Crothers v State of Queensland (Queensland Police Service) [2022] QIRC 97

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Crothers v State of Queensland (Queensland Police Service) [2022] QIRC 097 PARTIES: Crothers, Fiona (Appellant) v State of Queensland (Queensland Police Service) (Respondent) CASE NO: PSA/2021/425 PROCEEDING: Public Service Appeal DELIVERED ON: 22 March 2022 MEMBER: Knight IC HEARD AT: On the papers Final submissions filed 21 January 2022 ORDER: The application to allow the appeal to be started within a longer period is refused. CATCHWORDS: PUBLIC SERVICE – EMLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL – appeal against a decision to suspend without normal remuneration – where appeal commenced out of time – whether appeal should be allowed to be commenced within a longer period – application refused LEGISLATION AND INSTRUMENTS: Directive 16/20 Suspension Industrial Relations (Tribunal) Rules 2011 (Qld) r 226 Industrial Relations Act 2016 (Qld) ss 562B, 564 Instrument of Commissioner's Direction No. 12 paras 6, 7, 8, 9, 15 -- 1 of 15 -- 2 Instrument of Commissioner's Direction No. 14 Police Service Administration Act 1990 (Qld) ss 2.5, 4.9 Privacy Act 1988 (Cth) Public Service Act 2008 (Qld) ss 119, 197 CASES: Benson v State of Queensland (Department of Education) [2021] QIRC 152 Biel v Mansell (No 1) [2006] 2 Qd R 199 Brasell-Dellow & Ors v State of Queensland, (Queensland Police Service) & Ors [2021] QIRC 356 Breust v Qantas Airways Ltd (1995) 149 QGIG 777 Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298 Crandon v Queensland Bulk Water Supply Authority t/as Seqwater [2021] QIRC 248 Erhardt v Goodman Fielder Food Services Limited (2000) 163 QGIG 20 Forsyth-Stewart v State of Queensland (Department of Education) [2021] QIRC 395 Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018) House v The King (1933) 48 CLR 565 Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 Lloyd v Department of Communities, Child Safety and Disability Services [2013] QIRC 129 Patterson v Medical Benefits Fund of Australia Limited (1998) 159 QGIG 232 Sandhu v Wide Bay Hospital and Health Service [2019] QIRC 182 Tucker v State of Queensland (Department of Health) [2021] QIRC 145 Ulowski v Miller (1968) SASR 227 -- 2 of 15 -- 3 Reasons for Decision [1] Mrs Fiona Crothers is employed by the State of Queensland through the Queensland Police Service ('the Service') as an Administration Officer (AO3), within the Sunshine Coast District, North Coast Region. [2] Mrs Crothers is employed as a staff member of the Service within the meaning of s 2.5 of the Police Service Administration Act 1990 (Qld) ('the Act') and is appointed as an officer of the public service pursuant to s 119 of the Public Service Act 2008 (Qld) ('the PS Act'). [3] On 7 September 2021, pursuant to s 4.9 of the Act, the Commissioner of the Service ('the Commissioner') issued the Instrument of Commissioner's Direction No. 12, concerning the mandatory COVID-19 vaccination and mask requirements for police officers and certain staff members retained by the Service ('Direction No. 12').1 [4] Paragraph 6 of Direction No. 12 relevantly provides that it applies to all staff members appointed pursuant to s 119 of the PS Act and who are frontline staff members, or frontline support staff members, as defined in paragraph 15 of the direction. [5] Relevantly, the term 'frontline support staff member' is defined exhaustively under paragraph 15 of Direction No. 12 as: ... [A] staff member who has a 'non-corporate services' role and who provides essential support, enabling the effective delivery of frontline services, including services performed at Communications Centres, Policelink, fleet maintenance facilities and Queensland Government Air (QGAir). [6] Paragraph 7 of Direction No. 12 provides that unless a staff member, to whom Direction No. 12 applies, is exempt under paragraph 8 or 9, all such staff members must receive at least one dose of a COVID-19 vaccine by 4 October 2021, receive a second dose of a COVID-19 vaccine by 24 January 2022, and provide evidence of receiving a COVID-19 vaccine if requested by the Commissioner or the Commissioner's delegate. [7] The direction provides an exemption from vaccination requirements if the police officer or staff member is unable to be vaccinated due to a medical contraindication and they provide medical evidence to this effect in accordance with the direction, or if the Commissioner or the Commissioner's delegate grants an exemption due to a genuine religious objection or due to other exceptional