Elliott v State of Queensland (Queensland Health) [2022] QIRC 88

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Elliott v State of Queensland (Queensland Health) [2022] QIRC 88 PARTIES: Elliott, Stacy (Appellant) v State of Queensland (Queensland Health) (Respondent) CASE NO.: PSA/2022/12 PROCEEDING: Public Service Appeal DELIVERED ON: 16 March 2022 MEMBER: HEARD AT: Power IC On the papers ORDER: Pursuant to s 562A(3)(b)(ii) of the Industrial Relations Act 2016 (Qld), the Commission declines to hear the appeal. CATCHWORDS: PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – Public Service Appeal – where appellant appeals a notice to show cause on allegations – where appellant appeals a notice to show cause on suspension without remuneration – appeal misconceived – no appealable decision pursuant to s 194 of the Public Service Act 2008 (Qld) LEGISLATION: Fair Work Act 2009 (Cth), s 343 Hospital and Health Boards Act 2011 (Qld), s 51A Human Rights Act 2019 (Qld), ss 15 and 17 Industrial Relations Act 2016 (Qld), ss 562A and 562B Public Service Act 2008 (Qld), ss 137, 192A, 194 -- 1 of 11 -- 2 and 195 Work Health and Safety Act 2011 (Qld), s 19 Work Health and Safety Regulation 2011 (Qld), ss 34 and 35 CASES: Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245 Carlton v Simon Blackwood (Workers' Compensation Regulator) [2017] ICQ 1 Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018) Hutchison v State of Queensland (Queensland Health) [2021] QIRC 317 Yardley v Minister for Workplace Relations and Safety [2022] NZHC 291 Reasons for Decision Introduction [1] Ms Stacy Elliott ('the Appellant') is employed by the State of Queensland (Queensland Health) ('the Respondent') as an AO3 Medical Typist, Health Information Services at Mackay Hospital and Health Service ('MHHS') since 2015. [2] By letter dated 23 December 2021, Mr Terence Seymour, Executive Director People, MHHS, issued a notice to show cause to the Appellant, affording the Appellant 14 days to show cause as to why a disciplinary finding should not be made against the Appellant with respect to the following allegation: Allegation one In contravention of a direction given to you by a responsible person, you have not received your second dose of a COVID-19 vaccine by 31 October 2021. [3] The notice to show cause further advised that the Appellant was to be suspended from duty on normal remuneration, pursuant to s 137(1)(b) of the Public Service Act 2008 (Qld) ('the PS Act'). The notice to show cause also advised that consideration was being given as to whether the Appellant should be suspended without pay in accordance with s 137(1)(b) of the PS Act and was provided with seven days to provide a response. [4] On 30 December 2021, the Appellant provided a response to the notice to show cause. -- 2 of 11 -- 3 [5] On 7 January 2022, the Appellant filed an appeal notice, appealing against the notice to show cause. Background [6] On 11 September 2021, pursuant to s 51A of the Hospital and Health Boards Act 2011 (Qld) ('HHB Act'), the chief executive of the Respondent issued Health Employment Directive 12/21 regarding employee COVID-19 vaccination requirements ('the Directive'). [7] Clause 1 of the Directive provides that compliance with the Directive is mandatory. Clause 4 of the Directive provides that the Directive applies to all health service employees and prospective employees employed under the HHB Act. [8] Clause 8.1 of the Directive provides: 8.1 Existing employees currently undertaking work or moving into a role undertaking work listed in a cohort of Table 1, must: a. have received at least the first dose of a COVID-19 vaccine by 30 September 2021; and b. have received the second dose of a COVID-19 vaccine by 31 October 2021. • 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. • An existing employee must maintain vaccine protection. Therefore, an existing employee is required to receive the prescribed subsequent dose/s of a COVID-19 vaccination (i.e. booster), as may be approved by the Australian Technical Advisory Group on Immunisation (ATAGI), within any recommended timeframe following the second dose. Evidence of vaccination, confirming the employee has received prescribed subsequent dose/s of the vaccine, is to be provided to their line manager or other designated person within 7 days of receiving the vaccine. • An existing employee who is required to have received a first or second dose of a COVID- 19 dose at an earlier date under a Chief Health Officer public health direction must be vaccinated by the dates specified in the public health direction. • The requirements of this clause 8 do not apply to existing employees who have been granted an exemption under clause 10 of this HED. [9] Clause 10.2 of the Directive provides an exemption application will be considered where the employee has a recognised medical contraindication, the employee has a genuinely held religious belief or where another exceptional circumstance exists. Appeal principles [10] The appeal must be decided by