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Steel v State of Queensland (Queensland Health)[2022] QIRC 158

Steel v State of Queensland (Queensland Health)[2022] QIRC 158

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Steel v State of Queensland (Queensland Health) [2022] QIRC 158

PARTIES:

Steel, Belinda

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO.:

PSA/2022/390

PROCEEDING:

Public Service Appeal

DELIVERED ON:

11 May 2022

MEMBER:

HEARD AT:

Power IC

On the papers

ORDER:

The appeal is dismissed for want of jurisdiction.

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – Public Service Appeal – appeal against a disciplinary finding decision – allegation substantiated – appeal lodged out of time – whether extension of time should be granted – extension of time not granted

LEGISLATION:

Hospital and Health Boards Act 2011 (Qld), s 51A

Industrial Relations Act 2016 (Qld), s 564

Public Service Act 2008 (Qld), s 194

CASES:

A1 Rubber (Aust) Pty Ltd v Chapman (Office of Industrial Relations) [2019] ICQ 16

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

Bruce Anthony Piggott v State of Queensland [2010] ICQ 35

Chapman v State of Queensland [2003] QCA 172

Reasons for Decision

Introduction

  1. [1]
    Mrs Belinda Steel ('the Appellant') is employed by the State of Queensland (Queensland Health) ('the Respondent') as an AO3, Administration Officer, Cancer and Blood Disorders at Gold Coast University Hospital within Gold Coast Hospital and Health Service ('GCHHS').
  1. [2]
    On 12 January 2022, the Appellant was issued with a notice to show cause ('the NTSC') by Mr Grant Brown, Acting Executive Director, People and Culture, GCHHS, outlining the following allegation:

ALLEGATION ONE

Between 11 September 2021 and 8 November 2021 you did not provide the Health Service with evidence of vaccination confirming that you have received the prescribed number of doses of a COVID-19 vaccine.

  1. [3]
    On 25 January 2022, the Appellant provided a response to the NTSC and on 7 February 2022, Mr Brown issued a disciplinary finding decision ('the decision'), substantiating the allegation, advising that the Appellant had contravened without reasonable excuse, a direction given to her as a public service employee by a responsible person under s 187(1)(d) of the Public Service Act 2008 (Qld) ('the PS Act'). The Appellant was further advised that serious consideration was being given to impose a disciplinary action of termination of the Appellant's employment. The Appellant was provided with seven days to provide a response to the proposed disciplinary action.
  1. [4]
    On 14 February 2022, the Appellant provided a response to the decision.
  1. [5]
    By appeal notice filed on 23 March 2022, the Appellant appeals the decision pursuant to s 194 of the PS Act.
  1. [6]
    Following receipt of the appeal notice, it was evident that the appeal was filed beyond the 21 day statutory time limit. Accordingly, the jurisdictional issue must first be considered to determine whether discretion is exercised to extend the timeframe in which the appeal may be filed pursuant to s 564 of the Industrial Relations Act 2016 (Qld) ('the IR Act'). A Directions Order was issued to parties, calling for submissions as to whether an extension of time should be granted.

The Directive

  1. [7]
    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 the Health Employment Directive 12/21 regarding employee COVID-19 vaccination requirements ('the Directive').
  1. [8]
    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.
  1. [9]
    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.

  1. [10]
    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.

Grounds of appeal

  1. [11]
    In the appeal notice, the Appellant outlined the following reasons for appeal:

…The basis of my appeal is: due COVID vaccination

a) I have a Medical Exemption from my GP.

b) I have natural immunity as to my positive blood serology antibody test and my GP has given a 4 month exemption.

c) I have requested a risk assessment happy to work from home, relocate to another area where PPE wear, have weekly tests.

d) This whole process has caused me such stress and affecting my mental health status I am seeing paid councillor offered by Qld Health.

Appellant's Submissions

  1. [12]
    The Appellant did not file any submissions in support of her appeal.