circumstances. [8] Mrs Crothers did not provide evidence of having received at least one dose of a COVID-19 vaccination to the Service by the relevant date, nor did she obtain an exemption from doing so. 1 I note Direction No. 12 was superseded by Instrument of Commissioner's Direction No. 14 on 14 December 2021, however, the latter is not relevant for present circumstances and, in any event, the pertinent parts are in materially the same terms as the earlier direction. -- 3 of 15 -- 4 [9] In a decision letter dated 11 November 2021, which Mrs Crothers maintains she received on 15 November 2021, A/Assistant Commissioner, Ethical Standards Command, Virginia A Nelson APM informed Mrs Crothers she would be suspended without remuneration from midnight on 19 November 2021 until 18 May 2022, unless revoked sooner ('the Decision'). [10] By appeal notice filed 14 December 2021, Mrs Crothers appeals the Decision under ch 7 pt 1 of the PS Act. Such an appeal proceeds under ch 11 pt 6 div 4 of the Industrial Relations Act 2016 (Qld) ('the IR Act').2 It is not by way of rehearing, but rather involves a review of the decision arrived at and the decision-making process therein.3 Its stated purpose is to decide whether the decision appealed against was fair and reasonable in all the circumstances.4 [11] At best, if I accept Mrs Crothers' position she did not receive the decision letter until 15 November 2021, the appeal was filed eight days out of time. [12] Consequently, within her appeal notice, Mrs Crothers has sought an extension of time in which to commence her appeal. [13] Section 564(1) of the IR Act requires an appeal to the Commission to be commenced within 21 days of receiving the decision appealed against. However, sub-s (2) provides that, on application, the Commission may allow an appeal to be commenced within a longer period. [14] The question for my determination is whether I should allow Mrs Crothers to commence her appeal out of time. The Decision [15] Within the Decision, under the heading 'Suspension without remuneration' Mrs Crothers was informed of the terms of her suspension which included the following with respect to the resources available to her: ... You are advised: (i) a Senior Psychologist/Social Worker is available to all Service employees to provide confidential counselling and support. Should you wish to access these services, please contact the personnel officer within your Region or Command or access the Employee Wellbeing webpage on the QPS intranet or at https://wellbeing.ourpeoplematter.com.au; (ii) you may also wish to seek assistance from your Union; (iii) the provisions of the Code of Conduct and other Service policies continue to apply to you during your suspension; 2 Public Service Act 2008 (Qld) s 197. 3 Industrial Relations Act 2016 (Qld) s 562B(2); Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5 ('Goodall'). 4 Industrial Relations Act 2016 (Qld) s 562B(3). -- 4 of 15 -- 5 (iv) Directive 16/20: Suspension directive (enclosed) also applies to your suspension and provides for periodic review of your suspension (see clause 8). You may also ask the Public Service Commissioner to conduct a review of your suspension in certain circumstances (see clause 9). (v) if you believe the decision to suspend you without normal remuneration is unfair or unreasonable, you may appeal the decision to the Queensland Industrial Relations Commission (QIRC) under section 196(bb) of the Act. Any appeal must be made within 21 days of the decision. The QIRC Industrial Registry will be able to assist with further information about public service appeal procedures. Further information on appeal rights can be obtained at the QIRC website (www.qirc.qld.gov.au) or by telephoning 1300 592 987 or (07) 3227 8060.5 Grounds for the Application [16] In her appeal notice, Mrs Crothers sets out the grounds for seeking an extension of time to file her appeal as follows: As a result of the allegations of misconduct laid against me by my employer for non-compliance with the vaccine mandate and being served a Notice of Suspension without Remuneration, I have been suffering from anxiety and stress in the immediate days following the serving of the Notice and was not of fit or able mind to pursue and apply for an Appeal against the decision. I obtained a Medical Certificate on the 6th Dec. I now feel of fit mind to be able to proceed with the Appeal notice and I apologise for the delay in submitting my Appeal Notice. Relevant Principles [17] The IR Act relevantly provides: 564 Time limit for appeal (1) An appeal