Clarke v State of Queensland (Queensland Health) [2022] QIRC 89

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Clarke v State of Queensland (Queensland Health) [2022] QIRC 089 PARTIES: Clarke, Deborah Jane (Appellant) v State of Queensland (Queensland Health) (Respondent) CASE NO.: PSA/2022/113 PROCEEDING: Public Service Appeal DELIVERED ON: 17 March 2022 HEARD AT: On the papers MEMBER: McLennan IC ORDER: 1. The appeal is dismissed for want of jurisdiction. CATCHWORDS: LEGISLATION: PUBLIC SERVICE - EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY - PUBLIC SERVICE APPEAL - where appellant applied for an exemption to the Health Employment Directive No. 12/21 - where respondent refused appellants exemption application - where appellant applied for internal review of refusal to grant exemption - where upon review the respondent upheld the original refusal - where appellant filed appeal out of time - whether timeframe for appeal should be extended - consideration of explanation for delay - consideration of prejudice - where prospects of success are limited Industrial Relations Act 2016 (Qld) s 564 Public Service Act 2008 (Qld) s 187, s 194 -- 1 of 15 -- 2 CASES: Health Employment Directive No. 12/21 cl 7, cl 8, cl 10 Anthony v Chief Executive, Department of Natural Resources [2000] QLC 72 Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 Breust v Qantas Airways Ltd (1995) 149 QGIG 777 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 Bruce Anthony Piggott v State of Queensland [2010] ICQ 35 Geoffrey John Erhardt v Goodman Fielder Food Services Limited (1999) 163 QGIG 20 Graffunder v State of Queensland (Queensland Health) [2022] QIRC 076 Higgins v State of Queensland (Queensland Health) [2022] QIRC 030 House v The King (1936) 55 CLR 499 Hutchison v State of Queensland (Queensland Health) [2021] QIRC 317 Lloyd v Department of Communities, Child Safety and Disability Services [2013] QIRC 129 Megan Reimers v Aramaki Company (Australia) t/a Camira Child Care Centre [2002] 170 QGIG 1010 Roger Carter Paterson v Medical Benefits Fund of Australia Limited (1998) 159 QGIG 232 Tonia Shelley v McRoberts Agency [2009] 190 QGIG 189 -- 2 of 15 -- 3 Reasons for Decision Introduction [1] Mrs Deborah Clarke (the Appellant) is employed by Queensland Health, State of Queensland (the Respondent) as a Dental Assistant at Woolloongabba Oral Health Centre.1 [2] The Health Employment Directive No. 12/21 (Directive 12/21) mandates, inter alia, that particular groups of health service employees must receive the COVID-19 vaccine.2 [3] Directive 12/21 became effective from 11 September 2021.3 [4] Relevantly, cl 8 of Directive 12/21 provides the following: 8.1 Existing employees currently undertaking work or moving not 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. An existing employee must provide to their line manager or upload into the designated system: a. evidence of vaccination confirming that the employee has received at least the first dose of a COVID-19 vaccine by no later than 7 days after receiving the vaccine. b. Evidence of vaccination confirming that the employee has received the second dose of a COVID-19 vaccine by no later than 7 days after receiving the vaccine. … The requirements of this clause 8 do not apply to existing employees who have been granted an exemption under clause 10 of this HED. [5] The Respondent categorised Mrs Clarke's role as falling within "Group 2" under cl 7.1 of Directive 12/21 which covers employees who work in a hospital or other facility where clinical care or support is required.4 [6] On 30 September 2021, Mrs Clarke submitted three separate exemption applications under cl 10.2 of Directive 12/21, summarised as follows:5 • a recognised medical contraindication - Mrs Clarke attached a letter from a General Practitioner, Dr Mathura Sudhakar; • a genuinely held religious belief - Mrs Clarke attached a letter from Mr Mark Mackay, Senior Pastor at Forest Lake Baptist Church; and 1 Appeal Notice, 25 January 2022, 1. 2 Health Employment Directive No. 12/21 cls 1, 7-8. 3 Ibid 1. 4 Respondent's Submissions, 11 February 2022, 2 [18]. 