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  4. Huntington v State of Queensland (Queensland Health) - [2022] QIRC 290

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Huntington v State of Queensland (Queensland Health)[2022] QIRC 290

Huntington v State of Queensland (Queensland Health)[2022] QIRC 290

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Huntington v State of Queensland (Queensland Health) [2022] QIRC 290

PARTIES:

Huntington, Janine

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

PSA/2022/544

PROCEEDING:

Public Service Appeal – Appeal against a discipline decision 

DELIVERED EX TEMPORE ON:

25 July 2022

MEMBER:

Dwyer IC

HEARD AT:

Brisbane

ORDER:

  1. The decision appealed against is confirmed.

CATCHWORDS:

PUBLIC SERVICE – APPEAL – appeal against a discipline decision – where appellant is employed by the State of Queensland as a midwife – where the Health Employment Directive No.12/21 – Employee COVID-19 vaccination requirements required employees to receive at least a first dose of a COVID-19 vaccine by 30 September 2021 and receive the second dose of a COVID-19 vaccine by 31 October 2021 –  where the appellant applied for an exemption under the category of 'other exceptional circumstances' – where exemption not granted – where review sought – where review was unsuccessful – where appellant received show cause letter – where appellant subsequently vaccinated on 11 March 2022 – where appellant issued with reprimand – where appellant appeals decision to issue reprimand – decision appealed against confirmed 

LEGISLATION:

Industrial Relations Act 2016 (Qld) ss 562B, 562C

Public Service Act 2008 (Qld)

Health Employment Directive No. 12/21 - Employee COVID-19 vaccination requirements

CASES:

Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018)

Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245

Brasell-Dellow & Ors v State of Queensland (Queensland Police Service) & Ors [2021] QIRC 356

APPEARANCES:

Mr C Dekker on behalf of Ms J Huntington for the appellant

Ms L Griffin and Ms V Edwards for the State of Queensland (Queensland Health) 

Reasons for Decision (ex tempore)

Background 

  1. [1]
    Ms Janine Huntington is employed as a midwife by Queensland Health ('the Department'). It is not controversial that Ms Huntington was subject to the Health Employment Directive No. 12/21 - Employee COVID-19 vaccination requirements, ('the Directive') and that she did not comply with its requirement that she receive a first COVID vaccine dose by 30 September 2021 and a second one by 31 October 2021. 
  1. [2]
    Instead of complying with the Directive, Ms Huntington engaged the services of advocates and, on or about 28 September 2021, demanded production of risk assessments conducted in relation to COVID vaccines and other information. 
  1. [3]
    The letter in question was sent to her employer in Ms Huntington's name but it had all the hallmarks of a number of the now ubiquitous 'template' letters drafted by advocates that have become a familiar sight at the Commission in the past 10 months. 
  1. [4]
    Nothing in Ms Huntington's correspondence indicated that she intended to comply with the Directive.
  1. [5]
    Subsequent to her demands for risk assessment and consultation, Ms Huntington also lodged an exemption application on 30 September 2021. The basis of the application was under the category 'Other Exceptional Circumstances'. The particulars provided in relation to her application for exemption were essentially a replication of her correspondence of 28 September 2021 and made an assertion that she could not comply with the mandate in the absence of consultation. 
  1. [6]
    Again, there is no indication in her exemption application that Ms Huntington had any intention, conditional or otherwise, to comply with the Directive.
  1. [7]
    Ms Huntington's exemption application was refused on 15 November 2021. Ms Huntington contends that she sought a review of the decision by writing to Dr Peter Bristow on 29 November 2021. In her written submissions Ms Huntington has provided a copy of a letter consistent with her having sought a review of the decision to reject her exemption application; however, the letter is undated. In any event, I accept that Ms Huntington sought a review but that it was not successful. 
  1. [8]
    Importantly, what is evident from her review application to Dr Bristow on 29 November 2021 is that Ms Huntington was still relying on the same grounds for refusal to comply with the Directive and again, significantly, makes no reference to any intention conditional or otherwise to comply with the Directive.
  1. [9]
    On 16 February 2022 a show-cause process commenced against Ms Huntington for her failure to comply with the Directive. In her reply to the show-cause letter in an email of 25 February 2022, Ms Huntington relevantly said:
  1. I would like to sincerely thank you for your patience.