against a decision to an industrial tribunal must be started, as required under the rules, within the appeal period. (2) However, on an application made during or after the appeal period, the industrial tribunal may allow an appeal to be started within a longer period. (3) In this section— appeal period, for an appeal against a decision to an industrial tribunal, means the period within 21 days after— ... (d) if, under another Act, the decision is given in another way—the decision is given in the other way. [18] The power to extend time to appeal is fundamentally an exercise of discretion, being the statutory power conferred by s 564(2) of the IR Act.6 Although seemingly unfettered, the discretion must be exercised judicially, according to the rules of reason and justice.7 5 Emphasis added. 6 Breust v Qantas Airways Ltd (1995) 149 QGIG 777, 778 ('Breust'). 7 Biel v Mansell (No 1) [2006] 2 Qd R 199, 207; House v The King (1933) 48 CLR 565, 503. -- 5 of 15 -- 6 [19] In considering whether to allow an appeal to be lodged out of time, the Commission will be guided by relevant, albeit non-exhaustive, principles that inform the exercise of the discretion.8 [20] The factors relevant to considering whether the Commission ought to exercise its power to grant an extension of time are generally well established.9 [21] In Ulowski v Miller,10 Bray CJ considered that in exercising its discretion to allow an extension of time, the Court should not be fettered by any absolute or inflexible rules. However, his Honour then observed that, generally, the five paramount factors the Court will have regard to are the: (a) length of the delay; (b) explanation for the delay; (c) prejudice to the applicant if the discretion is not exercised; (d) prejudice to the respondent if the discretion is exercised; and (e) conduct of the respondent. [22] These factors where endorsed by the Commission in Breust v Qantas Airways Ltd,11 and expanded in Erhardt v Goodman Fielder Food Services Limited,12 where Linnane VP relevantly considered: (a) a statutory timeframe ought to be respected; and (b) the applicant's substantive prospects of success are always a relevant matter. That is, where it appears the applicant has no or limited prospects of success the Commission should not grant an extension of time.13 [23] Similar guiding principles were also referred to by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen,14 namely, that: (a) special circumstances need not be shown, but an application for extension must show an acceptable explanation for the delay and that it is fair and equitable in the circumstances to extend time; 8 Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, 348 ('Hunter Valley'); Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298, 299-300; recently endorsed by the Commission in Forsyth-Stewart v State of Queensland (Department of Education) [2021] QIRC 395, [17] ('Forsyth-Stewart'). 9 Lloyd v Department of Communities, Child Safety and Disability Services [2013] QIRC 129, [3]-[5]; Sandhu v Wide Bay Hospital and Health Service [2019] QIRC 182, [31]-[32]. 10 (1968) SASR 227, 280. 11 Breust (n 6). 12 (2000) 163 QGIG 20. 13 Ibid 21, citing Patterson v Medical Benefits Fund of Australia Limited (1998) 159 QGIG 232. 14 Hunter Valley (n 8). -- 6 of 15 -- 7 (b) action taken by the applicant, other than by making an application under the relevant Act, is relevant to the consideration of the question of whether an acceptable explanation for the delay has been furnished; (c) any prejudice to the respondent, including any prejudice in defending the proceedings occasioned by the delay, is a material factor militating against the grant of extension, although the mere absence of prejudice is not enough to justify the grant of an extension; (d) the merits of the substantive application are properly to be taken into account in considering whether an extension of time should be granted, and considerations of fairness as between the applicant and other persons in a like position are relevant to the exercise of discretion.15 [24] In making my decision I will be guided by the principles set out above. Length of Delay [25] As touched on earlier, Mrs Crothers' appeal was filed eight days out of time, although I note the Service maintains it was nine days. Mrs Crothers characterised the delay as a 'short delay',16 whereas the Service noted that delays of similar length have been held to be significant.17 Consideration – Length of Delay [26] The means by which dates are calculated are practically explained by McLennan IC in Benson v State of