reviewing the decision appealed against.1 Because the word 'review' has no settled meaning, it must take its meaning from the context in 1 Industrial Relations Act 2016 (Qld) s 562B(2) ('IR Act'). -- 3 of 11 -- 4 which it appears.2 An appeal under ch 11 pt 6 div 4 of the Industrial Relations Act 2016 (Qld) ('the IR Act') is not by way of rehearing,3 but involves a review of the decision arrived at and the decision making process associated therewith. [11] The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.4 Findings which are reasonably open to the decision maker are not expected to be disturbed on appeal. Legislative framework [12] Section 194 of the PS Act provides for decisions against which appeals may be made: 194 Decisions against which appeals may be made (1) An appeal may be made against the following decisions— (a) a decision to take, or not take, action under a directive; (b) a decision under a disciplinary law to discipline— (i) a person (other than by termination of employment), including the action taken in disciplining the person; or (ii) a former public service employee by way of a disciplinary declaration made under section 188A, including if the disciplinary action that would have been taken was termination of employment; (ba) a decision of the commission chief executive under section 88IA to give a direction about rectifying a defect in the procedural aspects of the handling of a work performance matter, to the extent the direction affects the employee the subject of the work performance matter; (bb) a decision to suspend a public service employee without entitlement to normal remuneration under section 137 (a suspension without pay decision); (c) a decision to promote a public service officer (a promotion decision); (d) a decision to transfer a public service officer (a transfer decision); (e) a decision (each a conversion decision)— (i) under section 149B not to convert the basis of employment of an employee; or (ii) under section 149B to convert the basis of employment of an employee in a circumstance provided for under a directive made under section 149B(8A); or (iii) under section 149C not to appoint an employee to a position at a higher classification level, if the employee has been seconded to or acting at the higher classification level for a continuous period of at least 2 years; (eb) a decision a public service employee believes is unfair and unreasonable (a fair treatment decision); (f) a decision about anything else against which another Act allows a person to appeal. (2) However— (a) if an appeal may be made under this section against a decision, other than under subsection (1)(eb), the appeal can not be made under subsection (1)(eb); and (b) an appeal can not be made against a decision if section 195 applies to the decision. 2 Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261. 3 Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5 as to the former, equivalent provisions in s 201 of the PS Act. 4 IR Act s 562B(3). -- 4 of 11 -- 5 … [13] Section 195 of the PS Act provide for decisions against which appeals can not be made: 195 Decisions against which appeals can not be made … (3A) A person can not appeal against a fair treatment decision— … (b) made under chapter 6, part 2, other than a finding under section 187 that a disciplinary ground exists for the person; or … Grounds of Appeal [14] The Appellant stated the following under Part C of the appeal notice: Currently, I have been given a suspension on full pay but had 14 days to lodge an appeal as to why I would not be suspended without pay and following that be subject to potential termination of employment for not following a health directive. I have repeatedly (sic) asked for a risk assessment and have never been provided with an indivitudal (sic) one for my role which I fulfill from home as a Medical typist for the Mackay Base Hospital… [15] The Appellant proceeded to outline the following grounds of appeal, in summary: (a) the Appellant's current role does not require her to enter a healthcare facility as she is currently working from home; (b) there is no risk from the Appellant continuing in the role as she currently works from home; (c) consideration of alternative duties or a temporary transfer is not required as she currently works from home; (d) the current workload is a serious health and safety risk; (e) the Appellant does not pose a health risk to colleagues, patients or family members; and (f) the Respondent have not provided a risk assessment specific to her role and applied a blanket approach. Submissions [16] The Commission issued a Directions Order calling for submissions from both parties following receipt of the appeal notice. The submissions are summarised below. Respondent's submissions [17] At the outset, the Respondent submits that the Appellant's appeal is misconceived and that the Commission has no jurisdiction to hear the appeal as there has been no decision -- 5 of 11 -- 6 to suspend the Appellant without pay. The Respondent submits that the