Bax v State of Queensland (Queensland Health)
[2022] QIRC 304
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- Unreported Judgment
- Bax v State of Queensland (Queensland Health)[2022] QIRC 304
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Bax v State of Queensland (Queensland Health)[2022] QIRC 304
Bax v State of Queensland (Queensland Health)[2022] QIRC 304
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Bax v State of Queensland (Queensland Health) [2022] QIRC 304 |
PARTIES: | Bax, Kim Patricia (Appellant) v State of Queensland (Queensland Health) (Respondent) |
CASE NO: | PSA/2022/609 |
PROCEEDING: | Public Service Appeal – appeal against suspension without pay decision |
DELIVERED ON: | 8 August 2022 |
MEMBER: | Pidgeon IC |
HEARD AT: | On the papers |
ORDER: |
|
CATCHWORDS: | PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – public service appeal – appeal against a suspension without pay decision – where the respondent alleges that appellant did not comply with Health Employment Directive No 12/21 Employee COVID-19 vaccination requirements – where allegation substantiated – where appellant sought exemption from complying with Directive – where appellant was denied an exemption from complying with Directive – where the appellant was suspended from duty without normal remuneration – where directive was reasonable – where the decision was fair and reasonable – decision confirmed |
LEGISLATION: | Industrial Relations Act 2016 ss 562B, 562C Public Service Act 2008 ss 137, 187, 194 Public Service Commission Directive 16/20 Suspension cl 6 Health Employment Directive No 12/21 Employee COVID-19 vaccination requirements cls 1, 2, 6, 7, 8, 10 |
CASES: | Slykerman v State of Queensland (Queensland Health) [2022] QIRC 039 Thorley v State of Queensland (Department of Education) [2022] QIRC 133 Tilley v State of Queensland (Queensland Health) [2022] QIRC 002 |
Reasons for Decision
Introduction
- [1]Kim Patricia Bax (the Appellant) is employed by the State of Queensland (Queensland Health) (the Respondent) as a Registered Nurse (casual) with the Metro South Mental Health Casual Pool.
- [2]The circumstances leading up to Ms Bax's suspension without pay are set out in the decision of Mr Dave Waters, Executive Director Human Resources, Metro South Health provided to Ms Bax on 24 May 2022. Relevantly:
- On 4 February 2022, Mr Waters wrote to Ms Bax asking her to show cause as to why disciplinary findings should not be made against her under the Public Service Act 2008 (the PS Act).
- That letter also advised Ms Bax that she was suspended on normal remuneration and also asked her to show cause as to why she should not be suspended without pay.
- On 11 February 2022, Ms Bax filed an appeal with the Queensland Industrial Relations Commission (QIRC) requesting an external review of the decision to decline her request for an exemption from the direction to be vaccinated. The QIRC granted Ms Bax's request for a stay of the decision until the determination of the appeal.
- On 17 February 2022, Ms Bax provided a response to Mr Waters' correspondence of 4 February 2022.
- On 20 May 2022, the QIRC confirmed the decision to decline Ms Bax's request for an exemption, and subsequently revoked the stay.
- On 23 May 2022, Ms Lauren Griffin, A/Director, Employment Relations, Metro South Health wrote to Ms Bax and enquired whether Ms Bax had been vaccinated against COVID-19 and requested evidence of vaccination before the close of business that day.
- Ms Bax responded and confirmed that had not been vaccinated against COVID-19.
- Ms Griffin advised Ms Bax that Metro South Health intended to continue with the discipline process on the basis that Ms Bax remained unvaccinated.
- On 24 May 2022, Mr Waters wrote to Ms Bax and informed her that he had determined that Ms Bax was liable to be disciplined pursuant to section s 187(1)(d) of the PS Act as she had contravened, without reasonable excuse, a direction given to her as a public service employee by a responsible person.
- Mr Waters also informed Ms Bax that he was giving serious consideration to termination of her employment and invited her to respond.
- [3]Relevant to this particular appeal, in the correspondence of 24 May 2022, Mr Waters provided Ms Bax with a decision regarding the proposed suspension without remuneration:
I have carefully considered the material available to me including your response of 17 February 2022.
In your response, you state that the suspension without pay is only available in extremely limited circumstances. You state that you are not facing professional deregistration, that there are no misconduct issues or criminal charges on foot, and there are no extended or unknown variables involved as your preferred vaccine was commercially available from the week beginning 21 February 2022.