Queensland (Department of Education).18 I do not consider it necessary to repeat those comments here. [27] In any event, it is not necessary to determine whether the appeal was in fact filed eight days late, or nine days late, because I consider that, either way, this is an unreasonable delay. Explanation for the Delay [28] Mrs Crothers explains that she is unfamiliar with the realm of industrial relations and disciplinary action, having not had previous experience with such matters.19 She therefore submits she was unaware of the statutory timeframe and consequences for non-compliance.20 Mrs Crothers noted she is not a member of a union and therefore not in a position to obtain support,21 and that on her suspension the Service disabled her 15 Ibid 348-349. 16 Mrs Crothers' submissions filed 4 January 2022, [2]. 17 Service's submissions filed 10 January 2022, [6] citing Forsyth-Stewart (n 8) [18]; Tucker v State of Queensland (Department of Health) [2021] QIRC 145, [28]. 18 [2021] QIRC 152, [61]-[63]. 19 Mrs Crothers' submissions filed 4 January 2022, [5]. 20 Ibid. 21 Ibid [12]. -- 7 of 15 -- 8 access to her work account such that she had no access to the Service's policies or procedures to otherwise assist her.22 [29] Further, she submits she experienced stress and anxiety as a result of the disciplinary process and documents served on her such that she was not fit or able to comprehend the material and respond within the statutory timeframe.23 [30] In this respect, Mrs Crothers states there were at least three disciplinary actions within a 15 day period in November 2021 which caused her severe emotional and psychological stress rendering her unable to function in a normal manner.24 In support of this claim, Mrs Crothers explains she was required to attend her doctor on 17 November 2021, suffering from anxiety and stress, and subsequently obtained a medical certificate indicating she was unfit for work between 6 December 2021 and 6 January 2022.25 [31] The Service contends Mrs Crothers has not disclosed extraordinary personal circumstances, such as a major health issue or natural disaster, which explain the delay.26 [32] Instead, it argues Mrs Crothers' claims of stress and anxiety are not supported by clear medical evidence, noting the medical certificate provided offers limited information.27 [33] Moreover, it submits that during the appeal period Mrs Crothers was of sufficiently sound mind to communicate with representatives of the Service, including for the purpose of rescheduling disciplinary interviews.28 [34] Although the Service acknowledges Mrs Crothers was contacted concerning the suspension process and concurrent disciplinary action, it denies that contact was a form of duress, submitting it simply took necessary steps to communicate with Mrs Crothers about the ongoing processes.29 [35] With respect to disabling her accounts, the Service notes it is its usual practice to disable access when an employee is suspended.30 [36] It argues Mrs Crothers did not require access to her accounts to file her appeal, noting she was provided a copy of the decision she is appealing.31 22 Ibid [13]. 23 Ibid [6]-[7]. 24 Ibid, [9]. 25 Ibid Attachment 1. 26 Service's submissions filed 10 January 2022, [7]. 27 Ibid [9]. 28 Ibid [11]. 29 Ibid [10]. 30 Ibid [12]. 31 Ibid. -- 8 of 15 -- 9 [37] The decision letter itself, the Service highlights, includes details of the appeal avenues available, including the relevant timeframes and information on where to seek further advice from the Commission.32 [38] The Service submits the decision letter also sets out the support available to Mrs Crothers during the suspension process, including access to a psychologist and social worker for confidential counselling, and contact details within the Ethical Standards Command unit who she could have contacted to allay her concerns and seek further information.33 [39] In reply submissions, Mrs Crothers clarifies that she did not consider the mere act of contacting her to be a form of duress, rather it was the number of times she was contacted in a short period which she considers to be a concerted effort to place her under pressure to comply or resign.34 [40] Mrs Crothers also maintains she was not of sound or able mind at the relevant time, noting she communicated with the Service's discipline unit through her officer in charge, rather than personally.35 Consideration – Explanation for the Delay [41] As I understand her submissions, Mrs Crothers raises three reasons for the delay: (a) severe emotional and psychological stress as a consequence