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  4. Mackenzie v State of Queensland (Queensland Health) - [2022] QIRC 205

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Mackenzie v State of Queensland (Queensland Health)[2022] QIRC 205

Mackenzie v State of Queensland (Queensland Health)[2022] QIRC 205

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Mackenzie v State of Queensland (Queensland Health) [2022] QIRC 205

PARTIES:

Mackenzie, Beverley

(Applicant)

and

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

TD/2022/133

PROCEEDING:

Application for Reinstatement

Referral to Full Bench on Commissioner's own initiative

DELIVERED ON:

10 June 2022

HEARING DATE:

Conciliation conference held on 8 June 2022

MEMBER:

McLennan IC

ORDER:

  1. Pursuant to s 486(1) of the Industrial Relations Act 2016, I find that it is appropriate for this matter to be referred to the Full Bench for Hearing.

CATCHWORDS:

INDUSTRIAL LAW – APPLICATION FOR REINSTATEMENT – unfair dismissal – where Commissioner proposed referral of the matter to the Full Bench on her own initiative – where neither party objected to referral to the Full Bench – whether application should be referred to the Full Bench

LEGISLATION & OTHER

INSTRUMENTS:

Industrial Relations Act 2016 (Qld) s 451, s 452, s 486

Industrial Relations (Tribunals) Rules 2011 (Qld) r 6

Health Employment Directive No 12/21 Employee COVID-19 vaccination requirements cl 7, cl 8

CASE:

Brisbane City Council v Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland [2017] QIRC 31

Reasons for Decision

Background

  1. [1]
    Before the termination of her employment, Ms Beverley Mackenzie (the Applicant) worked as a Dental Therapist[1] at the Innisfail Hospital within the Cairns and Hinterland Hospital and Health Service (CHHHS), Queensland Health (the Department).
  1. [2]
    Ms Mackenzie had been employed by the Department for almost 40 years.[2]
  1. [3]
    As a Dental Therapist, Ms Mackenzie was subject to the mandatory vaccination requirements.[3]
  1. [4]
    The Health Employment Directive No 12/21 Employee COVID-19 vaccination requirements (the Directive) provides that:

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.[4]

…

Exemption Application

  1. [5]
    Clause 10 of the Directive provides that an exemption application will be considered by the Department where the employee has a recognised medical contraindication, the employee has a genuinely held religious belief or where another exceptional circumstance exists.
  1. [6]
    Following a volley of correspondence between Ms Mackenzie and various Departmental officers, Ms Mackenzie applied for an exemption from the vaccine mandate on 12 October 2021.
  1. [7]
    That exemption application was made on the basis of "another exceptional circumstance".  Specifically, Ms Mackenzie's concerns:
  • in relation to the risks associated with COVID-19 and the COVID-19 vaccination as it relates to her role;
  • in relation to the "safety and effectiveness" of the COVID-19 vaccine; and
  • regarding her ability to provide free and informed consent to receive the COVID-19 vaccination.
  1. [8]
    Ms Mackenzie's exemption application was refused on 3 December 2021 (the exemption refusal decision).
  1. [9]
    On 17 December 2021, Ms Mackenzie submitted a request for an internal review of the exemption refusal decision.
  1. [10]
    The internal review concluded that the exemption refusal decision was not unreasonable on 24 January 2022. 
  1. [11]
    At that time, Ms Mackenzie was advised of her right to seek an external review of that decision by filing a public service appeal in the Queensland Industrial Relations Commission (QIRC).  She elected not to do so.
  1. [12]
    A show cause process ensued.

Disciplinary Finding

  1. [13]
    The following allegation against Ms Mackenzie was found to be substantiated:

You have contravened a direction given to you, pursuant to Health Employment Directive No 12/21, you have not received your first and second dose of a COVID-19 vaccine by 31 October 2021.

Grounds for Discipline

  1. [14]
    On the basis of that disciplinary finding, it was determined that grounds for discipline arose under s 187(1)(d) of the Public Service Act 2008 (Qld) (the PS Act). 
  1. [15]
    The substantiated allegation meant that the chief executive could be reasonably satisfied that Ms Mackenzie had "contravened, without reasonable excuse, a direction given to the employee as a public service employee by a responsible person."  Specifically, the direction given at cl 8.1 of the Directive, as cited at [4] above.