The last correspondence I had from yourselves was on November 15th after the denial of my exemption, therefore I would just like to keep you informed of my intentions. 

I managed, after a lengthy wait, to have a consultation with a recommended specialised doctor. 

I was initially waiting for the Novavax vaccine to become approved in Australia. However, my doctor has discussed each vaccine at great length and in detail and I feel confident with his recommendation of a vaccine that will better suit my body. 

As I trust this doctor implicitly, I would prefer my vaccinations to be carried out by him, at his clinic. The only issue with this is that there is a fair wait time. However, my doctor assures me that I am on the cancellation list and will be called within 4.5 weeks. I will continue to keep you informed of my progress…

  1. [10]
    With respect to the comment in that email about not having received any response or had correspondence from the Department since 15 November, I note that Ms Huntington's advocates were in contact with the Department at some time between December 2021 and February 2022, but there is no correspondence before me, and it seems from that email that Ms Huntington was unaware of it also. In any event, Ms Huntington's response of 25 February 2022 paints a dramatically different picture to her earlier responses. 
  1. [11]
    From her email of 25 February 2022 Ms Huntington now appears to have abandoned her demands for risk assessment and consultation and seemingly expresses a willingness to be vaccinated but also vaguely alludes to difficulties getting an appointment with what she refers to as a 'specialised doctor'. Importantly though, Ms Huntington's response gives something of an equivocal indication about when she can receive her first dose of a vaccine.
  1. [12]
    On 1 March 2022 Ms Huntington sent a further response that essentially repeats her first response. 
  1. [13]
    On 8 March 2022, in response to the show cause process, a decision was made confirming that the allegation in respect of failure to comply with the Directive had been substantiated. In that correspondence Ms Huntington was informed that the decisionmaker was giving consideration to termination of her employment and invited her to show cause why this sanction ought not be imposed ('the second show-cause letter'). 
  1. [14]
    On 11 March 2022, a mere three days after the spectre of dismissal had arisen and despite apparently many months of difficulty getting in to see a specialised doctor (and many more uncertainties about when she could get back to that doctor for a vaccine) Ms Huntington suddenly managed to get vaccinated. 
  1. [15]
    On 14 March 2022 Ms Huntington responded to the second show-cause letter as follows:

Dear Mr Walters and Lindell, 

As I have stated in my previous emails, I have found it extremely difficult to seek the advice of a specialist in a timely manner. 

  1. I had thought Novavax would be better suited to my body, and they were not, at the time, available in Australia. However, after my consultation I decided to trust the specialist's opinion.

On Friday, 11 March I had my first vaccine - please find proof attached...[1]

  1. [16]
    On 5 April 2022 Ms Huntington provided evidence of having received two doses of an approved vaccine. 
  1. [17]
    On 7 April 2022, taking into consideration (amongst other things) Ms Huntington's recent vaccine status, a decision was made to issue Ms Huntington with a reprimand. It is this decision that Ms Huntington now appeals.

Statutory framework for public service appeals

  1. [18]
    The appeal is made pursuant to chapter 11 of the Industrial Relations Act 2016 (Qld) ('the IR Act'), which provides the Queensland Industrial Relations Commission ('the Commission') with jurisdiction to deal with appeals under the Public Service Act 2008 (Qld).
  1. [19]
    An appeal is a review of a decision. It is not a rehearing of the matter on its merits.[2]The word 'review' is not defined and accordingly it must take its meaning from the context in which it appears.[3]I am required to review the decision to issue Ms Huntington with a reprimand to determine whether that decision was fair and reasonable.[4]
  1. [20]
    The IR Act limits the powers of the Commission with respect to such appeals and the orders that can be made, namely:[5]
  1. (a)
    confirm the decision appealed against; or
  1. (b)
    for an appeal against a promotion decision—set the decision aside, and return the matter to the decision maker with a copy of the decision on appeal and any directions permitted under a directive of the commission chief executive under the Public Service Act 2008 that the commission considers appropriate; or
  1. (c)
    for another appeal - set the decision aside, and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.