The Public Service Commission Directive 16/20 Suspension also provides that an employee may be suspended without normal remuneration where it is decided that it is not appropriate for the employee to receive normal remuneration during the suspension. I am of the view that it is not reasonable or in the public interest for your to be suspended on normal remuneration when there is no information before me that you have a reasonable excuse for failing to follow a reasonable and lawful direction, and where there is no evidence that you have made reasonable attempts to be vaccinated against COVID-19.
I have determined that based on the information before me and in consideration of the nature of the discipline to which you are liable, you should be suspended from duty without remuneration.
The suspension without pay will take effect immediately and will remain in place until 30 June 2022 or until I have had the opportunity to consider the matter further, including your response to the proposed disciplinary penalty.
…
Is the Appellant entitled to appeal?
- [4]Section 194 of the PS Act lists various categories of decisions against which an appeal may be made. Ms Bax appeals the decision to suspend her without pay, which is provided for at s 194(bb) of the PS Act.
The Appeal
- [5]On 10 June 2022, Ms Bax filed an appeal against the suspension without pay decision. Ms Bax provided the following reasons for appeal:
Queensland Health has now suspended me without pay in relation to the Covid19 vaccination mandate. I believe this is unfair for the following reasons:
- There is no misconduct or unlawful behaviour on my part, as I've lawfully and dutifully complied with all the allowed and agreed appeal processes. There have never been any complaints with my work performance.
- I submitted legitimate and professional medical documentation to Queensland Health from the outset, which they've rejected out of hand. If Queensland Health wants to question and/or reject my health issues, then they should have done so in a professional and caring manner, e.g. by requiring and/or asking me to go for a further professional medical evaluation. At no point did they do this and thus Queensland Health have no evidence backing their rejection.
- I have never at any point refused to have a Covid19 vaccination, I simply asked to have Novavax (which became available mid-February 2022), rather than the then available vaccines. This request was based on my evidence-backed medical issues. Despite this, and despite knowing that Novavax had been approved and would be available to the Australian public within a few days, Queensland Health instigated disciplinary action against me. They have refused to withdraw this disciplinary action, despite my repeated written assertions to them that I'm willing to take Novavax if they can assure me in writing that I'll then be able to return to my normal employment. They have point blank refused to provide me with this assurance and have even formally informed me that even if I have Novovax, they may still proceed to terminate my employment. I have also some anxieties re Novavax and I'm only willing to accept it to retain my employment, so clearly I don't want to take a drug I'm unhappy about and lose my employment anyway, which would leave me in a worse position.
- I could be back at work with Queensland Health next week if they simply and reasonably assured me in writing that the Novavax vaccine is acceptable to them.
- [6]The appeal notice was filed with the Industrial Registry on 10 June 2022, within 21 days of the decision being received on 24 May 2022. I am satisfied that the Appellant may appeal the decision.
Appeal Principles
- [7]Section 562B(3) of the Industrial Relations Act 2016 (the IR Act) provides that "the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable."
- [8]Findings made in the decision which are reasonably open on the relevant material or evidence before the decision-maker, should not be expected to be disturbed on appeal.
- [9]A public service appeal is not an opportunity for a fresh hearing, but a review of the decision arrived at by the decision-maker. To determine the appeal, I will consider whether the decision conveyed to Ms Bax on 24 May 2022 was fair and reasonable.
- [10]In deciding this appeal, s 562C(1) of the IR Act provides that the Commission may:
- (a)confirm the decision appealed against; or
…
- (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.
Directive 12/21
- [11]Directive 12/21 sets out the mandatory vaccination requirements for all current and prospective health service employees employed under the Hospital and Health Boards Act 2011 (Qld) (the HHB Act).
- [12]Clause 1 of Directive 12/21 provides that compliance with the Directive is mandatory. Clause 2 provides that the purpose of Directive 12/21 is to outline COVID-19 vaccination requirements for existing and prospective employees employed in the identified high- risk groups designated in the Directive.
- [13]Clause 6 of Directive 12/21 identifies the potential risk posed to relevant employees, and the risk profile of those employees as follows:
The COVID-19 virus has been shown to disproportionately affect healthcare workers and health support staff and poses a significant risk to Queensland Health patients, and the broader community.
In recognition of the risks posed by the virus, as well as workplace health and safety obligations incumbent upon both the organisation and employees, this Directive requires health service employees who are identified as being in high risk groups to be vaccinated against COVID-19.
Prospective and existing health service employees subject to these requirements have been identified based on the following risk profile:
- They are working in an area with suspected or confirmed COVID-19 patients or an area that a COVID-19 patient may enter.
- They are coming into direct or indirect contact with people who work in an area with COVID-19 patients or an area that a suspected or actual COVID-19 patient may enter.
- They are unable to observe public health requirements (e.g. physical distancing, working in areas of high population density, rapid donning/doffing of personal protective equipment (PPE) in emergent situations).