Disciplinary Penalty

  1. [16]
    Ms Mackenzie's employment was terminated with immediate effect on 9 March 2022.[5]
  1. [17]
    In correspondence to Ms Mackenzie dated 9 March 2022 (the termination letter), Mr Steve Thacker, A/Chief Executive, CHHHS (the delegate) explained that he had regard to the following matters in deciding that course:
  • Ms Mackenzie's response to the show cause process;
  • his view that Ms Mackenzie was unlikely to accept the rationale underpinning the Directive, based on her response;
  • Ms Mackenzie did not contend she was compliant with the requirements of the Directive;
  • Ms Mackenzie did not have an approved exemption to the requirements of the Directive; and
  • the requirements of the Directive have not been met.

Application for Reinstatement

  1. [18]
    Ms Mackenzie submitted an application for reinstatement (the Application) to the Industrial Registry on 29 March 2022. 
  1. [19]
    As the Application was more than 30 pages in length, the Industrial Registry asked Ms Mackenzie to provide a hard copy of the Application as soon as practicable.  The Application and attachments were filed in the Industrial Registry on 12 April 2022. 
  1. [20]
    In its response to the Application filed on 12 May 2022, the Respondent indicated there were no jurisdictional or other objections.
  1. [21]
    The Applicant appointed Mr Michael Bonaccorso (the Agent) to be her Agent in this matter on 22 April 2022.

Conciliation Unsuccessful

  1. [22]
    A conciliation conference was held before me on 8 June 2022.
  1. [23]
    At the commencement of the conciliation conference, I noted the Unfair Dismissal and Reinstatement Application Guide that is publicly available on the QIRC website. 
  1. [24]
    I drew the parties' attention to the definition of unfair dismissal, pursuant to s 316 of the Industrial Relations Act 2016 (Qld) (the IR Act). 
  1. [25]
    I explained the matters the Commission must consider in deciding whether a dismissal was harsh, unjust or unreasonable, pursuant to s 320 of the IR Act.
  1. [26]
    Ultimately, the parties were unable to resolve the issues between them at the conciliation conference.
  1. [27]
    During the conciliation conference and pursuant to s 318(3)(b) of the IR Act, I informed the parties of my assessment of the merits of the matter and the possible consequences of further proceeding with the Application.
  1. [28]
    I explained that as the parties had been unable to resolve the Application by agreement at the conciliation conference, the Applicant may now either file a notice to discontinue the Application or the matter would go on to be heard and decided.

Application to proceed to Hearing

  1. [29]
    The Applicant, through her Agent, stated that she would proceed to a Hearing.
  1. [30]
    A written certificate was issued on 8 June 2022.  That certified I am satisfied that all reasonable attempts to settle the matter by conciliation are, or are likely to be, unsuccessful.  The written certificate was provided to the Applicant, her Agent and the Respondent's representative that day. 
  1. [31]
    Through that email correspondence from my Associate,[6] it was conveyed to the parties that it may be appropriate for this matter to be heard and decided by the Full Bench.  Their views were sought, as follows:

Pursuant to s 486(2) of the Industrial Relations Act 2016 (Qld), Commissioner McLennan may refer this matter to the Full Bench with the President's approval (i.e., three Members of the QIRC would hear and decide the matter rather than just one Member).

Can the parties please advise by 4 pm on 9 June 2022 whether they agree that this matter's significance lends itself to being heard and decided by the Full Bench?  If both parties do not agree with that proposal, formal written submissions will be first directed on that procedural matter.

  1. [32]
    The Respondent indicated its consent for this matter to be referred to the Full Bench.  In email correspondence on 9 June 2022, Ms Jelena Dmitrovic (the Respondent's representative) stated that:

I confirm the Respondent does not object to this matter being referred to the Full Bench for hearing and determination.  Thank you.

  1. [33]
    The Applicant's Agent did not respond within the requested timeframe and so my Associate emailed the parties again, stating:

Mr Bonaccorso, your response was required by 4:00pm today but has not been received. Please provide a response.