5 Letter from Mrs D. Clarke to the Respondent, 30 September 2021; Respondent's Submissions, 11 February 2022, 3 [21]. -- 3 of 15 -- 4 • other exceptional circumstances - Mrs Clarke attached a letter outlining her reasons in support of this request. [7] On 2 October 2021, the Respondent advised Mrs Clarke that her exemption application will be processed and she may be liable for disciplinary action pursuant to s 187(1)(d) of the Public Service Act 2008 (Qld) (the PS Act).6 [8] On 15 December 2021,7 the Respondent advised Mrs Clarke of its decision to refuse her exemption application. This original refusal was conveyed in correspondence from Mr Dave Waters, Executive Director Human Resources at Metro South Health (MSH).8 [9] On 20 December 2021, Mrs Clarke requested an internal review of the decision to deny her exemption application.9 [10] On 23 December 2021, the Respondent advised Mrs Clarke that an internal review of the original exemption refusal had been conducted and the Respondent had determined to further deny her exemption request (the Exemption Decision). The Exemption Decision was conveyed in correspondence from Dr Michael Cleary, A/Chief Operating Officer at MSH.10 [11] On 25 January 2022, Mrs Clarke filed an Appeal Notice with the Industrial Registry. Jurisdiction The decision subject of this appeal [12] On p 3 of the Appeal Notice, Mrs Clarke identifies the type of decision being appealed: I am appealing a decision made (or failed to be made) under a directive issued in accordance with s53, s54 or s54A of the Public Service Act 2008 which allows me to appeal. I have used my employer's individual employee grievances process before lodging this appeal. Please provide the directive: HED 12/21 [13] Section 194 of the PS Act identifies the categories of decisions against which an appeal may be made. Section 194(1)(a) of the PS Act provides that an appeal may be made against "a decision to take, or not take, action under a directive". However, as Deputy President Merrell noted in Higgins v State of Queensland (Queensland Health),11 Directive 12/21 does not allow employees to appeal. Upon review of Directive 12/21, I agree and conclude that the Exemption Decision is more appropriately characterised as a "fair treatment decision", i.e., a decision which Mrs Clarke contends is unfair and 6 Letter from Mr P. Bristow, Health Service Chief Executive to Mrs D. Clarke, 2 October 2021. 7 Respondent's Submissions, 11 February 2022, 3 [27]. 8 Letter from Mr D. Waters to Mrs D. Clarke, 10 December 2021. 9 Letter from Mrs D. Clarke to the Respondent, 20 December 2021. 10 Letter from Dr M. Cleary to Mrs D. Clarke, 23 December 2021. 11 [2022] QIRC 030, 4 [12]. -- 4 of 15 -- 5 unreasonable and which is appealable under s 194(1)(eb) of the PS Act. On that basis, I am satisfied the Exemption Decision is appealable. [14] Although not entirely clear on the submissions presented in the Appeal Notice, it appears Mrs Clarke may also intend to broadly appeal the disciplinary process. I have discerned that from Mrs Clarke's comment that she is now making "an external appeal to the Queensland Industrial Relations Commission (QIRC) to review the decision to progress a disciplinary pathway that may lead to my dismissal under the Public Service Act 2008 s 187(1)(d)."12 Further, Mrs Clarke states "I expect a remedy by the QIRC to prevent disciplinary action and rule I can return to work unless sick."13 [15] Despite those comments, the submissions largely pertain to the Exemption Decision and the only decision attached to the Appeal Notice is the Exemption Decision. Regardless, in Graffunder v State of Queensland (Queensland Health) ("Graffunder"),14 I concluded that correspondence constituting a show cause notice or pertaining to proposed disciplinary action is not capable of being appealed.15 [16] I refer to Hutchison v State of Queensland (Queensland Health) ('Hutchison') in which Industrial Commissioner Pidgeon concluded: [93] There is no question that the proposed disciplinary action is not a decision that can be appealed. [94] With regard to the decision to commence a disciplinary process, s 195 of the PS Act sets out Decisions against which appeal cannot be made. Relevantly, it states that a person cannot appeal against a fair treatment decision made under chapter 6, part 2, other than a finding under s 187 that a disciplinary ground exists for the person. [95] Chapter 6, part 2 of the PS Act deals with disciplinary action for public service employees and former public service employees. Section 192A deals with directives about disciplinary action and investigating grounds for discipline and grievances. The relevant Directive to this matter states that the employee has appeal rights with regard to the disciplinary finding or the disciplinary decision. [96] In my view, the decision to commence a disciplinary process is not capable of being appealed, though it is clear that considerations of whether the proper process is followed in disciplinary matters can impact on whether a disciplinary finding or decision is fair and reasonable.16 [17] As in Graffunder, I agree with the reasoning in Hutchison and note the same conclusion was reached in Higgins v State of Queensland (Queensland Health).17 I will now proceed to consider the appeal against the Exemption Decision only. 12 Appeal Notice, 25 January 2022, 4. 