Submissions of the parties 

  1. [21]
    Parties in these proceedings have provided the Commission with written submissions in accordance with directions issued from my Chambers. I have had full regard to the written submissions. There was also a brief hearing conducted to seek clarification in relation to those submissions. 

Ms Huntington's submissions

  1. [22]
    Ms Huntington's submissions commence with a rather ambitious repetition of her assertion that she continues to be disadvantaged by lack of consultation. Ms Huntington purports to characterise her delay in compliance by using terms such as 'once I was actually able to properly consult with my doctor' and seeks to reinforce her narrative that she 'always' intended to comply with the Directive. 
  1. [23]
    Ms Huntington then submits that a reprimand is excessive because, in her words:

At no stage did I ever allude to an intention to refuse to be vaccinated.

  1. [24]
    She says her delay in complying was reasonable because all she was interested in was an opportunity to be fully informed.

Submissions of the Department 

  1. [25]
    The Department relies on the objective facts to defend the decision as reasonable namely, that the Directive amounts to a lawful and reasonable direction, that there was no compliance with that lawful and reasonable direction, there is no evident reasonable excuse and, the process associated with the imposition of the reprimand was procedurally fair.

Consideration

  1. [26]
    In her appeal notice Ms Huntington repeatedly asserts:

I had always informed my employer that I have always intended to comply with the vaccine mandate.

And:

I had always kept my employer informed that I would comply with the mandate.

(Underlining added)

  1. [27]
    In her written submissions Ms Huntington subtly distorts these assertions and says:

 At no stage did I ever allude to an intention to refuse to be vaccinated.

