Fawcett v State of Queensland (Queensland Ambulance Service) [2022] QIRC 171

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Fawcett v State of Queensland (Queensland Ambulance Service) [2022] QIRC 171 PARTIES: Fawcett, Philip (Applicant) v State of Queensland (Queensland Ambulance Service) (Respondent) CASE NO: PSA/2022/425 PROCEEDING: HEARD ON: Application in existing proceedings for stay of decision being appealed Mention on 26 April 2022 DELIVERED ON: 20 May 2022 MEMBER: HEARD AT: Hartigan IC Brisbane and on the papers ORDER: The application for a stay is dismissed. CATCHWORDS: PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – public service appeal – where applicant employed as an advanced care paramedic in the Queensland Ambulance Service ('QAS') – where QAS issued direction on 13 September 2021 and a further direction on 31 January 2022 requiring certain employees to receive a first dose and a second dose of a COVID-19 vaccine by 27 February 2022 unless the employee has a valid exemption – where applicant applied for exemption from complying with requirement to be vaccinated – where respondent rejected applicant's exemption application and directed applicant to receive a -- 1 of 13 -- 2 COVID-19 vaccine within seven days and provide confirmation of vaccination – where applicant appealed against decision to refuse exemption application and direction to receive a COVID-19 vaccine – where applicant requested a stay of the decision pending determination of the appeal – where respondent objects to stay of decision – considerations of matters in granting a stay of a decision being appealed against – where respondent has relied, in part, on the decision subject of this appeal to commence a disciplinary process – where continuation of disciplinary process while appeal on foot has potential to render orders made in appeal nugatory – where potential procedural fairness issues may arise – where no decision can practically be stayed – application dismissed LEGISLATION: CASES: APPEARANCES: Industrial Relations Act 2016 (Qld), s 566 Colebourne v State of Queensland (Queensland Police Service [2021] QIRC 380 State of Queensland (Queensland Health) v The Regulator under the Work Health and Safety Act [2021] QIRC 190 Mr P. Fawcett, the Applicant Mr L. Casey of Queensland Ambulance Service for the Respondent Reasons for Decision Introduction [1] This decision addresses an interlocutory issue that has arisen at a preliminary stage of the proceedings with respect to an appeal of a decision commenced in accordance with the Public Service Act 2008 (Qld) ('the PS Act'). Relevantly, the issue arises because it has become apparent that the employer, the Queensland Ambulance Service ('the QAS'), has relied, in part, on the decision that is the subject of this appeal to commence a disciplinary process and is continuing with the disciplinary process whilst the appeal is before, and yet to be determined by the Queensland Industrial Relations Commission ('the Commission'). -- 2 of 13 -- 3 [2] On 8 April 2022, Mr Philip Fawcett, who is employed as an Advanced Care Paramedic with the QAS, filed an appeal notice in the Industrial Registry. The appeal relates to a decision of the QAS dated 23 March 2022 which confirmed an earlier decision to refuse Mr Fawcett’s request for exemption from the requirements to be vaccinated against COVID-19 and directed Mr Fawcett to receive his first dose of a COVID-19 vaccine in accordance with QAS Human Resource Procedure – COVID-19 Vaccination Requirements ('the QAS HR Procedure’), and to provide written confirmation and evidence that he has done so within seven days of his receipt of the letter. [3] The letter advises Mr Fawcett of his appeal rights, namely, that he may lodge an appeal of the decision in the Industrial Registry within 21 days of receiving the decision. Mr Fawcett lodged the appeal within time on 8 April 2022. [4] It has now become apparent, for reasons which I will refer to below, that also on 8 April 2022, the QAS wrote to Mr Fawcett inviting him to show cause why a disciplinary finding should not be made against him in relation to the following allegation: You have not complied with the requirements of the QAS HR Policy to receive the prescribed number of doses of a COVID - 19 vaccine and to provide evidence of having received the prescribed number of doses of a COVID-19 vaccine within the prescribed timeframes. ('the allegation'). [5] Relevantly, the QAS identified the particulars it relied on in support of the allegation, which includes the decision and direction issued on 23 March 2022, which is the subject of this appeal. The particulars, relevant to this appeal, were put in the show cause letter by the QAS in the following terms: m) You were advised on 17 February 2022 by Mr Ray Clarke, Executive Director, Workforce that your application for an exemption from the QAS HR Policy was refused. n) On 1 March 2022, you sought a review of the decision to refuse your application for an exemption from the QAS HR Policy. o) You were advised on 23 March 2022 by Mr John Hammond, A/Assistant