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  4. Harris v State of Queensland (Queensland Health) - [2022] QIRC 153

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Harris v State of Queensland (Queensland Health)[2022] QIRC 153

Harris v State of Queensland (Queensland Health)[2022] QIRC 153

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Harris v State of Queensland (Queensland Health) [2022] QIRC 153

PARTIES:

Harris, Tanja

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO.:

PSA/2022/351

PROCEEDING:

Public Service Appeal

DELIVERED ON:

6 May 2022

HEARD AT:

On the papers

MEMBER:

McLennan IC

ORDER:

  1. The appeal is dismissed for want of jurisdiction.

CATCHWORDS:

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 – consideration of prospects of success

LEGISLATION:

Industrial Relations Act 2016 (Qld) s 564

Public Service Act 2008 (Qld) s 194

CASES:

Health Employment Directive No. 12/21 cl 7, cl 8, cl 10

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

Clarke v State of Queensland (Queensland Health) [2022] QIRC 089

Davies v State of Queensland (Queensland Health) [2022] QIRC 151

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

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

Slykerman v State of Queensland (Queensland Health) [2022] QIRC 039

Sunny v State of Queensland (Queensland Health) [2022] QIRC 119

Tilley v State of Queensland (Queensland Health) [2022] QIRC 002

Tonia Shelley v McRoberts Agency [2009] 190 QGIG 189

Reasons for Decision

Introduction

  1. [1]
    Mrs Tanja Harris (the Appellant) is employed by Queensland Health, State of Queensland (the Respondent) as a Registered Nurse at Gympie Hospital.[1]
  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]
  1. [3]
    Directive 12/21 became effective from 11 September 2021.[3]
  1. [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:

  1. a.
    have received at least the first dose of a COVID-19 vaccine by 30 September 2021; and
  1. 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:

  1. 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.
  1. 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.

  1. [5]
    The Respondent categorised Mrs Harris' 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]
  1. [6]
    On 30 September 2021, Mrs Harris submitted an exemption application under cl 10.2 of Directive 12/21 on the basis of "other exceptional circumstances" with reference to a letter from Kennedy Spanner Lawyers dated 27 September 2021 and a cover letter. The exemption application was also submitted on the basis of "medical contraindications" and Mrs Harris indicated that a letter from her treating medical practitioner would follow shortly.[5]
  1. [7]
    On 1 October 2021, Mrs Harris provided the Respondent with a medical certificate from Dr David Kirkman, General Practitioner at Maple Street Surgery dated 30 September 2021.[6]
  1. [8]
    By letter dated 6 January 2022, the Respondent advised Mrs Harris of its decision to refuse her exemption request. This original refusal was conveyed in correspondence from Mr Warren Campbell, Acting Director HR Operations at Sunshine Coast Hospital and Health Service (SCHHS).[7]
  1. [9]
    On 26 January 2022, Mrs Harris requested an internal review of the decision to deny her exemption application.[8]
  1. [10]
    By letter dated 2 February 2022, the Respondent advised Mrs Harris that an internal review of the original exemption refusal had been conducted and the Respondent had determined to further deny the exemption request (the Exemption Decision). The Exemption Decision was conveyed in correspondence from Mr Andrew Leggate, A/Chief Information and Infrastructure Office at SCHHS.
  1. [11]
    On 3 March 2022, Mrs Harris filed an Appeal Notice with the Industrial Registry.

Jurisdiction

The decision subject of this appeal

  1. [12]
    On p 3 of the Appeal Notice, Mrs Harris identifies the type of decision being appealed:

I am appealing a current discipline decision. Date discipline decision takes effect: 11/02/2022