  1. [34]
    The Applicant's Agent replied:

Yes… my understanding is that we have 6 months to take further action before the certificate lapses (as per the certificate). We intend to take this further and are pursuing expert legal advice on the matter.

  1. [35]
    Given the original email asked the parties "whether they agree that this matter's significance lends itself to being heard and decided by the Full Bench?" – it appears the Applicant's Agent has agreed with his response, although that is not entirely clear. Nevertheless, it is apparent from the response that the Applicant's Agent has not objected to that course.

Parties do not object to proposal to refer to the Full Bench

  1. [36]
    The Applicant (through her Agent) and the Respondent's representative have each indicated they do not object to the referral of this matter to the Full Bench. 
  1. [37]
    In circumstances where that proposal was not contested, no oral or written submissions as to whether this matter should appropriately be referred to the Full Bench have been sought.

Relevant legislation

  1. [38]
    Section 486 of the IR Act provides a broad discretionary power that the Commission can exercise on its own volition (emphasis added): 

486Referring matter to full bench

  1. (1)
    The commission may, at any stage of proceedings and on the terms the commission considers appropriate, refer the matter to which the proceedings relate to the full bench.
  1. (2)
    A commissioner may refer the matter only with the president's approval.
  1. (4)
    Before the hearing of a matter by the commission starts, a party to the proceedings may apply to the president for the matter to be referred to the full bench.
  1. (6)
    The full bench may hear and decide a matter referred to it and make the decision it considers appropriate.
  1. [39]
    Section 451 of the IR Act provides (emphasis added):

451General powers

  1. (1)
    The commission has the power to do all things necessary or convenient to be done for the performance of its functions.
  1. (2)
    Without limiting subsection (1), the commission in proceedings may –
  1. (a)
    give directions about the hearing of a matter; or
  1. (b)
    make a decision it considers appropriate, irrespective of the relief sought by a party; or
  1. (c)
    make an order it considers appropriate.

…

  1. [40]
    Section 452 of the IR Act provides (emphasis added):

452Exercise of commission's powers

  1. (1)
    The commission may, unless this Act provides otherwise, exercise its powers–
  1. (a)
    on its own initiative; or
  1. (b)
    on application by –

(i)a party to proceedings in which the power is to be exercised; or

(ii)an organisation.