Commissioner, Strategic Operations that he had decided to confirm the decision to refuse your application for exemption. p) You were issued on 23 March 2022 with a specific direction to comply with the QAS HR Policy and receive a first dose of a COVID-19 vaccine and provide written confirmation and evidence that you had done so within seven calendar days of receipt of the letter. q) This specific direction was issued in addition to your obligation to comply with the directions contained in the QAS HR Policy. r) You have not provided to your line manager, uploaded using the QAS COVID Vaccination MACH Form, or emailed evidence of vaccination confirming that you have received the first dose of the prescribed number of doses of a COVID-19 vaccine to -- 3 of 13 -- 4 [email protected], as directed in Mr Hammond's letter of 23 March 2022. s) There is no evidence that you have complied with the requirements of the QAS HR Policy to receive the prescribed number of doses of a COVID-19 vaccine. … [6] The commencement of the disciplinary process was not bought to the Commission’s attention until the matter was listed for mention on 26 April 2022. The matter was bought on for mention following an exchange of correspondence between the Industrial Registry and the parties on 13 April 2022 and 14 April 2022 respectively. [7] On 13 April 2022, the Industrial Registry sent the following correspondence to the parties: Dear Parties We refer to the above matter and to the appeal notice filed in the Industrial Registry on 8 April 2022. Given the nature of the decision being appealed against, namely the decision dated 23 March 2022, the Commission is considering whether it is appropriate to issue a stay of the decision to preserve the status quo of the matter whilst this appeal process takes place. If either party wishes to be heard with respect to this, they are requested to notify the Industrial Registry by 12 noon Thursday 14 April 2022, otherwise the Commission will issue a stay, together with further directions to progress the matter. [8] By reply email dated 14 April 2022, the QAS, of its own volition and prior to it indicating that it wished to be heard and directions issued with respect to the issuing of a stay, provided written submissions opposing a stay of the decision. No mention of the commencement of the disciplinary process was made in those submissions by the QAS. [9] Given the irregular manner in which the QAS provided its submissions, the Commission listed the matter for a telephone mention on 26 April 2022. [10] At the commencement of the mention, Mr Fawcett indicated that he requested that a stay of the decision be issued.1 Mr Fawcett submitted:2 But my understanding was that – I could be wrong with this – that the Commission or the Industrial Relations Commission, if they were going to grant a stay, all of this would just be put on hold as one matter and basically the status quo would remain until the Industrial Relations Commission had made their decision as to the 1 T1 – 2, l 37. 2 T1 – 3, ll 12-17. -- 4 of 13 -- 5 fair treatment appeal, and my only request is that the status quo remains if the stay is allowed. [11] During the mention, the QAS confirmed its position that it opposed a stay being issued with respect to the decision. [12] The QAS confirmed that it had commenced a show cause process against Mr Fawcett in relation to Mr Fawcett's alleged failure to follow a lawful direction to receive a COVID- 19 vaccine, as stated in the decision dated 23 March 2022 set out above. The QAS further confirmed that the show cause process arose out of Mr Fawcett's alleged failure to follow a lawful direction which is contained in the decision that is the subject of this appeal.3 [13] The following submissions were made by the QAS:4 Yes. But give me a chance to explain that. Now, the – in regards to not complying – it comes back down to the exemption. The exemptions are either provided or not provided. If they are provided, it’s on the direction to go and receive the COVID vaccination. Whether or not an exemption is approved or not doesn’t detract from the fact because of the chief health officer’s direction, anybody that’s not vaccinated within the health sector cannot perform the inherent requirements of their role. Exemption or no exemption. The exemption is only in regards to the lawful direction to go do it. [14] Following the mention, directions were issued to the parties which required the parties to file further written submissions addressing the matters that had been raised during the course of the mention. [15] Both parties complied with the directions. [16] Before considering the substance of the interlocutory issue, it is necessary to consider the steps taken by Mr Fawcett to appeal the decision and the steps that have been taken by QAS with respect to the disciplinary process. The decision [17] Mr Fawcett's employment is regulated by the provisions of the Ambulance Service Act 1991 (Qld). [18] On 13 September 2021, the QAS issued the Code of Practice and the QAS HR Procedure which required all existing and prospective QAS employees who fall within certain high- risk groups to be vaccinated against COVID-19, unless the employee has a valid 3 T1 – 6, ll 20 – 30. 