  1. [13]
    As is required, Mrs Harris indicated on the Appeal notice that she had attached a copy of the decision she is appealing.[9] Mrs Harris attached two pieces of correspondence to her Appeal Notice. The first is the initial refusal of Mrs Harris' exemption application, conveyed in correspondence dated 6 January 2022 from Mr Warren Campbell of SCHHS. That correspondence included the statement, "Should you fail to follow this lawful direction, you may be liable for disciplinary action pursuant to section 187(1)(d) of the Public Service Act 2008."[10] Mr Campbell advised Mrs Harris that if she was not satisfied with his decision, she could write to the Health Service Chief Executive to request a review. Mrs Harris proceeded to do so on 26 January 2022.[11]
  1. [14]
    The second decision annexed to the Appeal Notice is the Exemption Decision (i.e., the internal review decision), conveyed in correspondence dated 2 February 2022 from Mr Andrew Leggate of SCHHS which confirms Mr Campbell's earlier decision. Mr Leggate advised Mrs Harris that if she was not satisfied with the Exemption Decision (i.e., the internal review of her grievance), she may lodge a Public Service Appeal with the Industrial Registry.[12]
  1. [15]
    Although it is the Exemption Decision dated 2 February 2022 that is subject of this Appeal, I reviewed both pieces of correspondence attached to the Appeal Notice and have been unable to identify any form of disciplinary decision within. Further, Mrs Harris' submissions pertain specifically to the decision to reject her exemption application and do not shed any light on a "discipline decision".
  1. [16]
    It may be the case that Mrs Harris considers a decision to reject her exemption application or the comment that she "may be liable for disciplinary action" to constitute a disciplinary decision. However, in Graffunder v State of Queensland (Queensland Health) ("Graffunder"),[13] I concluded that correspondence constituting a show cause notice or pertaining to proposed disciplinary action is not capable of being appealed.[14]
  1. [17]
    In Hutchison v State of Queensland (Queensland Health) ('Hutchison'), 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.[15]

  1. [18]
    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).[16]
  1. [19]
    Notwithstanding, s 194(1)(eb) of the PS Act provides that an appeal may be made against "a decision a public service employee believes is unfair and unreasonable (a fair treatment decision)." I am satisfied that Mrs Harris used her employer's individual employee grievances process by requesting an internal review of Mr Campbell's decision and as such, find that the Exemption Decision dated 2 February 2022 is appealable. I will now proceed to consider the appeal against the Exemption Decision only.

Timeframe to appeal

  1. [20]
    Section 564(3) of the IR Act requires that an appeal be lodged within 21 days after the day the decision appealed against is given. That is the relevant inquiry with respect to timeframes. I note that despite the question posed in the Form 89 – Appeal Notice regarding when the decision was received.
  1. [21]
    The Exemption Decision is dated 2 February 2022 and I am satisfied it was emailed to Mrs Harris at 8:51am on 3 February 2022.[17] Mrs Harris claims she received the Exemption Decision by way of registered post on 11 February 2022.[18] I note it is not entirely clear whether Mrs Harris is alleging that was the first time she received the Exemption Decision as Mrs Harris does not expressly deny receiving the 3 February 2022 email. Notwithstanding, for the purpose of s 564(3) of the IR Act - the Exemption Decision was evidently given to Mrs Harris by way of email on 3 February 2022.
  1. [22]
    As the Exemption Decision was given to Mrs Harris on 3 February 2022, the deadline for filing the Appeal Notice was 24 February 2022.[19]
  1. [23]
    Mrs Harris filed the Appeal Notice with the Industrial Registry on 3 March 2022. That is, seven days out of time.
  1. [24]
    I am empowered by the IR Act to extend the time for filing an appeal notice.[20]

Should time for filing be extended?

  1. [25]
    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]
  1. [26]
    Mrs Harris bears the positive burden of demonstrating that the justice of the case requires the indulgence of an extension of time to file the Appeal Notice.[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 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]

  1. [27]
    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.
  1. [28]
    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 Services[26] 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.
  1. [29]
    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. 
  1. [30]
    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 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]

  1. [31]
    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

  1. [32]
    The Appeal Notice was filed seven days out of time.
  1. [33]
    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]
  1. [34]
    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.
  1. [35]
    In conjunction with the reasons that follow, I find that a delay of seven days is significant and unreasonable in these circumstances.