of the disciplinary process rendering her unable to function in a normal manner; (b) the fact that she was unaware of the statutory timeframe to bring the appeal; and (c) lack of access to the Service's policies and procedures and external support such as, for example, union representation. [42] While I have some sympathy for the distress Mrs Crothers has no doubt experienced throughout this process, I do not consider this to be an adequate explanation for her delay in filing her appeal. A degree of anxiety and distress is inherent in most, if not all, disciplinary processes regardless of the circumstances giving rise to them. [43] In support of her submissions that the stress she experienced was significant enough to disturb her normal function, Mrs Crothers provided a medical certificate noting she was not fit for work between the period 6 December 2021 and 6 January 2022. [44] The difficulty I have with this approach, is that this period was after the appeal period had already lapsed. That is, Mrs Crothers was required to file her appeal on or before 6 December 2021. There is no material before me which supports her contentions that 32 Ibid [13]. 33 Ibid [14]. 34 Mrs Crothers' reply submissions filed 21 January 2022, [4]. 35 Ibid [5]. -- 9 of 15 -- 10 she was so unwell she was unable to function during the period in which she had to file her appeal. Although Mrs Crothers maintains she attended her doctor on 17 November 2021, she has not provided a medical certificate or any other evidence in support of her claim. [45] Likewise, I am not satisfied the fact she chose to communicate with the discipline unit of the Service through her officer in charge demonstrates she was so unwell she was unable to function. [46] I also do not accept merely being unaware of the statutory timeframe is an acceptable explanation. This timeframe is quite clearly identified in the decision letter outlining her appeal rights (see at [15] above). [47] Finally, I am not persuaded it was necessary for Mrs Crothers to have access to her work accounts to obtain the relevant information and support she required. As with the timeframe to appeal, the decision letter clearly identified resources available to Mrs Crothers, including psychological support and counselling. [48] Consequently, on balance, I am not satisfied Mrs Crothers has disclosed an adequate explanation for the delay in filing her appeal. Prejudice to the Parties [49] Mrs Crothers submits the Service is not prejudiced by the delay.36 Rather, she argues that refusal to allow her appeal out of time may result in a miscarriage of justice in that the issue of what constitutes a lawful direction will not be heard and determined by the Commission.37 [50] The Service acknowledges Mrs Crothers may be prejudiced by the refusal to allow her appeal out of time, but argues the substantive appeal is without merit in any event.38 It made no submissions as to any prejudice the Service may experience. Consideration – Prejudice to the Parties [51] I am cognisant of the fact that it is a serious matter to deprive a person of the opportunity to lawfully challenge a decision on appeal. I accept Mrs Crothers' submissions that the delay has not caused prejudice to the Service, particularly in circumstances where it also identified no prejudice. [52] I also accept Mrs Crothers may suffer prejudice if I refuse to allow her appeal to be commenced out of time. However, having regard to Mrs Crothers' prospects of success, 36 Mrs Crothers' submissions filed 4 January 2022, [2]. 37 Ibid [3]. 38 Service's submissions filed 10 January 2022, [15]. -- 10 of 15 -- 11 I consider the prejudice likely to be suffered by her is limited. I will return to her prospects below. Conduct of the Service [53] The Service submits the decision letter included clearly worded and comprehensive information on the appeal avenues and other support available to Mrs Crothers.39 It also submits it is open to communication with Mrs Crothers and has considered and accepted her requests to reschedule disciplinary interviews.40 Consideration – Conduct of the Service [54] I am satisfied the Service has taken adequate steps to apprise Mrs Crothers of her appeal rights, including the statutory timeframe. Consequently, I do not consider the Service has conducted itself in such a manner as to support Mrs Crothers' application for an extension of time. Statutory Timeframe [55] As already set out above, Mrs Crothers submits she was unaware of the statutory timeframe, whereas the Service maintains this information was provided to