4 T1 – 7, ll 10 – 17. -- 5 of 13 -- 6 exemption. Relevantly, Mr Fawcett's employment as an Advanced Care Paramedic falls within a high risk group of QAS employees that are required to be vaccinated against COVID-19. [19] The QAS HR Procedure provides that existing employees who fall within the high risk groups must have received the first dose of a COVID-19 vaccine by 30 September 2021 and a second dose of a COVID-19 vaccine by 31 October 2021, unless the employee has a valid exemption. [20] On 29 September 2021, Mr Fawcett applied for an exemption to the mandatory vaccine requirements, on the basis of other exceptional circumstances. Submissions were made on behalf of Mr Fawcett as to why he considered he should be granted an exemption to the QAS HR Procedure. [21] On 31 January 2022, the QAS HR Procedure was replaced by the QAS HR Policy - Employee COVID-19 Vaccination Requirements ('the QAS HR Policy'). Following the commencement of the QAS HR Policy, Mr Fawcett elected to provide additional information in support of his existing application for an exemption on 4 February 2022. [22] By letter dated 17 February 2022, the QAS determined to refuse Mr Fawcett's exemption application. On 1 March 2022, Mr Fawcett requested an internal review of the decision. [23] By letter dated 23 March 2022, the decision maker determined to confirm the decision dated 17 February 2022 and relevantly stated: … My decision In considering the requirements under Directive 11/20 and the actions taken as outlined above, I consider the decision made by Mr Ray Clarke was fair and reasonable in the circumstances. I consider your request for exemption from the COVID-19 vaccine was correctly refused in the circumstances and your role continues to require you to be vaccinated against COVID-19. .. Lawful directions I am issuing you with the following lawful directions. Vaccination As you have not received the required dose of a COVID-19 vaccine in accordance with the requirements set out in the QAS HR Policy and do not have an approved exemption, I am now directing you to receive a first dose of a COVID-19 vaccine in accordance with the QAS HR Policy. -- 6 of 13 -- 7 You are directed to provide written confirmation and evidence that you have done so within seven (7) calendar days receipt of this letter. .. Should you fail to follow this lawful direction, you may be liable for disciplinary action pursuant to section 18A of the Ambulance Service Act 1991. .. External review If you are not satisfied with my decision in relation to the internal review of Mr Clarke’s decision to refuse your exemption application, you may lodge a public service appeal. A public service appeal must be lodged with the Industrial Registry within 21 days of you being notified of my decision. [24] On 24 March 2022, Mr Fawcett emailed the QAS advising it that he intended to file a public service appeal with respect to the decision in the Industrial Registry within the 21- day appeal period. He also queried the operation of the QAS HR Policy in circumstances where he appealed the decision as follows: Good Afternoon, I am responding to the letter emailed to me yesterday regarding the internal review outcome for my Covid-19 vaccine exemption application. This is to notify QAS Workforce Reform that I will be preparing and lodging a public service appeal for external review of this decision with the Industrial Registry within the required timeframe of 21 days as set out in the outcome review letter. Could you please advise me if anything further is required of me within that time and what evidence is required that I have lodged my appeal for external review? Could you also please advise me if disciplinary action will be taken against me if I choose not to get a vaccine within 7 days but seek an external review within 21 days? These timeframes seem contradictory however it may be that I am interpreting them incorrectly. Your advice on this point will be greatly appreciated . (emphasis added) [25] The QAS sent email correspondence in response dated 25 March 2022 advising as follows: Hi Philip Thanks for your email. Please be advised that the QAS will receive written notification shortly after an Appeal is lodged. As such, no further information is required from you at this time in relation to any proposed appeal. Where you have not provided evidence of compliance with the lawful direction as outlined in your internal review outcome letter dated 23 March 2022, your matter will be referred to the authorised delegate for consideration of whether a ground for discipline exists. This may be progressed irrespective of the lodgement of the appeal and would always be considered on a case by case basis from the authorised delegate. -- 7 of 13 -- 8 [26] As noted above, Mr Fawcett then filed the public service appeal on 8 April 2022. The disciplinary process [27] Also on 8 April 2022, Mr Zsombok, A/Deputy Commissioner of Corporate and Statewide Services wrote to Mr Fawcett inviting him to