Appellant cannot appeal the decision to suspend her with pay or to ask her to show cause why she should not be suspended without pay. [18] The Respondent submits that the decision to ask the Appellant to show cause why she should not be suspended without pay cannot be the subject of an appeal under s 197 of the PS Act. Similarly, the decision to ask the Appellant to show cause why disciplinary findings should not be made against her cannot be the subject of an appeal, pursuant to ss 195 and 192A of the PS Act. [19] The Respondent outlined a chronology of the Appellant's exemption application process and submits, to the extent the Appellant's appeal may be about the refusal to grant the Appellant an exemption, the decision to refuse the request was fair and reasonable, in that: (a) the Appellant did not satisfy the criteria for the granting of exemption as the Appellant did not provide evidence showing a medical contraindication; (b) it was clear from the Appellant's letter dated 1 December 2021 that she is hesitant to receive the COVID-19 vaccination. The Respondent submits that while the Appellant may genuinely have reservations about receiving the COVID-19 vaccination, vaccine hesitancy and conscientious objection, by themselves, are not considered exemption circumstances; (c) it is not incumbent on the Respondent to accept the Appellant's views; (d) whilst the Appellant had been performing her duties from home since April 2021, this arrangement was agreed on a temporary basis and was to be reviewed on 31 December 2021; and (e) the Appellant's role may require her to attend a hospital at any time or there may be a requirement for her to be deployed to alternative duties to meet the current and unpredicted workload demand in response to COVID-19. While the Appellant is not vaccinated, she is unable to meet this requirement. Appellant's submissions [20] The Appellant submits that the appeal notice was filed as per a recommendation in a letter sent to the Appellant dated 22 December 2021. The Appellant requests that the Commission hears the appeal on the basis that there are no grounds for the Respondent to suspend the Appellant without pay or subsequently terminate the Appellant's employment. [21] The substance of the Appellant's submissions largely relates to the Directive and the Appellant's employment conditions. In summary, the Appellant submits that: (a) the Directive relies upon workplace health and safety obligations as justification for enforcing mandatory vaccination, however, to date, the Respondent has failed to provide a work health and safety risk assessment specific to the Appellant as required under s 19(3)(f) of the Work Health and Safety Act 2011 (Qld) and ss 34 -- 6 of 11 -- 7 and 35 of the Work Health and Safety Regulation 2011 (Qld). The Respondent has failed to consider the risks to the employee posed by receiving one or more of the COVID-19 vaccines; (b) the statement in the Directive that the existing employee is required to 'maintain vaccine protection' is not a part of the Appellant's employment contract when the Appellant was offered the permanent part-time appointment, referring to the Respondent's General Terms of Conditions and Employment; (c) from November 2020, the Appellant received approval from the Respondent for a flexible working arrangement of 50/50 and from February 2021, a temporary approval was given to work 100% remotely; and (d) the Appellant's role is non-clinical and the Appellant's role description of a Medical Typist does not specify patient contact, nor does it specify that the Appellant provide therapies or treatments to patients. Accordingly, the Appellant poses no risk to any persons when working 100% remotely. [22] The Appellant submits that it is unreasonable to state that the Appellant's role requires the Appellant to attend a hospital at any time or be deployed to alternative duties to meet the current and unprecedented workload demand in response to COVID-19 for the following reasons: a) I no longer live in Mackay and I work full time from my residence and do not have the ability nor requirement to attend a Queensland Health site. b) I am a specialised administrative employee and not skilled in or had any formal training in other clinical operational roles required for other clinical roles requiring entry to work in a Queensland Health clinical setting. c) There is currently a critical backlog in the provision of medical information which directly affects patient welfare who are being left waiting for what are often critical illnesses and treatment. [23] The Appellant submits that stating that there is a 'mandatory vaccination requirement' and those who object to receiving the vaccination shall not be allowed to continue service, with their employment being terminated is undue pressure, coercion and manipulation and is not in accordance with the definition of 'valid consent' under the Australian Immunisation Handbook. The Appellant refers to an extract from the Fair Work Ombudsman with respect to lawful and