Respondent's Submissions

  1. [13]
    The Respondent submits that any appeal against the decision was required to be filed by 28 February 2021 and the Appellant was expressly advised by Mr Brown that she was required to file any appeal against the decision within 21 days. The Respondent submits that the appeal was therefore, filed 'some 21 days late'.
  1. [14]
    The Respondent highlights that the Appellant's response to the decision on 14 February 2022 expressly notes that she has read the decision on 8 February 2022. The Respondent further highlights that the Appellant has not provided any explanation for the reason she filed the appeal out of time and that the Appellant has not complied with the Directions Order as she did not file any submissions as to why an extension of time should be granted.
  1. [15]
    The Respondent notes that the Appellant applied for an exemption to the mandatory vaccine requirements of the Directive on 28 September 2021 identifying 'other exceptional circumstances' and again on 15 October 2021 identifying a 'medical contraindication'. The exemption application was refused on 27 October 2021 and the refusal was confirmed on 17 November 2021 by Mr Brown upon an internal review request made by the Appellant on 14 November 2021.
  1. [16]
    The Respondent made further submissions regarding the decision being fair and reasonable. The Respondent submits, in summary, that:
  1. (a)
    it is not in dispute that the Appellant has not received a COVID-19 vaccine and therefore, it is not in dispute that the Appellant has failed to comply with the Directive;
  1. (b)
    the Appellant did not have a reasonable excuse for failing to comply with the Directive, noting that:
  1. (i)
    the Appellant does not have an approved exemption from compliance of the Directive;
  1. (ii)
    Mr Brown considered there was insufficient medical information to support a finding that the Appellant had a recognised medical contraindication to receiving a COVID-19 vaccine. The Appellant did not provide any evidence of a medical condition which meant she was unable to be safely administered the current vaccines and that she suffers a medical contraindication in accordance with the Australian Immunisation Handbook; and
  1. (iii)
    although the Appellant advised she had recently tested positive for COVID-19 on a Rapid Antigen Test and her general practitioner had provided a medical certificate stating she should have an exemption from vaccination for six months, this was more than two months after the Appellant was required to have received the second dose of a COVID-19 vaccine;
  1. (c)
    Mr Brown carefully considered the Appellant's submissions and weighed them against the objects and requirements of the Directive but was not satisfied the Appellant had a reasonable excuse for her non-compliance with the Directive, or that she had demonstrated the direction to comply with the Directive was not lawful and reasonable;
  1. (d)
    the decision was procedurally fair in that the Appellant was provided an opportunity to respond to the NTSC before any decision on disciplinary findings was made, and she took advantage of that opportunity; and
  1. (e)
    Mr Brown considered the Appellant's human rights may by limited or interfered in respect to his decision to make a disciplinary finding against her. However, he was of the view that the decision was justified and reasonable in the circumstances.

Consideration

  1. [17]
    Section 564 of the IR Act provides for the time limit for appeal:

564 Time limit for appeal

  1. (1)
    An appeal against a decision to an industrial tribunal must be started, as required under the rules, within the appeal period.
  1. (2)
    However, on an application made during or after the appeal period, the industrial tribunal may allow an appeal to be started within a longer period.
  1. (3)
    In this section—

appeal period, for an appeal against a decision to an industrial tribunal, means the period within 21 days after—

  1. (a)
    if the decision is given at a hearing—the announcement of the decision at the hearing; or
  1. (b)
    if the decision is given through the registrar—the release of the decision; or
  1. (c)
    if the decision is a promotion decision—the decision is publicly notified under the Public Service Act 2008; or
  1. (d)
    if, under another Act, the decision is given in another way—the decision is given in the other way.
  1. [18]
    The Appellant bears the onus of establishing that the justice of the case requires an extension of time.[1] The statutory provision was considered in A1 Rubber (Aust) Pty Ltd v Chapman (Office of Industrial Relations) ('AI Rubber'),[2] which stated:

On an application to extend time, the approach of this Court was described by President Hall in the Neophytos Foundadjis v Collin Bailey [2007] ICQ 10 in the following way:

"This Court has traditionally adhered to the view that s. 346 of the Industrial Relations Act 1999 represents a legislative assessment that in the ordinary category of cases, justice will best be served by adhering to a 21 day limitation period, though on occasion the limitation may defeat a perfectly good case and that the discretion to extend time should be exercised only where the applicant for an extension of time discharges a positive burden of demonstrating that the justice of the case requires the indulgence of a further period."[3]

  1. [19]
    The matters to be considered when exercising the discretion were outlined in A1 Rubber, where President Martin J stated:

In order to be successful, an applicant must ordinarily discharge the burden in three ways: first, the applicant must demonstrate that the justice of the case requires the indulgence sought; secondly, the applicant must demonstrate that the case sought to be appealed has prospects of success; thirdly, there must be an explanation of the delay between the expiry of the time period and the time at which the application was filed…[4]

Explanation for delay

  1. [20]
    The decision the subject of this appeal was made on 7 February 2022. The appeal was filed on 23 March 2022 and is therefore, filed 23 days beyond the 21 day time limitation period. This is a significant delay beyond the statutory timeframe.
  1. [21]
    The Appellant did not indicate that she was applying for an extension of time to lodge the appeal in the appeal notice nor did the Appellant provide submissions seeking to lodge the appeal beyond the 21 day statutory time period.
  1. [22]
    The Appellant did not provide an explanation for the delay in filing the appeal. The Industrial Registry contacted the Appellant via email on 12 April 2022 asking whether she intended to file submissions and if so, to do so as soon as possible. The Appellant simply responded to the email on 19 April 2022 stating, 'Yes, thank you'. The Respondent subsequently filed submissions addressing the jurisdictional issue in written submissions.
  1. [23]
    Parties were provided with a further opportunity to make oral submissions or provide further written submissions pursuant to the Directions Order issued to parties. The Appellant did not seek to do so.
  1. [24]
    The parliament has legislated a 21 day time period for an appeal to be filed and the existence of compelling reasons for any delay are required to extend this timeframe. Such reasons are not evident in this matter.