show cause why a disciplinary finding should not be made against him in relation to the allegation. [28] Mr Fawcett was provided with 14 days to respond to the allegation. At the same time, Mr Zsombok also suspended Mr Fawcett from duty on normal remuneration and asked him to show cause why he should not be suspended without pay. [29] On 19 April 2022, Mr Fawcett emailed Mr Zsombok seeking an extension to the show cause process on the basis that the Commission was considering the appeal. [30] On 21 April 2022, Mr Zsombok provided an extension to Mr Fawcett until 26 April 2022 to respond to the proposed suspension without pay and until 3 May 2022 to respond to the allegation. [31] Following the mention of the matter on 26 April 2022, the QAS has agreed to pause the disciplinary process until the parties have made submissions to the Commission and the Commission has considered the matter. Relevant legislation and authorities [32] Section 566(1) of the Industrial Relations Act 2016 (Qld) ('the IR Act') bestows a discretionary power on the Commission to order a stay of a decision being appealed and is in the following terms: 566 Stay of decision appealed against (1) On an appeal, the industrial tribunal may order that the decision being appealed be wholly or partly stayed pending- (a) the determination of the appeal; or (b) a further order of the industrial tribunal. [33] In State of Queensland (Queensland Health) v The Regulator under the Work Health and Safety Act,5 his Honour O'Connor VP set out the principles governing the exercise of the discretionary power to stay a decision as follows: 5 [2021] QIRC 190. -- 8 of 13 -- 9 [ 10] The principles governing the exercise of a discretionary power to stay were enumerated in Alexander v Cambridge Credit Corporation Ltd. Those principles are summarised as follows: 1. The onus is upon the applicant to demonstrate a proper basis for a stay which will be fair to all parties. 2. The mere filing of an appeal does not demonstrate an appropriate case or discharge the onus. 3. The court has a discretion involving the weighing of considerations such as balance of convenience and the competing rights of the parties. 4. Where there is a risk that the appeal will prove abortive if the appellant succeeds and a stay is not granted, courts will normally exercise their discretion in favour of granting a stay. 5. The court will not generally speculate upon the appellant's prospect of success, but may make some preliminary assessment about whether the appellant has an arguable case, in order to exclude an appeal lodged without any real prospect of success simply to gain time. (citations omitted) [34] This approach was also implemented in Colebourne v State of Queensland (Queensland Police Service 6 ('Colebourne'), where his Honour Merrell DP held: [32] Section 566(1) of the IR Act confers an unfettered discretion on the Commission to grant a stay of a decision being appealed. [33] The parties agree on the relevant principles that apply, in determining whether or not to exercise discretion, to grant a stay. They are: • the onus is on the applicant to demonstrate a proper basis for a stay that will be fair to all parties; • the mere filing of an appeal will not, of itself, provide a reason or demonstrate an appropriate case, nor will it discharge the onus which the applicant bears; • the tribunal has a discretion whether or not to grant a stay and, if so, as to the terms that would be fair; • in the exercise of its discretion, the tribunal will weigh considerations such as the balance of convenience and the competing rights of the parties before it; • where there is a risk that the appeal will prove abortive if the applicant succeeds and a stay is not granted, tribunals will normally exercise their discretion in favour of granting a stay; • where it is apparent that unless a stay is granted, an appeal will be rendered nugatory, this will be a substantial factor in favour of the grant of a stay; and 6 [2021] QIRC 380 -- 9 of 13 -- 10 • although tribunals approaching applications for a stay will not generally speculate about the applicant's prospects of success, given that argument concerning the substance of the appeal is typically and necessarily attenuated, this does not prevent them considering the specific terms of a stay that will be appropriate fairly to adjust the interests of the parties, from making some preliminary assessment about whether the applicant has an arguable case. [34] The prospects of success will obviously tend to favour the refusal of a stay if the prospects of the appeal can be seen to be very poor. [35] In general, the balance of convenience involves a consideration of whether the inconvenience or injury which the applicant would be likely to suffer if a stay is refused outweighs or is outweighed by the injury which the respondent would suffer if a stay was granted. (citations omitted) Submissions [35] The QAS contends that there is no utility in granting a stay of the decision. In support of its position, the QAS relies on the decision of Colebourne. After referring to paragraph [30] of