  1. [28]
    On the undisputed facts of this matter, including lengthy correspondence signed by Ms Huntington herself, these assertions she now makes in her appeal material are plainly false. Whether this stark contradiction arises through desperation, or whether it is a hamfisted attempt to deceive, the assertions by Ms Huntington in her appeal notice that she 'always' told her employer she would comply are simply unsustainable on the facts. 
  1. [29]
    When questioned by the Commission during the hearing as to how she had 'always' made the Department aware of her intention to be vaccinated Ms Huntington contended (from the bar table) that she had orally made such representations to her supervisor. In stark contrast to this assertion that she now makes, there are no references to this effect in any of Ms Huntington's written submissions in this appeal or any earlier written material e.g., her extensive demand for a risk assessment or her exemption application. 
  1. [30]
    Further, the Department submitted in response at the hearing that it has no evidence of such oral representations or any awareness of the intent that Ms Huntington now asserts she 'always' had. In the circumstances, I reject the proposition that Ms Huntington made such representations to anyone orally as highly unlikely. Had Ms Huntington made such an important representation qualifying her intention, I would expect it would almost certainly have found its way into one of her numerous written communications provided to the Department in the period preceding February 2022, but it did not. 
  1. [31]
    The first reference to oral representations to her manager to the effect she intended to comply with the Directive was at the hearing at the point where Ms Huntington was confronted by questions from the Commission about the very clear evidence of her earlier representations that contradicted this recent assertion. 
  1. [32]
    Contrary to what she now says, all of Ms Huntington's earlier representations (from 28 September 2021 until late November 2021) give absolutely no impression other than noncompliance with the Directive. Indeed, none of those communications even foreshadow compliance as a possibility. Instead, they simply make demands for things that Ms Huntington was not entitled to and assert rights that she had (no doubt erroneously) been advised that she had.
  1. [33]
    Further, the submission was made today that Ms Huntington was reasonably excused from compliance because she was exploring her rights with respect to risk assessments and consultation in the latter part of 2021. 
  1. [34]
    A Full Bench of this Commission roundly dismissed arguments about rights to personal consultation around vaccine mandates in a decision delivered on 22 October 2021.[6]Ms Huntington (and those who were advising her) ought to have been well and truly aware by at least November 2021 that her demands for consultation were not a legitimate ground to refuse compliance. This now well-established precedent makes Ms Huntington's continued demand for consultation perplexing.
  1. [35]
    Ms Huntington has attempted to introduce a narrative that she was delayed in compliance because of difficulties accessing medical advice. While it is not unusual to experience some delay in accessing medical advice, particularly of a specialist nature, I note that Ms Huntington has provided no evidence from the doctor in question to support her assertions of delay in getting access to them, or that she would have been further delayed in having that particular doctor administer a vaccine. 
  1. [36]
    Further, Ms Huntington's response on 25 February 2022 confirms that she has, at that time, had access to the doctor of her choice and presumably at that time has been advised she could receive Pfizer. There is no evidence that Pfizer vaccines were in short supply in February of 2022 and no reasonable explanation why she had still not complied at that time, given that she indicated at the hearing today that she had seen the doctor approximately a week before.
  1. [37]
    On the contrary, far from giving an encouraging assurance that she was about to comply with the Directive, Ms Huntington asserts in her email of 25 February 2022 that it might be 'a fair wait time' and makes a reference to an estimate of 4.5 weeks before she can be vaccinated, subject to cancellations.
  1. [38]
    Ms Huntington's communication with the Department, even by 25 February 2022, is obfuscation and vaccine hesitation at its most obvious. Ms Huntington's email references alluding to the fact that she was 'waiting for Novavax' are not plausible. Not only did this assertion also not emerge until 25 February 2022, but also in the circumstances where she has subsequently received a Pfizer vaccine. 
  1. [39]
    I note Ms Huntington supplies no medical evidence to confirm when she first made contact with the 'specialised doctor' in question or what the wait time was for that appointment or what advice she alleges she had about the suitability of various vaccines. None of the facts now alleged by Ms Huntington or when they were before the decision maker was ever supported by any independent evidence from the 'specialised doctor' she alleges was central to the delays she relies on. 
  1. [40]
    The most revealing fact about the relevant chronology is that notwithstanding:
  • all of her significant concerns about consultation with the Department;
  • all of her difficulties getting access to a doctor for advice; and
  • all of the anticipated delay expected before that doctor could administer a vaccine (on a unspecified date),

Ms Huntington somehow managed to suddenly comply with the Directive within three days of her being advised that termination of her employment was imminent. 

  1. [41]
    On all of the facts available to the decision maker there was never anything that could have amounted to a reasonable excuse that would excuse Ms Huntington from compliance with the mandate. Indeed, even after the decision was made and with the benefit of appeal notice pleadings and written submissions to set out her explanation for her delay in compliance there continues to be a dearth of evidence to support the increasingly contradictory excuses that she now offers. 
  1. [42]
    I can fully appreciate how the decision-maker came to their conclusion and I consider in the circumstances that the decision was, in every respect, fair and reasonable. Ms Huntington appears to somehow confuse her eventual compliance with actual compliance. But it is an inescapable fact that despite her vaccination in early March 2022 she was, for the majority of the period between September 2021 and February 2022 contravening a lawful and reasonable direction of her employer. 
  1. [43]
    The Directive specified precise dates by which Ms Huntington was required to be vaccinated. While subsequent vaccination might serve to mitigate the effects of her noncompliance, it does not extinguish the fact that Ms Huntington did not comply with the Directive because she did not receive those vaccinations on the dates stipulated. 
  1. [44]
    In circumstances where she has not offered a reasonable excuse for her conduct, she remains liable to sanction for her non-compliance. 