13 Ibid. 14 [2022] QIRC 076, 5 [19]. 15 Ibid. 16 [2021] QIRC 317. 17 [2022] QIRC 030, 5 [15]. -- 5 of 15 -- 6 Timeframe to appeal [18] The Industrial Relations Act 2016 (Qld) (the IR Act) requires that an Appeal Notice be lodged within 21 days after the decision appealed against is given.18 [19] The Exemption Decision was given on 23 December 2021. Therefore, the deadline for filing the Appeal Notice was 13 January 2022. [20] On 23 January 2022, Mrs Clarke emailed a Form 89 - Appeal Notice to the Industrial Registry. On 24 January 2022, the Industrial Registry responded to Mrs Clarke's email, advising: … we note that the decision you are appealing is not a disciplinary decision, which you have selected on the Appeal form, additionally the form is also missing page 2. … Please resubmit the complete and correct form with the decision at your earliest convenience, clearly identifying what type of Appeal you wish to make.19 [21] The Appeal Notice was subsequently filed on 25 January 2022. That is, 12 days out of time or at its best, 10 days out of time (taking into account the attempt on 23 January 2022). [22] I am empowered by the IR Act to extend the time for giving an appeal notice.20 Should time for filing be extended? [23] The IR Act does not provide any criteria against which I am to determine whether or not to extend time. The question of whether to extend the time for filing an appeal notice is fundamentally an exercise of discretion. Such an exercise must be undertaken judicially and according to the rules of reason and justice, not arbitrarily or capriciously or according to private opinion.21 [24] Mrs Clarke bears the positive burden of demonstrating that the justice of the case requires the indulgence of an extension of time to file the Appeal.22 In that regard, I note the reasoning of McHugh J in Brisbane South Regional Health Authority v Taylor: A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the 18 Industrial Relations Act 2016 (Qld) s 564(1). 19 Email from Industrial Registry to Mrs Clarke, 24 January 2022. 20 Industrial Relations Act 2016 (Qld) s 564(2). 21 House v The King (1936) 55 CLR 499, [2]. 22 Megan Reimers v Aramaki Company (Australia) t/a Camira Child Care Centre [2002] 170 QGIG 1010; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 547. -- 6 of 15 -- 7 welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. Against this background, I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal to or greater than those provisions that enact limitation periods. A limitation provision is the general rule; an extension provision is the exception to it.23 [25] In Breust v Qantas Airways Ltd,24 Hall P set out the following considerations: • the length of the delay; • the explanation for the delay; • the prejudice to the Appellant if the extension of time is not granted; • the prejudice to the Respondent if the extension of time is granted; and • any relevant conduct of the Respondent. [26] Some additional considerations were provided by Linnane VP in Geoffrey John Erhardt v Goodman Fielder Food Services Limited.25 These considerations were usefully summarised by Thompson IC in Lloyd v Department of Communities, Child Safety and Disability Services26 and are paraphrased below: • The 21-day time limit must be respected and should not easily be dispensed with; and • The Appellant's prospects of success at a substantive hearing are always a relevant matter where it appears an Appellant has no, or very limited, prospects of success. In that instance, the Commission would not normally grant an extension of time. [27] Those cases were considering s 74(2)(b) of the Industrial Relations Act 1999 (Qld). However, they were answering substantively the same question as in this case - that is, what should inform the exercise of my discretion in extending the time to bring proceedings? As such, I find their assessment of the relevant factors to be highly persuasive in informing the exercise of my discretion. [28] Additionally, my discretion is informed by the purpose of the PS Act including promoting the effectiveness and efficiency of government entities.27 In that regard, I am guided by 23 (1996) 186 CLR 541, 553. 24 (1995) 149 QGIG 777. 25 (1999) 163 QGIG 20; Roger Carter Paterson v Medical Benefits Fund of Australia Limited (1998) 159 QGIG 232. 26 [2013] QIRC 129. 