her. Consideration – Statutory Timeframe [56] As is clear from s 564 of the IR Act, an appeal, including a public service appeal, must be brought within the appeal period unless the Commission allows the appeal to be started at a later time. [57] Mrs Crothers did not file her appeal within 21 days of receiving the Decision. That failure is not merely an irregularity which can be rectified under r 226 of the Industrial Relations (Tribunal) Rules 2011 (Qld).41 [58] There is nothing in the material before me which suggests the statutory timeframe ought to be supplanted. Prospects of Success [59] Mrs Crothers submits that if her appeal is not allowed out of time, there may be a miscarriage of justice in that the Commission will not hear and determine the question of 'what is a lawful direction'.42 39 Ibid [16]. 40 Ibid [17]. 41 Crandon v Queensland Bulk Water Supply Authority t/as Seqwater [2021] QIRC 248, [14]. 42 Mrs Crothers' submissions filed 4 January 2022, [3]. -- 11 of 15 -- 12 [60] The Service submits that a public service appeal proceeds by way of review to determine whether the decision, and the associated decision-making process, were fair and reasonable.43 [61] Consequently, it argues the issue on appeal is very narrow, in that it is limited to whether it was fair and reasonable for the decision-maker to exercise their discretion to suspend Mrs Crothers without remuneration, having regard to the nature of the discipline process against her and the requirements set out in Direction No. 12.44 [62] The Service argues Mrs Crothers' appeal grounds focus on the efficacy and side effects of COVID-19 vaccines and the lawfulness of Direction No. 12.45 [63] In respect of the former, the Service argues these matters are not relevant to the issue on appeal, and in respect of the latter, the Service relies on the decision in Brasell-Dellow & Ors v State of Queensland, (Queensland Police Service) & Ors46 ('Brasell- Dellow').47 [64] The Service maintains the Decision was fair and reasonable in circumstances where:48 (a) Mrs Crothers was informed of the intention to issue Direction No. 12 on 2 September 2021, well in advance of the 4 October 2021 date for obtaining the first dose of a COVID-19 vaccination; (b) Mrs Crothers did not seek to obtain an exemption, despite subsequently citing a medical condition in her appeal notice; (c) the decision-maker considered alternative duties available for Mrs Crothers; (d) Mrs Crothers has been afforded natural justice throughout the suspension process; (e) the nature of the alleged conduct giving rise to her suspension is serious and the evidence compelling; and (f) the decision letter sets out clear evidence and includes an intelligible justification. [65] In reply submissions, Mrs Crothers questions under which specific legislation Direction No. 12 is considered to be lawful, submitting all contractual agreements prohibit any unlawful directions or actions, or the promotion of any unlawful directions or actions, at all times.49 43 Service's submissions filed 10 January 2022, [19] citing Industrial Relations Act 2016 (Qld) ss 562B(2), (3); Goodall (n 3). 44 Ibid [20]. 45 Ibid [21]. 46 [2021] QIRC 356 ('Brasell-Dellow'). 47 Service's submissions filed 10 January 2022, [21]. 48 Ibid [22]-[24]. 49 Mrs Crothers' reply submissions filed 21 January 2022, [1]. -- 12 of 15 -- 13 [66] She also argues her personal medical information, including vaccination status, is protected under legislation, including the Privacy Act 1988 (Cth).50 In the same submissions, Mrs Crothers raises concerns with respect to the constitution and qualification of members of the Service's vaccination exemption committee and notes she provided the Service with a letter from her doctor indicating she has a heart condition.51 [67] Finally, Mrs Crothers argues the Service has considered its health and safety objectives, reputation, and financial obligations, outweigh her human rights.52 In this respect, as best I understand, she argues the Service has failed to properly consider the causative link between non-vaccination and serious harm to others in determining medical coercion, by way of mandated vaccination, is a proportional response to COVID-19.53 Consideration – Prospects of Success [68] As touched on earlier, a public service appeal to the Commission is by way of review of the decision appealed against. My role is to decide whether the decision to suspend Mrs Crothers without remuneration was fair and reasonable. [69] Mrs Crothers challenges Direction No. 12 as unlawful and inconsistent with other legislation. She