the Colebourne decision, the QAS submitted that the discretion conferred on the Commission to grant a stay is only in respect of '… the decision being appealed.' The QAS further contend that the only decision appealed by Mr Fawcett is 'the decision of the A/Assistant Commissioner Hammond on 17 February 2022 confirming the refusal of his application for an exemption and as a consequence, he was required to receive a COVID-19 vaccination.' [36] Further, the QAS contend that a stay of A/Assistant Commissioner Hammond's decision would not prevent the QAS from commencing a disciplinary process against Mr Fawcett. In this regard, it submits that a decision to commence a disciplinary process against an employee cannot be the subject of a public service appeal and refers to s 195(3A)(b) of the PS Act. [37] In the alternative, the QAS contends that the decision to confirm the refusal of Mr Fawcett’s exemption application was fair and reasonable. In this regard, it is contended that Mr Fawcett does not have an arguable case in the appeal. Relevantly the QAS submits that exemptions are considered in accordance with QAS’s obligations and have only been approved in exceptional circumstances. The QAS submits that Mr Fawcett did not demonstrate any exceptional circumstances that justified the granting of an exemption. [38] On the same basis, the QAS argue that the balance of convenience weighs in favour of not granting a stay. [39] In its further submissions filed on 29 April 2022, the QAS acknowledge that while the particulars of the allegation contained in the show cause letter dated 8 April 2022 refer -- 10 of 13 -- 11 to the exemption refusal and internal review decision, it submits that, whether the allegation is capable of being substantiated is not contingent on the internal review decision. Rather, the QAS contends that the delegate for the disciplinary process must independently determine whether Mr Fawcett contravened, without reasonable excuse, a direction to receive the prescribed number of doses of a COVID-19 vaccine in accordance with the requirements of the QAS HR Policy. The QAS submits that the fact that A/Assistant Commissioner Hammond confirmed the exemption refusal does not relieve Mr Zsombok of his obligation to independently determine whether Mr Fawcett contravened a direction given to him, without reasonable excuse. [40] The QAS further contends that in Mr Fawcett's response to the show cause process, he can make submissions as to why he has not complied with the direction to receive a COVID-19 that same. Those submissions will be considered independently by Mr Zsombok in determining whether Mr Fawcett has a reasonable excuse for his alleged failure to follow a lawful direction. [41] Mr Fawcett, in his submissions, argues that in '[c]onsidering the fact that I was in the process of seeking an external review by the QLD industrial relations Commission, my understanding was that disciplinary proceedings would only take place following that external review process. Further to this, I was also unaware that my remuneration was under threat prior to the external review process.' [42] Mr Fawcett argues that all he asks for is that the Commission be first able to consider the matter of the stay before he be required to respond to the show cause process. [43] The essence of Mr Fawcett's position can be extracted from the following submission: Put simply, I would not be required to show cause in any disciplinary process if my exemption had been granted. I am now following the process, as directed by QAS, to have the exemption decision reviewed. The decision that is being appealed in this matter (fair treatment regarding my application for vaccine exemption decision), is the basis for the show cause and disciplinary action. If I was granted an exemption, I would not be liable for discipline. Consideration [44] It is unclear on what basis the QAS considers that the Commission has before it an application for a stay of the decision to commence a disciplinary process. The relevant decision is the one that is the subject of this appeal. That decision is one that confirms an earlier decision to not grant Mr Fawcett an exemption from compliance with the QAS HR Policy and directs Mr Fawcett to produce evidence of having taken the first dose of a COVID-19 vaccine within seven days of the decision. [45] As noted above, the direction issued in the decision requires Mr Fawcett to produce evidence of having taken the first dose of a COVID-19 vaccine within seven days of the -- 11 of 13 -- 12 decision. The direction was clearly issued as a consequence of the confirmation of the earlier decision to not grant the exemption. It is trite to note, that had the exemption been granted, there would have been no basis for the direction to be issued. It is further trite to note, that had Mr Fawcett taken steps to comply with the direction within the seven days prescribed, then the appeal of the decision would have become otiose. [46] Relevantly, however, Mr Fawcett wrote to the QAS immediately upon receiving the decision and advised the QAS that he intended to