27 Public Service Act 2008 (Qld) s 3. -- 7 of 15 -- 8 the commentary of French CJ in Aon Risk Services Australia Limited v Australian National University: Also to be considered is the potential for loss of public confidence in the legal system which arises where a court is seen to accede to applications (seeking the exercise of a discretion) made without adequate explanation or justification.28 [29] I will now consider the circumstances in this matter against the abovementioned factors to determine whether I should exercise my discretion to hear this Appeal out of time. Length of delay [30] The Appeal Notice was ultimately filed 12 days out of time. Although I acknowledge Mrs Clarke first attempted to file the Appeal Notice 10 days out of time. [31] The 21-day appeal period has been determined by the legislature to be the appropriate period for a person to file an appeal. That is clearly stated in both the IR Act and the Exemption Decision.29 [32] The character of the delay, be it excessive, reasonable or otherwise, takes its colour from the surrounding circumstances.30 It is true that in some cases delays of several weeks have been considered to be not excessive.31 However, in such cases the delay is usually accompanied by a substantial explanation such as natural disasters, extraordinary personal circumstances such as a major health issue, or the like. There is no evidence that is the case here. [33] In conjunction with the reasons that follow, I find that a 12 day delay (10 at its best) is significant and unreasonable in these circumstances. Explanation for the delay [34] In the Directions Order issued 28 January 2022, I included an underlined note that provided "The Appellant's submissions should address why the Appeal should be heard out of time." [35] Mrs Clarke's reason for the delay is that she "was thinking in business terms the time in which to lodge an appeal was calculated on business days, not calendar days."32 Mrs Clarke realised that the timeframe pertained to calendar days once she received the Respondent's Submissions and was apparently surprised by this.33 28 (2009) 239 CLR 175, [30]. 29 Letter from Dr M. Cleary to Mrs D. Clarke, 23 December 2021, 7. 30Tonia Shelley v McRoberts Agency [2009] 190 QGIG 189. 31 See, eg, Lloyd v Department of Communities, Child Safety and Disability Services [2013] QIRC 129. 32 Appellant's Reply Submissions, 18 February 2022, 1 [2]. 33 Ibid. -- 8 of 15 -- 9 [36] Mrs Clarke argues that the Public Service Appeal Guide to which she turned to for guidance seems to infer that the 21-day timeframe refers to business days and not calendar days. I have reviewed the Guide and reject that argument on the basis there is no reference to business days. Rather, the wording used is "within 21 days".34 I find it was unreasonable for Mrs Clarke to assume reference to "within 21 days" meant business days because if that were the intention, I expect it would have been expressly stipulated. [37] The 21-day time period for an Appeal Notice to be filed has been legislated and in the absence of a compelling reason for the delay I will not extend the time for filing. Confusing calendar days for business days is not compelling in my view. As such, I find that Mrs Clarke has offered no adequate explanation or justification for the delay. Conduct of the Respondent [38] In the Exemption Decision, the Respondent advised Mrs Clarke of her appeal rights including the timeframe within which an appeal should be filed: If you are not satisfied with my decision in relation to the internal review of your grievance 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. Further information can be obtained from the Queensland Industrial Relations Commission (QIRC) on telephone 1300 592 987. Alternatively, you may refer to the QIRC appeals guide available at www.qirc.qld.gov.au.35 [39] That Mrs Clarke seemingly did not understand the timeframe as prescribed by the Respondent is certainly regrettable but not a sufficient or compelling reason to dispense with the legislative timeframes for filing an appeal and is certainly not the fault of the Respondent. [40] The Respondent's advice of the appeal period supports the proposition that the length of the delay was unreasonable, and that the explanation for the delay provided by Mrs Clarke is insufficient.36 Prospects of success [41] An Appellant's prospects of success at a substantive hearing is a relevant consideration.37 I note the guidance on this factor provided by President Hall in Bruce Anthony Piggott v State of Queensland (emphasis added, citations removed): In addition to these factors, the prospects of an application succeeding at a substantive hearing are also relevant, so that where it appears that an applicant has no, or very limited, prospects of success, 34 Queensland Industrial Relations Commission, Public Service Appeal Guide, 14 [3.7]. 