reasonable directions to get vaccinated. [24] The Appellant submits that the decision to suspend the Appellant under the current circumstances are unfair and unreasonable due to the significant risk it poses to the continuation of care for patients and the serious situation regarding critical workforce shortage within the Respondent. [25] The Appellant submits that the decision contravenes the Appellant's employment contract, s 343 of the Fair Work Act 2009 (Cth), s 137(1)(b) of the PS Act, the principals of natural justice and ss 15 and 17 of the Human Rights Act 2019 (Qld) ('HR Act'). -- 7 of 11 -- 8 Respondent's submissions in reply [26] In the Respondent's submissions in reply, the Respondent refers to an annexure to the Appellant's letter of permanent part-time employment and submits that the letter clearly states that it is a mandatory condition of employment for the role, as Medical Typist, that she be vaccinated against, and remain vaccinated against, certain vaccine preventable diseases. The Respondent submits that it was clearly a condition of the Appellant's appointment to the role permanently that she be and maintain vaccination against vaccine preventable diseases. [27] The Respondent submits that the Respondent is entitled to change the conditions of employment for its employees in response to health and safety risks. The Appellant was not previously required to be vaccinated against COVID-19 because it was not a public health and workplace safety risk. The Respondent further submits that s 51A of the HHB Act permits the Respondent to impose additional or new conditions on the Appellant's employment. [28] The Respondent submits that the requirement on the Appellant to receive the prescribed doses of a COVID-19 vaccination is a condition of her employment. The requirement is reasonable, taking into account the risk assessment conducted by the Respondent and the direction issued by the Chief Health Officer with respect to entry and the performance of work in hospitals and facilities at which clinical care and services are provided. Appellant's further submissions [29] On 21 February 2022, the Appellant filed an application in existing proceedings, seeking to file further submissions. On 23 February 2022, the Commission granted leave for the Appellant to file further submissions to address the Respondent's submissions in reply. [30] In the Appellant's further submissions, the Appellant rejects the Respondent's submissions in reply and submits, in summary, that: (a) at no stage during the Appellant's period of employment has a request been made to provide any vaccine preventable diseases vaccination evidence including measles, rubella, chickenpox or whooping cough which was not a condition of the Appellant's employment; (b) the Respondent is entitled to change their employee's conditions of employment in response to health and safety risks, however the Appellant has not consented to the employment contract being amended; and (c) a health and safety risk assessment has also not been provided that is specific to the Appellant's role which has been requested numerous times. It is clear that the Appellant is not a health or safety risk in the workplace as the Appellant no longer works in a health care facility but from the safety of her own home as per the flexible working arrangement. -- 8 of 11 -- 9 [31] The Appellant relies on a High Court of New Zealand case, Yardley v Minister for Workplace Relations and Safety,5 where Cooke J set aside a vaccination mandate order for New Zealand Police and Defence Force staff. Consideration [32] Consideration of an appeal of this kind requires a review of the decision to determine if the decision was fair and reasonable, however in this matter a jurisdictional issue must first be determined. [33] Section 194 of the PS Act outlines the decisions against which appeals may be made, noting that s 194(2)(b) provides that an appeal cannot be made if s 195 of the PS Act applies to the decision. Section 195 outlines the decisions against which appeals can not be made, with s 195(3A)(b) stating: 195 Decisions against which appeals can not be made … (3A) A person can not appeal against a fair treatment decision— … (b) made under chapter 6, part 2, other than a finding under section 187 that a disciplinary ground exists for the person; or … [34] Chapter 6, part 2 of the PS Act outlines provisions regarding disciplinary matters for public service employees. A decision made under this part of the PS Act may not be appealed, with the exception of a finding under s 187 that a disciplinary ground exists for the person.6 From the material available before me, no such decision has been made in this matter. [35] The letter annexed to the Notice of Appeal signed by Mr Seymour is not a disciplinary finding nor is it a decision to suspend the Appellant without remuneration. The letter outlines the following: After giving full and careful consideration to the information available to me, I am of the view that you may be liable to disciplinary findings pursuant to section 187 of the Act. You are now required to show cause as to why a disciplinary finding should not be made against you in relation to the following allegation on the grounds as set out below. … [emphasis added] [36] As outlined above, the letter includes a notice to show cause with respect to an allegation rather than a disciplinary finding. The Commission has no jurisdiction to hear such an appeal. 