Explanation for the delay

  1. [36]
    Mrs Harris rejects that there was a delay in filing the Appeal Notice because:
  • she received the Exemption Decision by way of registered post on 11 February 2022 and therefore the filing of the Appeal Notice on 3 March 2022 was within time;[32]
  • both decisions refusing her exemption application were sent to her via registered post;
  • the first refusal decision stipulated a 14-day timeframe for Mrs Harris to request an internal review "starting from the day of receiving their correspondence by registered post";
  • Mrs Harris submitted the internal review request within 14 days of receiving the letter via registered post and the Respondent did not take issue with the time frame then;
  • "emails can only ever be looked upon as an additional means of communication, but not be relied upon for important correspondence";
  • internet coverage varies according to circumstances and does not always work during times of prolonged rain and thunderstorms;
  • in February 2022, Mrs Harris' area experienced a lot of extreme weather events including extreme flooding for six days that impacted on internet availability and she did not have any reception for either internet or phone for seven days;
  • Mrs Harris did not send Queensland Health any read receipts of having received emails;
  • it can be verified that Mrs Harris picked up the registered post on 11 February 2022; and
  • Mrs Harris confirmed with her line manager that the 21 days started from the day of receiving the letter by registered post.[33]
  1. [37]
    With respect to Mrs Harris' submissions, I note firstly it is not entirely clear whether Mrs Harris is alleging that she did not receive the Exemption Decision attached to the 3 February 2022 email until after she received it via registered post on 11 February 2022 or whether she is alleging that the seven-day period of no internet fell between 3 February 2022 and 11 February 2022. Alternatively, it is unclear whether Mrs Harris is alleging that she was disadvantaged by a seven-day period of no internet that fell sometime within the 21 day appeal period. Unfortunately, in not being clear on these points and for the reasons that follow, I am not satisfied that Mrs Harris has discharged the burden of demonstrating that the justice of the case requires the indulgence of an extension of time to file the appeal.[34]
  1. [38]
    For the reasons outlined at [20] to [23] above, I have already established that Mrs Harris filed her Appeal Notice out of time because I have accepted the Exemption Decision was given to Mrs Harris on 3 February 2022.
  1. [39]
    Although Mrs Harris submits that both refusal letters were sent to her via registered post, I note that both refusal letters had been sent via email also.[35]
  1. [40]
    Notably, the original refusal decision dated 6 January 2022 stated:

If you are not satisfied with my decision in relation to your request, you may write to the Health Service Chief Executive within 14 days of receipt of this letter, to request a review of this decision.  

  1. [41]
    Mrs Harris indicated in her submissions that the Respondent had stated in the correspondence that she could make the internal review request within 14 days "starting from the day of receiving their correspondence by registered post". Having read the correspondence myself and particularly the extract at [40] above, I find that Mrs Harris' submission is misleading and incorrect as it did not specify that the 14 days commenced from receipt "by registered post". Regardless, even if the Respondent agreed to accept a review request outside of their 14-day timeframe, that is at the discretion of the Respondent. An appeal to the Industrial Registry carries a legislatively prescribed time limit of 21 days and can only be allowed after the appeal period at the discretion of the Commission. The Commission is not bound by any flexibility of the Respondent's own timeframes at their own discretion.
  1. [42]
    I have reviewed the various attachments to the Respondent's Submissions filed 21 March 2022 and note that Mrs Harris frequently engaged in correspondence via email with the Respondent[36] and with the Industrial Registry also. On that basis, I find that Mrs Harris had previously received and issued emails and knew that she could expect to be notified of outcomes with respect to her employment via email in the first instance. That is, including important correspondence that would contain strict timeframes.
  1. [43]
    Furthermore, the cover email attaching the Exemption Decision clearly stipulates:

The correspondence attached is being issued to you to inform you of the outcome of your exemption review request and it is imperative that you read and action the correspondence accordingly.[37]