35 Letter from Dr M. Cleary to Mrs D. Clarke, 23 December 2021. 36 Lloyd v Department of Communities, Child Safety and Disability Services [2013] QIRC 129. 37 Geoffrey John Erhardt v Goodman Fielder Food Services Limited (1999) 163 QGIG 20; Roger Carter Paterson v Medical Benefits Fund of Australia Limited (1998) 159 QGIG 232. -- 9 of 15 -- 10 the Commission should not grant an extension of time. However, the occasions for rejecting an application for an extension of time on the ground that the applicant has poor prospects of success will be few, and generally, the merits of an application are part of the general consideration of all relevant factors. In assessing the prospects of the substantive application succeeding, in the context of deciding an application to extend time, the merits or lack thereof of the substantive application must be clear cut, and will usually flow from formation of a view that there is an obstacle that no amount of evidence can overcome. Cases where a view may be formed so adverse to the applicant as to justify the refusal to extend time on that ground, will be rare.38 [42] Mrs Clarke contends that she has every chance of success based on the evidence and the appeal should be heard despite the mistake for which Mrs Clarke has apologised.39 I will consider the prospects below. Medical contraindication [43] In support of Mrs Clarke's exemption request on the basis of a medical contraindication to the vaccine, Mrs Clarke provided a letter from a General Practitioner, Dr Mathura Sudhakar. That letter advised that Mrs Clarke had been referred to a private Rheumatologist on 24 September 2021 but did not advise that Mrs Clarke had a recognised medical contraindication that prevented her from receiving a COVID-19 vaccine.40 [44] Mrs Clarke contends that although she received a referral to a private Rheumatologist, she realised that she would be unable to obtain an appointment within the appeal window and the cost would be extremely prohibitive as well.41 [45] Mrs Clarke contends that two doctors "declined to provide Medical Exemptions for her agreed medical contradictions and stated separately, their refusal was based on 'AHPRA information prohibiting them from providing medical exemptions due to threats of being de-registered.'"42 [46] For these reasons, Mrs Clarke submits the medical exemption pathway is deliberately unfair and unreasonable.43 [47] An exemption request on medical grounds requires a letter from Mrs Clarke's treating specialist medical practitioner outlining a medical contraindication to the COVID-19 vaccine.44 Mrs Clarke has made several allegations regarding why she was unable to obtain such a letter but has not supported those allegations with any evidence. Regardless, Mrs Clarke simply has not met the requirements to obtain an exemption on the basis of a medical contraindication. 38 [2010] ICQ 35, [6]. 39 Appellant's Submissions in Reply, 18 February 2022, 1 [5]. 40 Respondent's Submissions, 11 February 2022, 3 [21]; Attachment 4. 41 Appellant's Submissions in Reply, 18 February 2022, 2 [10]. 42 Ibid [9]. 43 Ibid [12]. 44 Employee COVID-19 Vaccine Exemption Application Form, 4. -- 10 of 15 -- 11 [48] In Graffunder, I concluded: [48] I find that Ms Graffunder did not provide a letter from her treating specialist medical practitioner and it was not the responsibility of the Respondent to seek further information particularly in light of the fact Ms Graffunder did not make her exemption request on medical grounds. Any concerns regarding a conflict of interest with her treating specialist should have been raised with the Respondent. [49] On that basis, any medical concerns raised by Ms Graffunder will not be considered as legitimate medical contraindications.45 [49] On the evidence before me in this matter, I would likely reach the same conclusion as I did in Graffunder and therefore conclude that Mrs Clarke's prospects of success with respect to the medical contraindications are very limited. Religious belief [50] In support of Mrs Clarke's exemption request on the basis of a genuinely held religious belief, Mrs Clarke provided a letter from Mr Mark Mackay, Senior Pastor at Forest Lake Baptist Church.46 [51] An exemption request on this basis requires a letter specifying: • their deeply held religious belief such that they are unable to receive any COVID-19 vaccine; and • their affiliation