5 [2022] NZHC 291. 6 Hutchison v State of Queensland (Queensland Health) [2021] QIRC 317. -- 9 of 11 -- 10 [37] The letter also outlines a decision to suspend the Appellant from duty on normal remuneration pursuant to s 137(1)(b) of the PS Act. Section 194(1)(bb) of the PS Act provides that an appeal can be made against suspension without remuneration. The letter provides an opportunity for the Appellant to show cause with respect to proposed suspension without remuneration. No decision on this matter has yet been made and consequently, the Commission does not have jurisdiction to hear such an appeal. [38] In the Notice of Appeal, the Appellant noted that she had attached a copy of the decision being appealed. The Appellant attached a letter from Mr Seymour dated 23 December 2021 requesting she show cause why a disciplinary finding should not be made and show cause why she should not be suspended without remuneration. As outlined above, the Appellant's grounds of appeal generally contend that she should not be suspended or subject to potential termination as she is currently working from home and does not pose a risk to others. However, in the Appellant's submissions a different letter was attached, dated 22 December 2021 from Mr Terry Johnson, Acting Chief Executive, MHHS. This letter is an internal review decision to confirm the decision to deny the Appellant's application for exemption from the COVID-19 vaccination requirements of the Directive. [39] The Appellant's submissions generally challenge the validity of the Directive and contend that the decision is unfair and unreasonable based upon the workforce shortage, her current working location, concerns about the effectiveness and reactions to the vaccine, alleged breach of her employment contract, principals of natural justice and application of the HR Act. The Appellant's submissions conclude with the following orders sought: … 17. I request the Commission hear my appeal on the basis that there are no grounds for Queensland Health to suspend me without pay or subsequently terminate my employment. 18. Given the current circumstances around the severity of patient safety within my department, there are grounds for me to continue my role working from home safely and effectively. 19. My contractual agreement with Queensland Health does not include any mandatory vaccination requirements or the need to remain vaccinated against any vaccine preventable diseases. … [40] The Appellant's submissions appear to relate to the letter annexed to the Notice of Appeal,7 the letter confirming the application for an exemption had been denied, and broader issues. [41] The Notice of Appeal requires a positive indication of the decision that is the subject of the appeal and requires the Appellant to mark a box confirming that the appealed decision has been annexed when filed in the Registry. In this case, that decision related to the show cause process and suspension of employment. It is not appropriate for the matter to then evolve into a broader appeal against another decision.8 The Appellant is required to outline in the Notice of Appeal the specific grounds of appeal, which in this 7 The letter of Mr Seymour dated 23 December 2021. 8 Carlton v Simon Blackwood (Workers' Compensation Regulator) [2017] ICQ 1, [18]. -- 10 of 11 -- 11 case related solely to the show cause letter. The grounds of appeal do not mention the decision to deny the Appellant's exemption application. It is not appropriate to arbitrarily broaden the grounds of appeal to include a separate decision by a different decision maker. If the Appellant had intended to appeal against the internal review decision to deny an exemption, a Notice of Appeal should have been filed separately annexing that decision and outlining the specific grounds of appeal. The only appeal before me is against the decision annexed to the Notice of Appeal, being the letter of Mr Seymour dated 23 December 2021 and based on the grounds outlined in the Notice of Appeal. [42] For the reasons outlined above, the Appellant's appeal is misconceived on the basis that the decision to suspend her with normal remuneration and requesting she show cause on suspension without remuneration and disciplinary findings are not appealable decisions. Consequently, I decline to hear the appeal. I note that any decision to suspend the Appellant without remuneration or to make a disciplinary finding will be appealable decisions. [43] I order accordingly. Order Pursuant to s 562A(3)(b)(ii) of the Industrial Relations Act 2016 (Qld), the Commission declines to hear the appeal. -- 11 of 11 --