practitioners that she was presenting under duress; and • Was not provided with a risk assessment. [35] In addition to these matters, Ms Elliott makes submissions relying on information (apparently extracted from the Fair Work Commission website) and refers to federal legislation regarding coercion (that has no application to her employment). Ms Elliott also seeks to invoke the Human Rights Act 2019 (Qld) ('HR Act') (although entirely omits any reference or consideration to s 13 of that Act). Ms Elliott also submits that the Directive is 'inconsistent' with industrial instruments and 'Acts'. [36] All of these arguments advanced by Ms Elliott are patently wrong. Ms Elliott appears adept at researching information that she considers helpful to her arguments however, none of it is. Assertions about coercion are misconceived. References to federal legislation are irrelevant. Arguments relying on the HR Act are incomplete. [37] The fact that she relies on unreliable or irrelevant information does not detract from the fact that she was at least sufficiently skilled to find the information in the first place. Had Ms Elliott applied her research skills to conduct research of the relevant case law, she would have readily appreciated how unmeritorious her arguments are. [38] With one exception, all of the arguments advanced by Ms Elliott are (more or less) the same as arguments that have been run (without success) on countless occasions before this commission throughout 2022. There is only one argument made by Ms Elliott that is unique to her circumstances. [39] Ms Elliott's role with the department is currently the subject of a temporary flexible work agreement. Ms Elliott has approval to perform her work from home on a full-time basis. For this reason, Ms Elliott argues that she has no reason to enter departmental facilities which, she argues, puts her outside the scope of the directive. As unique as this argument might be, a cursory consideration of it reveals its flaws. [40] Ms Elliott's argument in this regard entirely ignores the fact that she remains an employee of the department and therefore she remains subject to any reasonable and lawful -- 10 of 12 -- 11 direction. Regardless of whether she is currently not required to attend a departmental facility to perform her duties the fact remains that, subject to the appropriate notice, her temporary flexible arrangement could be withdrawn at any time. In the event of this occurring, all of the risks sought to be addressed by the directive would immediately arise if Ms Elliott was unvaccinated. [41] Further, while I appreciate that the withdrawal of the flexible workplace arrangement is somewhat speculative it is not the only possible scenario that might see Ms Elliott being compelled to attend a departmental facility. As an employee Ms Elliott could (at any time) be directed to attend at a departmental facility for e.g., a meeting or training or some other purpose related to her employment. Any attendance under any circumstances by an unvaccinated employee would give rise to the risk sought to be managed by the directive. [42] The gravity of the purpose of the directive i.e., to manage the risks associated with transmission of COVID-19 in departmental facilities means that every reasonable step to manage that risk must be taken. This would extend to ensuring that every employee who is or even may be required to attend upon a departmental facility has complied with the directive. [43] Ms Elliott's expectation of working from her home indefinitely and without exception is misconceived. As an employee of the department, she remains liable to comply with all lawful and reasonable directions, any number of which might require her to attend at a departmental facility in the foreseeable future. In those circumstances, the only unique feature of her appeal is equally as devoid of merit as the other matters she raises. Suspension without renumeration [44] With respect to Ms Elliott's appeal against the decision to suspend her without remuneration, here too Ms Elliott fails to have regard to relevant precedents.5 [45] In circumstances where there can be no dispute as to the lawful and reasonable nature of the directive, and where Ms Elliott has openly failed to comply with that directive without reasonable excuse, the termination of her employment might well be a fait accompli. In those circumstances, one can well appreciate how the decision maker would not consider it appropriate to continue remunerating a defiantly recalcitrant employee relying on a collection of misconceived arguments. Conclusion [46] Having regard to all of the submissions filed by Ms Elliott in this matter I consider they reveal that the entire appeal is founded on grounds that have already been extensively 5 See for example Casson v State of Queensland (Queensland Police Service) [2022] QIRC 113; Rae v State of Queensland (Queensland Health) [2022] QIRC 160. -- 11 of 12 -- 12 dealt with by this commission and been consistently rejected or alternatively, Ms Elliott's appeal grounds are misconceived. [47] In the circumstances I consider the overwhelming lack of merit in her arguments is a compelling reason to exercise my discretion under s 562A(3) of the IR Act. In those circumstances, I decline to hear her appeal. Order [48] In all of the circumstances, I make the following order: 1. Pursuant to s 562A(3) of the Industrial Relations Act 2016 (Qld), I decline to hear the Appellant's appeal against the decision. -- 12 of 12 --