  1. [44]
    That comment clearly stipulates to Mrs Harris that any action she intended to commence (i.e., filing an Appeal Notice) needed to be actioned in accordance with that correspondence from that date. In my view, it is not reasonable for Mrs Harris to expect she could wait to receive the letter in the mail prior to actioning the correspondence.
  1. [45]
    I reject Mrs Harris' comment that emails should not be relied upon for important correspondence, particularly when there is evidence that she has previously received and corresponded via that mechanism. Mrs Harris has provided no basis for her comment and I note that r 28(1)(g)(ii) of the Industrial Relations (Tribunals) Rules 2011 (Qld) contemplates that documents may be served via email and is not deemed secondary to postal service.
  1. [46]
    I sympathise with the weather events and consequences described by Mrs Harris that affected her area in February 2022. However, the evidence before me suggests that Mrs Harris was utilising a computer and internet at the very least on or about 5 February 2022 and 18 February 2022 - i.e., two dates prior to the due date of an Appeal Notice on 24 February 2022. For example, Attachment 6 of the Respondent's Submissions is a "Notice of non-consent, conscientious objection and further and better particulars" dated 5 February 2022. That document is from Mrs Harris and lists several recipients, including both their postal and email addresses. Further, Attachment 7 of the Respondent's Submissions is a "Notice of Intention to Lodge Discrimination Complaint" which again lists several recipients and includes both their postal and email addresses. The Respondent submits that Mrs Harris provided the two notices on the dates they are dated which seemingly indicates they were emailed and received contemporaneously rather than just posted.
  1. [47]
    Mrs Harris may have experienced seven days of internet and phone reception issues, however the timeframe within which to file an Appeal is 21 days and therefore I am not satisfied that a seven-day period of "patchy" or no internet justifies the late filing of an Appeal Notice. That is particularly my view in light of evidence that Mrs Harris had spent the time preparing various Notices which perhaps ought to have instead been utilised to prepare her Appeal Notice.
  1. [48]
    Finally, the vague reference to a conversation with an unnamed line manager does not excuse the late filing. Although unfortunate that misleading information may have been given, the Exemption Decision and cover email made clear that Mrs Harris had 21 days within which to file an Appeal Notice and that it was imperative that she read and action the correspondence given on 3 February 2022 accordingly.
  1. [49]
    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.
  1. [50]
    Mrs Harris bears the positive burden of demonstrating that the justice of the case requires the indulgence of an extension of time to file the appeal.[38] On the balance of the evidence before me, Mrs Harris has not discharged that onus. Even if I am wrong in an aspect of this consideration, it is a culmination of the following factors that has contributed to my decision to not hear this Appeal out of time.

Conduct of the Respondent

  1. [51]
    Through the Exemption Decision, the Respondent advised Mrs Harris 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.[39]

  1. [52]
    That Mrs Harris 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. Although Mrs Harris made mention of a conversation she had with her line manager, considering the totality of factors I do not find that the delay in filing the Appeal Notice was the fault of the Respondent. 
  1. [53]
    The Respondent's advice of the appeal period supports the proposition that the length of the delay was unreasonable, and that an inadequate explanation for the delay is unacceptable.[40]

Prospects of success

  1. [54]
    An Appellant's prospects of success at a substantive hearing is a relevant consideration.[41] 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, 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.[42]

  1. [55]
    I have reviewed Mrs Harris' arguments in support of an exemption which fall under the following themes:
  • Mrs Harris provided a letter from her general practitioner outlining medical conditions and history;
  • research has indicated getting the COVID-19 vaccination would pose a significant risk;
  • alternative working arrangements;
  • non-consent, coercion and conscientious objection;
  • mandatory COVID-19 vaccinations not part of contractual agreement;
  • concerns about suffering potential adverse reactions;[43]
  • a personal risk assessment has not been provided;
  • reasonable excuse;
  • COVID-19 positive staff have been permitted to work without follow-up testing to confirm negative status;
  • unlawfulness under criminal law;
  • human rights breaches;[44] and
  • the COVID-19 vaccinations are still in trial phase.[45]
  1. [56]
    I have also considered the Respondent's submissions for why it contends the Exemption Decision is fair and reasonable, outlined at [22] - [39] of its submissions filed 21 March 2022.
  1. [57]
    I turn firstly to the exemption application on the grounds of medical contraindications. The Employee COVID-19 vaccine exemption application form provides the evidence requirements for such a request:

An employee is required to provide a medical certificate from their treating specialist medical practitioner certifying:

  • that the employee is unable to receive any COVID-19 vaccination because they have a recognised medical contraindication to the vaccine
  • whether the medical contraindication will permanently or temporarily prevent COVID-19 vaccination
  • if the medical contraindication is temporary in nature, when the employee may be able to receive the COVID-19 vaccination.[46]
  1. [58]
    The relevant medical certificate stipulates the following:
  • Mrs Harris has advised her general practitioner of a history of experiencing severe reactions to the influenza vaccination;
  • Mrs Harris suffers from Hashimotos Thyroiditis and asthma;
  • Mrs Harris reports there is a family history of blood clots, DVT's and pulmonary embolus; and
  • Mrs Harris' conditions are permanent in nature.
  1. [59]
    Notably, the medical practitioner did not certify that Mrs Harris is unable to receive any COVID-19 vaccination because of a recognised medical contraindication to the vaccine. Although the medical certificate states Mrs Harris' "conditions" are permanent in nature, it does not certify whether the conditions are a recognised medical contraindication to the COVID-19 vaccination and if so, whether the medical contraindications will permanently or temporarily prevent the COVID-19 vaccination.
  1. [60]
    In Radev v State of Queensland (Queensland Police Service), I found:

The VEC did not conclude Mr Radev is able to be safely administered the vaccination, rather they concluded that no evidence had been provided to indicate he is unable to be safely administered the vaccine. As concluded above, this fact tended to support that Mr Radev's application had been made purely on the basis of fear for an adverse reaction. For the reasons outlined, I reject the argument that the Decision was unfair and unreasonable because of reference to a lack of medical evidence.[47]

  1. [61]
    Although the medical certificate references several serious conditions, it does not meet the evidentiary requirements necessary to obtain a COVID-19 exemption. Therefore, Mrs Harris' prospects of success in this regard are limited. 
  1. [62]
    The 'exceptional circumstances' presented by Mrs Harris are largely analogous to those presented in the following matters which I have recently decided:
  • Graffunder v State of Queensland (Queensland Health);[48]
  • Sunny v State of Queensland (Queensland Health);[49]
  • Clarke v State of Queensland (Queensland Health);[50] and
  • Davies v State of Queensland (Queensland Health).[51]
  1. [63]
    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.[52]

…

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.[53]

  1. [64]
    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.
  1. [65]
    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.[54]

  1. [66]
    In Sunny, I considered alternative, less restrictive options:

Ms Richards determined there was no other less restrictive yet effective way to ensure the readiness of the health system in responding to the COVID-19 pandemic to protect the lives of all who are associated with WMH. Mr Sunny's role requires direct contact with patients and a range of clinical and non-clinical employees. I am not convinced that there are any less restrictive and reasonably available ways to achieve the purpose of Directive 12/21.[55]

  1. [67]
    At [63] - [65] of Sunny, I also considered consultation obligations and risk assessments:

The Respondent submits that prior to the introduction of Directive 12/21, the Respondent complied with its obligations under the Work Health and Safety Act 2011 (Qld) to consult with employees and with the registered unions representing employees. That consultation included dedicated meetings with registered unions representing employees employed within the Department. Mr Sunny did not respond to these submissions despite being given the opportunity to do so.

Further, the Respondent submits it conducted appropriate risk assessments prior to the implementation of Directive 12/21. The Respondent submits it is impracticable for the Department to conduct a personalised risk assessment for each affected worker but they undertook risk assessments for the whole workforce in satisfaction of their obligations under the Work Health and Safety Regulation 2011 (Qld). The Respondent contends the Director-General of Queensland Health received regular briefings from the Chief Health Officer regarding the risks of COVID-19 including a specific briefing on employees identified as working in high-risk roles. From these briefings, the Director-General satisfied himself that there was a demonstrable level of risk. Mr Sunny did not respond to these submissions despite being given the opportunity to do so.

I conclude that these remaining matters raised by Mr Sunny evince his personal preference not to receive the COVID-19 vaccination. I do not consider those matters to render the Exemption Decision unfair or unreasonable.