has also raised concerns about the efficacy of the vaccines and adverse side-effects. [70] However, as highlighted by the Service, the lawfulness of Direction No. 12 was considered and accepted by this Commission in Brasell-Dellow where the Full Bench determined: ... [O]n a proper construction of [the Act] as a whole, and taken in the context of the [Service] being maintained as a disciplined force: 1. within the restrictions that have been explained, the Commissioner may give a lawful direction to employees; 2. the direction is given by the Commissioner in her capacity as the effective employer of the employees; 3. unless there is 'reasonable excuse' not to comply, the employee must comply.54 [71] On September 2021, the Commissioner sent an email to all police officers and affected staff members advising that all staff to whom Direction No. 12 applies were required to provide proof of receiving at least one COVID-19 vaccination to their Officer in Charge or Manager by 4 October 2021. [72] Having regard to the time frames involved, I am satisfied Mrs Crothers was provided with adequate notice of the requirement to obtain a vaccination. There is no question in 50 Ibid [3]. 51 Ibid [7]. 52 Ibid [8]. 53 Ibid. 54 Brasell-Dellow (n 46) [84]. -- 13 of 15 -- 14 this matter, that having been provided with notice, Mrs Crothers did not provide the requisite proof within the nominated timeframe. [73] In the same period, Mrs Crothers was provided with the option to apply for an exemption and information as to how to apply for an exemption. It is not in contention Mrs Crothers was aware she could apply for an exemption, but did not. [74] On 8 October 2022, Mrs Crothers was provided with a suspension notice and show cause notice for suspension without remuneration and afforded seven days to respond in writing showing cause as to why she should not be suspended without pay, in circumstances where she had not complied with Direction No. 12. [75] On the materials before me, it is not in issue that the Service has complied with its procedural obligations and afforded Mrs Crothers the opportunity to respond to the allegations against her within a reasonable time. [76] I am satisfied the Service has had sufficient regard to Mrs Crothers' response to the show cause notice, which was summarised in its reasons for decision. Likewise, the decision-letter contains an explanation from the Service as to why it considered the limitations placed on Mrs Crothers, as a result of Direction No. 12, were reasonable and justified. [77] I am also satisfied the decision-maker considered alternative duties for Mrs Crothers and adequately communicated the reasons why an alternative role was not available due to the nature of her role and existing duties. [78] In circumstances where the lawfulness of Direction No. 12 has been considered and accepted by this Commission, where there is no question Mrs Crothers did not provide the Service with proof of her vaccination by the nominated date, where she did not apply for an exemption and where she was afforded the opportunity to respond to the show cause notice within a reasonable timeframe, I consider her prospects of success are limited. Conclusion [79] Mrs Crothers bears the onus of establishing she ought to be allowed to commence her appeal within a longer period. In my view, and as reflected above, she has not discharged that onus for several reasons: (a) Mrs Crothers filed her appeal either eight or nine days out of time, which is a significant delay; (b) Mrs Crothers has not disclosed an adequate explanation for the delay; -- 14 of 15 -- 15 (c) although I accept that Mrs Crothers may suffer some prejudice in being denied the opportunity to appeal the Decision, I consider that prejudice is limited having regard to her prospects of success; (d) I am satisfied the Service took adequate steps to inform Mrs Crothers of her appeal rights, including the statutory timeframe to bring the appeal, and there has not been conduct on behalf of the Service which supports allowing the appeal out of time; (e) the statutory timeframe within which to commence a public service appeal is clear, and must be respected; and (f) having regard to the material presently before me, including Mrs Crothers' appeal notice, I consider her prospects of success in the substantive matter are very low. [80] Consequently, I am not satisfied that I ought to extend time for Mrs Crothers to pursue her appeal. [81] I order accordingly. Order The application to allow the appeal to be started within a longer period is refused. -- 15 of 15 --