or connection to the religious group from a religious leader or official.47 [52] The letter from Mr Mark Mackay merely states: • Mrs Deborah Clarke is an active member of the Forest Lake Baptist Church; & • Mrs Deborah Clarke has a genuinely held religious belief such that she is unable to receive any COVID-19 vaccine.48 [53] Clearly, the letter provided does not particularise what Mrs Clarke's deeply held religious belief is - but rather generally refers to her holding a belief. It was clearly not unreasonable for the Respondent to reject exemption on the grounds of religious belief in light of a lack of specificity. [54] In Graffunder, I concluded that the letter supplied did not comply with the requirements and this fact significantly contributed to my decision to not proceed to consider exemption on the basis of religious beliefs any further.49 45 [2022] QIRC 076, 13. 46 Respondent's Submissions, 11 February 2022, 3 [21]. 47 Employee COVID-19 vaccine exemption application form, 4. 48 Letter from Mr M. Mackay, Senior Pastor to the Respondent, 29 September 2021. 49 [2022] QIRC 076, 12 [44]-[45]. -- 11 of 15 -- 12 [55] On the evidence before me in this matter, I would likely reach the same conclusion as I did in Graffunder and therefore conclude that Mrs Clarke's prospects of success with respect to her religious beliefs are very limited. Other exceptional circumstances [56] The grounds expressed in support of Mrs Clarke's exemption request with respect to other exceptional circumstances broadly encompasses the following:50 • the required duty of consultation under the Workplace Health and Safety Act 2011 (Qld) has not been met; • a risk assessment has not been provided; • requested information has not been provided; • Mrs Clarke is unable to give full and informed consent; and • Mrs Clarke is concerned the COVID-19 vaccine may not be safe. [57] In her request for an internal review of the exemption rejection, Mrs Clarke further requested "irrefutable evidence" on a range of matters so that she could proceed to make an informed decision.51 [58] Further, Mrs Clarke has filed a substantial amount of material in support of her Appeal. I have reviewed that material and note some key themes below: • concerns regarding adverse reactions; • evidence that goes against the safety of the COVID-19 vaccination; • questions directed at the Respondent remain unanswered; • a risk assessment has not been provided; • infringement of human rights; • informed consent; • Directive 12/21 constitutes reckless conduct; 50 Letter from Mrs D. Clarke to the Respondent, 30 September 2021. 51 Letter from Mrs D. Clarke to the Respondent, 20 December 2021. -- 12 of 15 -- 13 • negligence; and • alternative solutions such as wearing Personal Protective Equipment.52 [59] I have also considered the Respondent's submissions for why it contends the Exemption Decision is fair and reasonable, outlined at [32] - [43] of its submissions filed 11 February 2022. [60] The submissions presented by Mrs Clarke are largely analogous to those presented in Graffunder. [61] In Graffunder, I broadly considered concerns around receiving the COVID-19 vaccine at [55] - [63] and accepted that "vaccine hesitancy and conscientious objection, by themselves, are not considered exceptional circumstances." I concluded: Clearly the Respondent does not dispute that Ms Graffunder has concerns about reacting to the vaccination or compatibility with her human rights. With respect to Ms Graffunder's various concerns, simply put, seeking an exemption because one is concerned of an adverse reaction, lack of consultation, the lawfulness of Directive 12/21, a lack of medical evidence or compatibility with human rights are not unusual or extraordinary circumstances.53 … Ms Graffunder has also raised several issues with the accuracy and quality of evidence behind the COVID-19 vaccine. In doing so, Ms Graffunder refers to her own research as well as news articles. Again, the issue for Ms Graffunder is that her concerns are not 'exceptional' and on that basis, the Respondent had a fair and reasonable cause to refuse her exemptions request.54 [62] In Graffunder, I considered arguments raised with respect to human rights at [59] - [62] and found that the Respondent's consideration of human rights did not render the decision unfair or unreasonable. [63] At [64] - [70] of Graffunder, I considered arguments raised with respect to informed consent. I ultimately concluded: Ms Graffunder argues that she neither accepted nor rejected the mandate under Directive 12/21 but requires further and better particulars so that she can make an