  1. [68]
    Industrial Commissioner Dwyer also commented on requests for risk assessments in Slykerman v State of Queensland (Queensland Health):

While not directly contended, Ms Slykerman presumably does not accept that she poses a heightened risk of transmission to colleagues and clients if she remains unvaccinated and consequently, she insists on proof. Ms Slykerman has adopted a position whereby she considers that the Health Service bears the onus to prove the reasonableness of the direction for her to be vaccinated. Ms Slykerman, without any lawful basis to do so, continues to demand access to the risk assessment undertaken by the Health Service in relation to vaccines, and proof that she is a heightened risk of transmission.

The difficulty for Ms Slykerman in adopting this position is that the weight of medical and scientific evidence is against her. The Directive has its origins in a directive issued by the Chief Health Officer. The Chief Health Officer is the most senior medical officer in the State of Queensland. It is trite to observe that all policy and laws regarding regulation and control of the population (at a State and Federal level) during the pandemic have been made with medical and scientific data at their foundation.[56]

  1. [69]
    With respect to the medical research conducted by Mrs Harris herself, I adopt a similar view to that expressed by Industrial Commissioner Hartigan in Tilley v State of Queensland (Queensland Health) below:

The other matters, referred to above, raised by Mr Tilley form the basis of his personal preference not to receive a vaccine. I do not consider the matters relied on by Mr Tilley result in Directive 12/21 being unreasonable. In this regard, cl 6 of Directive 12/21 identifies the risk posed by the virus to staff, patients and the broader community and the Directive is aimed at minimising such a risk. I consider that to be reasonable.

Whilst Mr Tilley clearly has a personal view with respect to the vaccines and relies on information that purportedly supports his view, it is not encumbent upon the Department to accept Mr Tilley's view. The information proffered by Mr Tilley does not persuade me that Directive 12/21 was not reasonable and lawful.[57]

  1. [70]
    Ultimately, each matter needs to be assessed on its own merits. Mrs Harris' circumstances are different to the circumstances of the other appellant's referred to above - however the arguments raised are very similar and the excerpts above tend to show how those arguments have fared in the past. For example, the same letter Mrs Harris provided and relied upon from Kennedy Spanner Lawyers was also relied upon by the appellant in Davies v State of Queensland (Queensland Health).[58]
  1. [71]
    I am satisfied that the original refusal decision specifically addressed Mrs Harris' concerns regarding safety of the COVID-19 vaccine particularly due to her medical history and conditions, concerns regarding risk and consultation and concerns about her ability to provide free and informed consent.
  1. [72]
    Further, I am satisfied that the subsequent Exemption Decision appropriately considered all of the relevant information and took into consideration Mrs Harris' human rights.
  1. [73]
    Overall, upon review of Mrs Harris' specific circumstances and submissions, 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 Harris' prospects of success are extremely limited.

Prejudice to Mrs Harris

  1. [74]
    Mrs Harris 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.
  1. [75]
    That outcome is of course not an insubstantial detriment to Mrs Harris, who seeks to appeal a decision to not grant her an exemption against receiving the COVID-19 vaccine.
  1. [76]
    However, I have concluded above that Mrs Harris has limited prospects of success and therefore while I accept there is some prejudice to Mrs Harris, I do not consider that to be significant.

Prejudice to the Respondent

  1. [77]
    It is important to note that delay itself is considered to give rise to a general presumption of prejudice to the Respondent.[59] Furthermore, minimal additional prejudice to the Respondent in and of itself is an insufficient basis to grant an extension of time.[60]
  1. [78]
    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.
  1. [79]
    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

  1. [80]
    Mrs Harris filed her Appeal Notice seven days out of time but has not provided a clear or persuasive explanation for that delay.
  1. [81]
    There is a suite of relevant considerations in exercising my discretion to hear an appeal out of time. Foremost, I should be satisfied that Mrs Harris has a reasonable ground for extending the time.
  1. [82]
    I have found that the Respondent advised Mrs Harris of her rights of appeal, including the relevant timeframe. I am satisfied Mrs Harris was provided with all the relevant information she required to file this Appeal within time.
  1. [83]
    I have not been presented with an acceptable reason to depart from the legislatively prescribed timeframe of 21 days.
  1. [84]
    Mrs Harris will suffer some prejudice resulting from my decision to decline to hear the Appeal out of time as she will not receive an independent review of the Exemption 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.
  1. [85]
    If I proceeded to hear the Appeal out of time, the prejudice to be suffered by the Respondent is also relevant.
  1. [86]
    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.
  1. [87]
    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.
  1. [88]
    I order accordingly.