…

Referral to Full Bench

  1. [41]
    On 8 June 2022, the parties were made aware that I considered it was appropriate to refer the Application for Reinstatement to the Full Bench. 
  1. [42]
    I appreciate Justice Martin's comments in Brisbane City Council v Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland that s 486 of the current IR Act differs from the repealed section of the previous Act, in that there is no longer a specific requirement for the President to be satisfied that a matter is of substantial industrial significance before it can be referred to the Full Bench; notwithstanding the power to refer is not unfettered.[7] I have had regard to Justice Martin's reasons for approving that matter be heard by the Full Bench and have followed his Honour's reasoning here.
  1. [43]
    My reasons follow:
  • The question is novel.  While this Commission has heard and decided a significant volume of public service appeals from public sector workers at different points of the show cause process and / or suspension from duty, the subsequent terminations of employment as a consequence of non-compliance with the Directive have been few at this time.  It can readily be anticipated that there will be many more. 
  • There have been no QIRC Decisions regarding an Application for Reinstatement resulting from a public sector worker refusing to comply with the Directive at this time.
  • Justice Martin has observed that "While novelty is not, of itself, a prerequisite for referral to a Full Bench, it can often be a compelling reason for such a referral…It is not uncommon in both this jurisdiction and the federal jurisdiction for a Full Bench to be constituted in order to deal with a matter which has not previously been within the jurisdiction of the particular tribunal and which has potential to be of significance to other, similar matters within that tribunal."[8]
  • In light of the potential volume of Applications for Reinstatement that may be filed in the QIRC, as a consequence of non-compliance with the Directive, it may be both timely and efficient to address the question by the Full Bench.
  • While QIRC Decisions have found the Directive to be "lawful and reasonable" in published public service appeals, there have not yet been any Applications for Reinstatement decided in this jurisdiction where a public sector worker has not complied with the Directive.
  • The determination of the question has substantial industrial significance.  It will have implications both across the Queensland public sector and throughout the state.  Public sector workers subject to the various Directives across Queensland Government Departments requiring them to be vaccinated against COVID-19 are located in every part of the state.  The cohort of workers potentially affected by this question are not confined to Brisbane or the south-east corner.  Geographically, this is a state-wide issue.
  • The determination of the question may have significant cost implications for the Queensland public sector.  If the Commission considers reinstatement or re-employment would be impracticable, an amount of compensation may be ordered up to six months wages.[9] 
  • The determination of the question will have implications across the Queensland public sector, beyond Queensland Health.  There are tens of thousands of public sector workers subject to the various Directives across Queensland Government Departments requiring them to be vaccinated against COVID-19.
  • In the event that the application for reinstatement was granted, there is potential for any precedent to have a flow-on effect to other Departments.  Any determination for this Application for Reinstatement may inform a precedent for how other Departments address this issue.
  • The referral to the Full Bench has the potential to avoid time, cost, and inefficiencies because it will both obviate the possibility of appeal and avoid the same question being decided over and over again by a Member sitting alone.  I recognise r 6 of the Industrial Relations (Tribunals) Rules 2011 (Qld) provides for the just and expeditious disposition of the business of the commission at a minimum expense.
  • The major matter which has satisfied me that a referral should be made, is that the termination of public sector workers' employment for non-compliance with the Directive are yet novel to this jurisdiction, are likely to be significant in volume and the decision of the Full Bench in this matter will be of considerable assistance to other parties who may wish to bring similar applications.
  1. [44]
    However, pursuant to s 486(2) of the IR Act, the President's approval is required before I may refer this matter to the Full Bench to determine. 
  1. [45]
    For the reasons outlined above, I am persuaded that these matters have particular significance warranting the referral of this matter to the Full Bench.

The Question to be Decided

  1. [46]
    It is acknowledged that the question to be decided would ultimately be a matter for the Full Bench, in the event that TD/2022/133 was approved for referral.
  1. [47]
    However, in matters such as this, the core question is whether or not the dismissal was harsh, unjust or unreasonable.[10]

Conclusion

  1. [48]
    Pursuant to s 486(1) of the IR Act, I find that it is appropriate for matter TD/2022/133 to be referred to the Full Bench to determine. 
  1. [49]
    Under s 486(2) of the IR Act, a matter may only be referred to the Full Bench for Hearing with the President's approval.  This Decision is now referred to the President for his determination.

Order

  1. [50]
    I make the following order:
  1. Pursuant to s 486(1) of the Industrial Relations Act 2016, I find that it is appropriate for this matter to be referred to the Full Bench for Hearing.

Footnotes

[1] Health Practitioner Level 3 classification.

[2] From 28 February 1983 to 9 March 2022.

[3] Ms Mackenzie was categorised as an employee falling within Group 2 of Table 1, cl 7.1 of the Directive.

[4] Health Employment Directive No 12/21 Employee COVID-19 vaccination requirements cl. 8.1.

[5] Ms Mackenzie received payment in lieu of notice.

[6] Email dated 8 June 2022.

[7] [2017] QIRC 31, 2 [5].

[8] Brisbane City Council v Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland [2017] QIRC 31, 4 [15].

[9] Industrial Relations Act 2016 (Qld) s 322.

[10] Ibid s 316.

Close

Editorial Notes

  • Published Case Name:

    Mackenzie v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Mackenzie v State of Queensland (Queensland Health)

  • MNC:

    [2022] QIRC 205

  • Court:

    QIRC

  • Judge(s):

    Member McLennan IC

  • Date:

    10 Jun 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
Brisbane City Council v Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland [2017] QIRC 31
3 citations
Jump To
Cite 1 - [2017] QIRC 31
Cite 2 - [2017] QIRC 31
Cite 3 - [2017] QIRC 31

Cases Citing

Case NameFull CitationFrequency
McIlroy-Ranga v Torres Strait Island Regional Council [2022] QIRC 4482 citations
1

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