informed decision. In my view, the fact that Ms Graffunder has not received answers to the remaining queries or has not been satisfied with certain responses does not constitute an "exceptional circumstance". In light of that finding, I reject Ms Graffunder's arguments that the Exemption Decision was unfair and unreasonable on this basis.55 [64] Ultimately, each matter needs to be assessed on its own merits. Mrs Clarke's circumstances are different to Ms Graffunder's circumstances however the arguments raised are very similar and the excerpts above tend to show how those arguments have 52 Appeal Notice, 25 January 2022; Appellant's Submissions, 4 February 2022; Appellant's Submissions in Reply, 18 February 2022. 53 [2022] QIRC 076, 14 [57]. 54 Ibid 15 [63]. 55 Ibid 17 [70]. -- 13 of 15 -- 14 fared in the past. Overall, upon review of Mrs Clarke's specific circumstances and arguments, I have not drawn any new argument that renders the Exemption Decision unfair or unreasonable. The other matters raised have been considered and rejected before and I conclude that Mrs Clarke's prospects of success with respect to exceptional circumstances are extremely limited. Prejudice to Mrs Clarke [65] Mrs Clarke will suffer some prejudice should the Appeal be dismissed for filing out of time. The obvious prejudice is that she would lose the opportunity for an independent review of the Exemption Decision, and any subsequent relief. [66] That outcome is of course not an insubstantial detriment to Mrs Clarke, who seeks to appeal a decision to not grant her an exemption against receiving the COVID-19 vaccine. [67] However, I have concluded above that Mrs Clarke has limited prospects of success and therefore while I accept there is some prejudice to Mrs Clarke, I do not consider that to be significant. Prejudice to the Respondent [68] It is important to note that delay itself is considered to give rise to a general presumption of prejudice to the Respondent.56 Furthermore, minimal additional prejudice to the Respondent in and of itself is an insufficient basis to grant an extension of time.57 [69] I understand that the Respondent is assessing a large volume of exemption requests and is processing a large volume of employees through disciplinary proceedings. Therefore, a delay in filing an Appeal is a delay in the overall process. This prejudice is compounded by my conclusion that the Appeal has low prospects of success. [70] For those reasons, I find that the Respondent would suffer some prejudice should I decide to exercise my discretion to hear the Appeal out of time. Conclusion [71] Mrs Clarke filed her Appeal Notice 12 days out of time (10 at best) and seeks that I exercise my discretion to extend the time for filing that appeal. [72] There is a suite of relevant considerations in exercising such a discretion. Foremost, I should be satisfied that Mrs Clarke has a reasonable ground for extending the time. 56 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 556. 57 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 300. -- 14 of 15 -- 15 [73] I have found that the Respondent advised Mrs Clarke of her rights of appeal, including the relevant timeframe. I am satisfied that Mrs Clarke was provided with all the relevant information she required to file this Appeal within time. [74] The delay primarily resulted from Mrs Clarke's misinterpretation of the timeframe. I have found that is not an adequate explanation for the delay. While that is certainly unfortunate, the delay primarily resulted from Mrs Clarke's own fault and not from any factor beyond her control. That is not an acceptable reason to depart from the legislatively prescribed timeframe of 21 days. [75] Mrs Clarke will suffer some prejudice resulting from my decision to decline to hear the Appeal out of time. She will not receive an independent review of the decision on this occasion, or the subsequent relief she seeks. However, I do not consider that prejudice to be overwhelming particularly in light of my conclusion that she has limited prospects of success. [76] If I proceeded to hear the Appeal out of time, the prejudice to be suffered by the Respondent is also relevant. [77] For the reasons above, I find that the Appeal was filed out of time, and there is no reasonable ground to extend the time for filing. [78] I have determined not to exercise my discretion under s 564(2) of the IR Act to allow the Appeal to be started within a longer period. On that basis, I dismiss this appeal for want of jurisdiction. [79] I order accordingly. Order: 1. The appeal is dismissed for want of jurisdiction. -- 15 of 15 --