Order:

  1. The appeal is dismissed for want of jurisdiction.

Footnotes

[1] Appeal Notice, 3 March 2022, 1.

[2] Health Employment Directive No. 12/21 cls 1, 7-8.

[3] Ibid 1.

[4] Respondent's Submissions, 21 March 2022, 2 [13].

[5] Employee COVID-19 vaccine exemption application form, 30 September 2021, 3 and 5; Appeal Notice, 3 March 2022, Part C Schedule.

[6] Respondent's Submissions, 21 March 2022, 2 [15]

[7] Letter from Mr W. Campbell to Mrs T. Harris, 6 January 2022.

[8] Email from Mrs T. Harris to various contacts of the Respondent, 26 January 2022; Appeal Notice, 3 March 2022, Part C Schedule.  

[9] Appeal Notice, 3 March 2022, 3.

[10] Letter from Mr W. Campbell to Mrs T. Harris, 6 January 2022.

[11] Email from Mrs T. Harris to various contacts of the Respondent, 26 January 2022; Appeal Notice, 3 March 2022, Part C Schedule.  

[12] Letter from Mr A. Leggate to Mrs T. Harris, 2 February 2022.

[13] [2022] QIRC 076, 5 [19].

[14] Ibid.

[15] [2021] QIRC 317.

[16] [2022] QIRC 030, 5 [15].

[17] Respondent's Submissions, 21 March 2022, 3 [18], Attachment 5.

[18] Appeal Notice, 3 March 2022, Part C Schedule.

[19] Industrial Relations Act 2016 (Qld) s 564(3).

[20] Ibid 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.

[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.

[28] (2009) 239 CLR 175, [30].

[29] Letter from Mr A. Leggate to Mrs T. Harris, 2 February 2022. 

[30]Tonia 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 Submissions in Reply, 28 March 2022.

[33] Ibid.

[34] 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.

[35] Respondent's Submissions, 21 March 2022, Attachment 3 and Attachment 5.

[36] 30 September 2021, 1 October 2021, 26 January 2022, 3 March 2022, 14 March 2022, 28 March 2022.

[37] Email from COVID-19 Vaccination Exemption Team, SCHHS to Ms T. Harris, 3 February 2022.

[38] 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.

[39] Letter from Mr A. Leggate to Mrs T. Harris, 2 February 2022.  

[40] Lloyd v Department of Communities, Child Safety and Disability Services [2013] QIRC 129.

[41] 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.

[42] [2010] ICQ 35, [6].

[43] Appeal Notice, 3 March 2022, Part C Schedule.

[44] Appellant's Submissions, 22 March 2022.

[45] Appellant's Submissions in Reply, 28 March 2022.

[46] Employee COVID-19 vaccine exemption application form, 3.

[47] [2021] QIRC 414, 15 [61].

[48] [2022] QIRC 076.

[49] [2022] QIRC 119.

[50] [2022] QIRC 089.

[51] [2022] QIRC 151.

[52] [2022] QIRC 076, 14 [57].

[53] Ibid 15 [63].

[54] Ibid 17 [70].

[55] [2022] QIRC 119, 14 [60].

[56] [2022] QIRC 039, 7 [35]-[36].

[57] [2022] QIRC 002, 13 [39]-[42].

[58] [2022] QIRC 151.

[59] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 556.

[60] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 300.

