Venables v State of Queensland (Queensland Health)
[2022] QIRC 137
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- Unreported Judgment
- Venables v State of Queensland (Queensland Health)[2022] QIRC 137
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Venables v State of Queensland (Queensland Health)[2022] QIRC 137
Venables v State of Queensland (Queensland Health)[2022] QIRC 137
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Venables v State of Queensland (Queensland Health) [2022] QIRC 137 |
PARTIES: | Venables, Kerry Anne (Appellant) v State of Queensland (Queensland Health) (Respondent) |
CASE NO.: | PSA/2022/258 |
PROCEEDING: | Public Service Appeal - Fair treatment decision |
DELIVERED ON: | 12 April 2022 |
HEARING DATE: | On the papers |
MEMBER: | Merrell DP |
HEARD AT: | Brisbane |
DATES OF WRITTEN SUBMISSIONS: | Appellant's written submissions filed on 6 April 2022 and Respondent's written submissions filed on 11 April 2022 |
ORDER: | Pursuant to s 562A(3)(b)(iii) of the Industrial Relations Act 2016, the Appellant's appeal will not be heard. |
CATCHWORDS: | PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL – Appellant employed by the State of Queensland as a Clinical Nurse Consultant – cl 8 of the Health Employment Directive No. 12/21 – Employee COVID–19 vaccination requirements required existing employees who are employed to work in a hospital or other facility, where clinical care or support is provided, to have received at least a 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 exempted – Appellant applied for an exemption – exemption not granted – Appellant sought internal review of decision not to grant exemption – internal review decision confirmed decision not to grant exemption – appeal against internal review decision by Appellant – Appellant subsequently dismissed – whether appeal against decision should be heard – Appellant invited to make written submissions as to whether appeal should be heard in the circumstances where she was no longer an employee – appeal not heard because of the compelling reason that the Appellant is no longer an employee and any decision on appeal will have no practical effect on the Appellant's employment |
LEGISLATION: | Health Employment Directive No. 12/21 – Employee COVID-19 vaccination requirements, cl 7, cl 8 and cl 10 Hospital and Health Boards Act 2011, s 51A Industrial Relations Act 2016, s 562A, s 562B and s 562C Public Service Act 2008, s 194 |
CASES: | Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203; (2020) 305 IR 311 |
Reasons for Decision
Introduction
- [1]Ms Kerry Anne Venables was employed by the State of Queensland as a Clinical Nurse Consultant at the Ingham Health Service which is part of the Townsville Hospital and Health Service ('the Health Service'). Ms Venables was employed through Queensland Health ('the Department').
- [2]Dr John Wakefield, the Chief Executive of the Department, pursuant to s 51A(1) of the Hospital and Health Boards Act 2011, approved, with effect from 11 September 2021, Health Employment Directive No. 12/21 - Employee COVID-19 vaccination requirements ('the Directive').
- [3]The combined effect of cls 7 and 8 of the Directive is that employees who are employed to work in a hospital or other facility, where clinical care or support is provided, had to provide to their line manager, or upload into the designated system, evidence that they had received the first dose of a COVID-19 vaccine by 30 September 2021 and that they had received the second dose of a COVID-19 vaccine by 31 October 2021.
- [4]By cl 10 of the Directive, an employee is not required to be so vaccinated if they are granted an exemption from vaccination because, relevantly, the employee had a genuinely held religious belief.
- [5]On 24 September 2021, Ms Venables applied for an exemption on religious grounds. By written decision dated 3 December 2021, Ms Sharon Kelly, Interim Executive Director, Human Resources & Engagement of the Health Service, advised Ms Venables that she was not granted the exemption as sought ('Ms Kelly's decision').
- [6]By email dated 14 December 2021, Ms Venables sought an internal review of Ms Kelly's decision.
- [7]By written decision dated 25 January 2022, Ms Ann Marie Mallett, Acting Chief Operating Officer of the Health Service, confirmed Ms Kelly's decision ('the decision').
- [8]By appeal notice filed on 14 February 2022, Ms Venables, pursuant to ch 7, pt 1 of the Public Service Act 2008 ('the PS Act'), appealed against the decision. Directions for the hearing and determination of Ms Venables' appeal were issued by me on 15 February 2022.
- [9]It is common ground that on 17 March 2022, Ms Venables' employment was terminated because of her failure to be vaccinated.
- [10]Section 562A(3)(b)(iii) of the Industrial Relations Act 2016 ('the IR Act') provides that the Commission may decide it will not hear a public service appeal against the decision if the Commission reasonably believes, after asking the appellant to establish by oral or written submissions that the appellant has an arguable case for the appeal, that the appeal should not be heard for another compelling reason.
- [11]Following a conference on 31 March 2022, I issued directions for the parties to address me by written submissions as to whether or not, in light of Ms Venables' dismissal, I should hear Ms Venables' appeal.
- [12]Both parties filed submissions.
- [13]This is my decision about whether or not, in light of Ms Venables' dismissal, I should hear Ms Venables' appeal.
- [14]For the reasons that follow, I decline to hear Ms Venables' appeal.
The relevant legislative provisions
- [15]
- [16]The powers I have, in respect of making an order following on from my consideration of whether or not the decision appealed against was fair and reasonable, are those set out in s 562C(1) of the IR Act.
- [17]Relevantly, pursuant to s 562C(1)(a) and (c) of the IR Act, I only have power to confirm the decision appealed against or to set aside the decision appealed against and substitute another decision or return the matter to the decision maker.
Ms Venables' submissions
- [18]Ms Venables relevantly submits that:
- she has had a long career, 42 years, with the Health Service;
- her employment was terminated within 21 days of her starting her present appeal;
- the process to terminate her employment was expedited after she started her present appeal, when the same thing did not happen to another employee in the Health Service who had their exemption application denied, but who did not appeal that decision;
- her position has been advertised and she has yet to be paid her outstanding entitlements and has yet to receive a statement of service; and
- she was employed when she filed her present appeal and it was unfair of the Health Service to dismiss her prior to her appeal being heard.
The Department's submissions
- [19]The Department relevantly submits that the Commission does not have jurisdiction to hear and determine Ms Venables' appeal because, as she is no longer a Health Service employee, she has no standing to continue her appeal. In support of its submission, the Department cites s 194(1)(b)(i) of the PS Act which provides that an appeal may be made against a decision under a disciplinary law to discipline a person, other than by termination of employment, including the action taken in disciplining the person.
Ms Venables' appeal should not be heard
- [20]Having considered the submissions of both Ms Venables and the Department, my view is that I should exercise my discretion and not hear Ms Venables' appeal. This is for the compelling reason that given that Ms Venables is no longer an employee, there can be no practical effect from any decision I make in respect of her appeal.
- [21]If I confirmed the decision appealed against, that decision can be of no effect on Ms Venables because her employment has been terminated.
- [22]Similarly, if I set the decision appealed against aside and substituted a new decision, namely, that Ms Venables should have been granted an exemption under the Directive, that decision can have no practical effect on Ms Venables because she is no longer an employee.
- [23]In my view, in general, the Commission's time should only be spent hearing and determining public service appeals where there will be some practical effect upon the employee's continued employment. In Ms Venables' case, any decision I make will have no practical effect on her continued employment.
- [24]This is a compelling reason not to hear Ms Venables' appeal.
Conclusion
- [25]For the reasons I have given, I decline to hear Ms Venables' appeal against the decision
Order
- [26]I make the following order:
Pursuant to s 562A(3)(b)(iii) of the Industrial Relations Act 2016, the Appellant's appeal will not be heard.