file an appeal of the decision in accordance with the PS Act. He also asked for advice from the QAS with respect to whether disciplinary action will be taken against him if he chooses not to get a vaccine within seven days but seeks to appeal the decision within 21 days. Understandably, Mr Fawcett noted that the two time frames appeared to be 'contradictory'. [47] As noted above, the QAS wrote back to Mr Fawcett on 25 March 2022, advising him that where he has not provided evidence of compliance 'with the lawful direction as outlined in your internal review outcomes letter of 23 March 2022' such non-compliance would be referred to the authorised delegate for consideration of whether a ground for discipline exists. Mr Fawcett was advised that it may be progressed irrespective of the filing of an appeal. [48] As referred to above, a show cause process was subsequently commenced. [49] There are several issues that arise with respect to this matter: (a) The apparent incompatibility between providing Mr Fawcett with 21 days to file an appeal of the decision in accordance with the PS Act and the direction issued by the QAS for Mr Fawcett to receive the first dose of a COVID-19 vaccine within seven days of the decision;7 and (b) The QAS’s requirement that Mr Fawcett show cause as to why a disciplinary finding should not be made against him in circumstances where the particulars of the allegation relied on by the QAS include the decision which is the subject of this appeal before the Commission. It is that decision that Mr Fawcett contends is not fair and reasonable and should be set aside. [50] The QAS has confirmed before the Commission that it is not willing to place the disciplinary process in abeyance whilst the appeal of the exemption decision is before the Commission. This places the parties in the unfortunate position of contending with the appeal proceedings which will include making submissions as to whether the decision 7 Although one path, perhaps an obvious one, to circumnavigate the apparent incompatibility, would be for the QAS to wait for the expiration of the 21-day appeal period before considering whether a disciplinary process could be commenced for a failure to comply with the direction. If no appeal was filed within the 21-day period, then such a consideration could be made by the QAS immediately. If an appeal was filed, then the consideration could be made after the appeal was determined. -- 12 of 13 -- 13 is fair and reasonable, whilst at the same time contending with the disciplinary process in which the QAS seeks to rely on the outcome of the decision (which is the subject of this appeal), inter alia, to put the allegation to Mr Fawcett. [51] I consider that the continuation of the show cause process whilst the appeal is on foot, has the potential, at least, to render the possible orders ultimately made on appeal as nugatory. It also has the potential to prejudice Mr Fawcett’s position by placing him in a position where the show cause process is proceeding, in part, on the basis of the decision which is the subject of this appeal. [52] However, despite my concerns about these matters, I have ultimately concluded that the decision is not one which, at this point in time, can be stayed. The reason being is that the decision was comprised of two components, firstly the decision to confirm the earlier decision to refuse the exemption application and secondly the direction to Mr Fawcett. The direction provided Mr Fawcett with seven days to comply with it. The effect of that direction is that the time to comply with it expired on or about 30 March 2022. This date preceded the filing of the appeal by Mr Fawcett. If a stay was to have been granted, then it should have been issued prior to the expiration of the seven days which have now passed. [53] However, my conclusion that there is no practical utility in granting a stay at this time, should not be construed in such a way so as to conclude that the concerns articulated in these reasons should not be given any weight or proper consideration. I am concerned that the submissions made by the QAS fail to have regard to the potential substantive and procedural fairness issues that might arise in circumstances where the QAS relies on a decision, which is the subject to an appeal before the Commission, to particularise an allegation with respect to a show cause process. [54] Progressing in such a manner has the potential to result in outcomes which might be considered, at the very least, unfortunate. To have the two matters proceed in parallel may result in their being outcomes that are inconsistent with each other. For example, if the Commission were to, on the appeal, set the decision aside, that may potentially render any disciplinary finding and/or proposed disciplinary action as unfair and/or unreasonable. [55] Such an outcome is avoidable, however, by the QAS simply pausing the show cause process whilst awaiting the outcome of the public service appeal. Order [56] For the foregoing reasons, I make the following order: The application for a stay is dismissed. -- 13 of 13 --