Prospects of success

  1. [25]
    A consideration of the Appellant's prospects of success is necessary in determining whether an extension of time should be granted.
  1. [26]
    The Queensland Court of Appeal considered this point in Chapman v State of Queensland,[5] stating:

…In determining whether it is proper to grant the extension, it is appropriate to consider the merits of the substantive application… An extension of time will not be granted if the court considers the appeal to be plainly hopeless…[6]

  1. [27]
    The 21 day time limit should not easily be dispensed with, and where it appears that the Appellant has no, or very limited, prospects of success, the Commission would not normally grant an extension of time.[7] Having considered the material before me, I am not of the view that this appeal has good prospects of success for the reasons outlined below.
  1. [28]
    It is not in dispute that the Appellant has not received a COVID-19 vaccination and has therefore failed to comply with the Directive.
  1. [29]
    The Appellant applied for an exemption to the mandatory vaccination requirements and this application was refused. The Appellant sought an internal review of this decision and after consideration by the Respondent, the decision to refuse the exemption application was confirmed. The review decision determined that the Appellant did not provide any evidence of a recognised medical contraindication to indicate that she was unable to be safely administered a COVID-19 vaccine.
  1. [30]
    The Appellant was afforded procedural fairness in that she was provided an opportunity to respond to the NTSC before the decision was made.
  1. [31]
    The decision maker determined that after consideration of the Appellant's submissions, he was not satisfied that the Appellant had demonstrated a reasonable excuse for her decision to not comply with the Directive. The decision maker outlined the reasons for his decision, addressing the Appellant's submissions in detail. The decision noted that the Appellant's role requires that she come into contact with other staff of the GCHHS and actual and potential COVID-19 patients, and has the potential to expose other staff, patients and members of the public to the virus. In those circumstances, the decision maker did not consider that any reasonable alternative public health measures could sufficiently overcome the risks associated with these circumstances.
  1. [32]
    The allegation that the Appellant did not provide the Respondent with evidence of vaccination was substantiated and the decision maker determined that there was a ground for the Appellant to be disciplined pursuant to s 187(1)(d) of the PS Act.
  1. [33]
    In consideration of the above, I consider that the appeal has very limited prospects of success.

Justice of the case

  1. [34]
    The prejudice to the Respondent of allowing the appeal is that it will not be able to rely upon the statutory time limit, despite clearly advising the Appellant of her appeal rights and the timeframe within which an appeal should be filed in the decision:

If you believe that my decision to find the allegation above substantiated (disciplinary finding decision) is unfair and unreasonable, you may lodge an appeal under the appeal provisions of the Act within 21 days of receipt of this letter. Alternatively, you may decide to wait until the delegate has made a decision about the proposed disciplinary action and appeal both the disciplinary finding and the disciplinary action.

[emphasis added]

  1. [35]
    The consequence of not extending the time period for the Appellant is that the appeal will not be determined. The prejudice to the Appellant will be that the appeal against the decision to make disciplinary findings will not be subject to independent consideration, however, as noted above, I consider the prospects of success in this matter to be limited. In these circumstances, I am not of the view that the justice of the case requires an extension of the statutory timeframe.

Conclusion

  1. [36]
    In consideration of the above factors, I do not consider that there is a reasonable ground to extend the time for filing this appeal and have determined not to exercise my discretion pursuant to s 564(2) of the IR Act.

Order

  1. [37]
    I make the following order:

The appeal is dismissed for want of jurisdiction.

Footnotes

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

[2] [2019] ICQ 16.

[3] Ibid 2.

[4] Ibid.

[5] [2003] QCA 172.

[6] Ibid [3].

[7] Bruce Anthony Piggott v State of Queensland [2010] ICQ 35.

Close

Editorial Notes

  • Published Case Name:

    Steel v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Steel v State of Queensland (Queensland Health)

  • MNC:

    [2022] QIRC 158

  • Court:

    QIRC

  • Judge(s):

    Power IC

  • Date:

    11 May 2022

Appeal Status

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

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