Conclusion

  1. [45]
    In my view, Ms Huntington ought to consider herself fortunate that the sanction of termination of employment was not imposed irrespective of her subsequent compliance. In general terms, the obligation of an employee to comply with a lawful and reasonable direction is deeply embedded in every employment relationship. It is a fundamental requirement, and any breach of that requirement is liable to shatter the trust required to sustain the employment relationship. 
  1. [46]
    Ms Huntington can be grateful her employer has elected to impose a lighter sanction and has been prepared to give her an opportunity to continue her employment. In circumstances where Ms Huntington has made submissions alleging her intentions to comply with the Directive that are plainly contradicted by the contemporaneous records of her attitude to compliance at the relevant time, her lack of insight and preparedness to accept the consequences for her conduct should be concerning for the Department.  

Order

  1. [47]
    In all of the circumstances, I make the following order:

1.  The decision appealed against is confirmed. 

Footnotes

[1] It is noted that at no time in this process has Ms Huntington ever sought to support her assertions about difficulties with access to a specialist or her medical concerns with any independent medical evidence, nor has she provided a rationale, independent or personal, for her alleged preference for Novavax. In this context it is noted that Ms Huntington received a vaccine produced by Pfizer.

[2] Industrial Relations Act 2016 (Qld) s 562B; Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018), 5.

[3] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261 (Mason CJ, Brennan and Toohey JJ).

[4] Industrial Relations Act 2016 (Qld) s 562B(3).

[5] Ibid s 562C.

[6] Brasell-Dellow & Ors v State of Queensland (Queensland Police Service) & Ors [2021] QIRC 356.

Close

Editorial Notes

  • Published Case Name:

    Huntington v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Huntington v State of Queensland (Queensland Health)

  • MNC:

    [2022] QIRC 290

  • Court:

    QIRC

  • Judge(s):

    Dwyer IC

  • Date:

    25 Jul 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
Brandy v Human Rights & Equal Opportunity Commission (1995) 183 CLR 245
2 citations
Jump To
Cite 1 - (1995) 183 CLR 245
Cite 2 - (1995) 183 CLR 245
Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10
2 citations
Jump To
Cite 1 - [1995] HCA 10
Cite 2 - [1995] HCA 10
Brasell-Dellow v State of Queensland, (Queensland Police Service) [2021] QIRC 356
2 citations
Jump To
Cite 1 - [2021] QIRC 356
Cite 2 - [2021] QIRC 356
Goodall v State of Queensland [2018] QSC 319
2 citations
Jump To
Cite 1 - [2018] QSC 319
Cite 2 - [2018] QSC 319

Cases Citing

Case NameFull CitationFrequency
Allison v State of Queensland (Department of Education) [2024] QIRC 2632 citations
Bailey v State of Queensland (Department of Education) [2024] QIRC 2182 citations
Bowcock v State of Queensland (Department of Education) [2024] QIRC 282 citations
Dau v State of Queensland (Department of Education) [2025] QIRC 821 citation
Huntington-Tildsley v State of Queensland (Queensland Health) [2023] QIRC 632 citations
Mulder v State of Queensland (Queensland Health) [2023] QIRC 642 citations
Nicolson v State of Queensland (Department of Education) [2025] QIRC 722 citations
O'Brien v Commissioner of Police [2024] QSC 82 2 citations
Ogbonna v State of Queensland (Queensland Health) [2024] QIRC 11 citation
Pitman v State of Queensland (Queensland Health) [2022] QIRC 3992 citations
Rossiter v State of Queensland (Department of Education) [2024] QIRC 252 citations
Rowe v State of Queensland (Department of Education) [2024] QIRC 2482 citations
Steenson v State of Queensland (Department of Education) [2024] QIRC 2421 citation
Thorley v State of Queensland (Department of Education) [2024] QIRC 262 citations
1

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