Close

Editorial Notes

  • Published Case Name:

    Harris v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Harris v State of Queensland (Queensland Health)

  • MNC:

    [2022] QIRC 153

  • Court:

    QIRC

  • Judge(s):

    Member McLennan IC

  • Date:

    06 May 2022

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
2 citations
Jump To
Cite 1 - (2009) 239 CLR 175
Cite 2 - (2009) 239 CLR 175
Breust v Qantas Airways Limited (1995) 149 QGIG 777
2 citations
Jump To
Cite 1 - (1995) 149 QGIG 777
Cite 2 - (1995) 149 QGIG 777
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
6 citations
Jump To
Cite 1 - (1996) 186 CLR 541
Cite 2 - (1996) 186 CLR 541
Cite 3 - (1996) 186 CLR 541
Cite 4 - (1996) 186 CLR 541
Cite 5 - (1996) 186 CLR 541
Cite 6 - (1996) 186 CLR 541
Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298
2 citations
Jump To
Cite 1 - (1995) 67 IR 298
Cite 2 - (1995) 67 IR 298
Clarke v State of Queensland (Queensland Health) [2022] QIRC 89
2 citations
Jump To
Cite 1 - [2022] QIRC 89
Cite 2 - [2022] QIRC 89
Davies v State of Queensland (Queensland Health) [2022] QIRC 151
3 citations
Jump To
Cite 1 - [2022] QIRC 151
Cite 2 - [2022] QIRC 151
Cite 3 - [2022] QIRC 151
Erhardt v Goodman Fielder Food Services Ltd. (1999) 163 QGIG 20
3 citations
Jump To
Cite 1 - (1999) 163 QGIG 20
Cite 2 - (1999) 163 QGIG 20
Cite 3 - (1999) 163 QGIG 20
Graffunder v State of Queensland (Queensland Health) [2022] QIRC 76
6 citations
Jump To
Cite 1 - [2022] QIRC 76
Cite 2 - [2022] QIRC 76
Cite 3 - [2022] QIRC 76
Cite 4 - [2022] QIRC 76
Cite 5 - [2022] QIRC 76
Cite 6 - [2022] QIRC 76
Higgins v State of Queensland (Queensland Health) [2022] QIRC 30
2 citations
Jump To
Cite 1 - [2022] QIRC 30
Cite 2 - [2022] QIRC 30
House v The King (1936) 55 CLR 499
2 citations
Jump To
Cite 1 - (1936) 55 CLR 499
Cite 2 - (1936) 55 CLR 499
Hutchison v State of Queensland (Queensland Health) [2021] QIRC 317
1 citation
Jump To
Cite 1 - [2021] QIRC 317
Lloyd v Department of Communities, Child Safety and Disability Services [2013] QIRC 129
4 citations
Jump To
Cite 1 - [2013] QIRC 129
Cite 2 - [2013] QIRC 129
Cite 3 - [2013] QIRC 129
Cite 4 - [2013] QIRC 129
Megan Reimers v Aramaki Company (Australia) t/a Camira Child Care Centre [2002] 170 QGIG 1010
4 citations
Jump To
Cite 1 - [2002] 170 QGIG 1010
Cite 2 - [2002] 170 QGIG 1010
Cite 3 - [2002] 170 QGIG 1010
Cite 4 - [2002] 170 QGIG 1010
Patterson v Medical Benefits Fund of Australia Limited (1998) 159 QGIG 232
3 citations
Jump To
Cite 1 - (1998) 159 QGIG 232
Cite 2 - (1998) 159 QGIG 232
Cite 3 - (1998) 159 QGIG 232
Piggott v State of Queensland [2010] ICQ 35
2 citations
Jump To
Cite 1 - [2010] ICQ 35
Cite 2 - [2010] ICQ 35
Radev v State of Queensland (Queensland Police Service) [2021] QIRC 414
1 citation
Jump To
Cite 1 - [2021] QIRC 414
Slykerman v State of Queensland (Queensland Health) [2022] QIRC 39
2 citations
Jump To
Cite 1 - [2022] QIRC 39
Cite 2 - [2022] QIRC 39
Sunny v State of Queensland (Queensland Health) [2022] QIRC 119
3 citations
Jump To
Cite 1 - [2022] QIRC 119
Cite 2 - [2022] QIRC 119
Cite 3 - [2022] QIRC 119
Tilley v State of Queensland (Queensland Health) [2022] QIRC 2
2 citations
Jump To
Cite 1 - [2022] QIRC 2
Cite 2 - [2022] QIRC 2
Tonia Shelley v McRoberts Agency [2009] 190 QGIG 189
2 citations
Jump To
Cite 1 - [2009] 190 QGIG 189
Cite 2 - [2009] 190 QGIG 189

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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