- They have the potential to expose patients, clients, other staff or the broader community to the virus (e.g. occupying shared spaces such as lifts, cafeterias, car parks, with people working with suspected or actual COVID-19 patients).
- [14]Clause 7 of Directive 12/21 sets out the requirements for vaccination. Relevantly, cl 7.1 states:
In acknowledgment of the risks posed by the COVID-19 virus to the health and safety of Queensland Health employees, patients and the broader community, clauses 8 and 9 of this Directive require all existing and prospective employees who are or are to be employed to work in the cohorts as categorised in accordance with Table 1 (below), to be vaccinated as a condition of employment, subject to certain limited exemptions described in clause 10 of this Directive.
- [15]Clause 8 of Directive 12/21 sets out the mandatory vaccine requirements for existing employees as follows:
8.1 Existing employees currently undertaking work or moving into a role undertaking work listed in a cohort of Table 1,must:
- have received at least the first dose of a COVID-19 vaccine by 30 September 2021; and
- 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:
- 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.
- 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 Directive.
- [16]Clause 10 of Directive 12/21 provides that where an employee is unable to be vaccinated, an exemption may be granted as follows:
10.1 Where an employee is unable to be vaccinated they are required to complete an exemption application form.
10.2 Exemptions will be considered in the following circumstances:
- Where an existing employee has a recognised medical contraindication;
- Where an existing employee has a genuinely held religious belief;
- Where another exceptional circumstance exists.
10.3 If an existing employee is granted an exemption, they do not have to comply with clause 8 or 9 of this Directive for the duration of that exemption
Appellant's submissions
- [17]On 27 June 2022, Ms Bax filed submissions in support of her appeal. Ms Bax's submissions are focused on her concern and anxiety about the vaccines; her view that Queensland Health did not engage with her regarding her mental health issues; the revocation of the mandate for health care workers in the United Kingdom (UK); and her willingness to receive the Novavax vaccine if Queensland Health advise her that this will be acceptable and she will not be subject to disciplinary action.
Concern and anxiety regarding COVID-19 vaccines
- [18]Ms Bax says that she has a severe anxiety disorder related to the Covid19 vaccines. Ms Bax says that this is a 'well recognised and described condition within the current DSM 5' and that she has supplied Queensland Health with supporting evidence 'via a professional psychologist's report and a letter from my GP'.
- [19]Ms Bax says that her anxieties regarding the COVID-19 vaccines are 'widely shared and very well supported via numerous articles in highly respected and world leading medical publications such as The Lancet and The British Medical Journal, including fraud and malfeasance in the Pfizer vaccine trials.'[1]
- [20]Ms Bax says that just because the media and governments are ignoring the concerns she has researched doesn't mean that they don't exist. Ms Bax says that she will be claiming formal professional development/continuing education credits for reading these journal articles, as she is entitled to do because they are from well-respected and recognised medical publications.
Queensland Health's engagement with Ms Bax regarding her mental health issues
- [21]Ms Bax says that Queensland Health made no attempt to clarify or substantiate her medical issues. Ms Bax says that she was not asked to engage in further professional medical assessment and that Queensland Health stated that her engagement with an experienced and qualified psychologist was inadequate.
- [22]Ms Bax says that Queensland Health's attempt to diagnose her 'telepathically via staff with no mental health qualifications' was clearly below acceptable health care standards and 'far below the care' she had already engaged with on her own initiative.
Revocation of UK vaccine mandate for health care workers
- [23]Ms Bax says that the UK has completely rescinded vaccine mandates for health care workers and the Queensland Government is currently involved in litigation with highly qualified medical professionals opposed to vaccine mandates. Ms Bax says that this is further strong evidence that her fears are well supported and widely shared.
Ms Bax is willing to receive the vaccine if Queensland Health will assure her that it will not take disciplinary action against her
- [24]Ms Bax says that she has always been willing to receive Novavax once she receives written confirmation from Queensland Health that this will be acceptable and she can return to her normal employment.
- [25]Ms Bax says that Queensland Health has informed her in writing that even if she receives the vaccine, there's still a strong possibility that she will be dismissed. Ms Bax says that this will leave her in an even worse position where she undergoes an 'extremely stressful and permanent medical procedure' and becomes unemployed.
Respondent submissions
Correspondence with Ms Bax on 23 May 2022 and 24 May 2022
- [26]As noted above, on 23 May 2022, Ms Griffin asked Ms Bax to confirm if she had received a vaccination against COVID-19 before close of business that same day. The Department says that Ms Bax replied and advised that she would book the earliest available appointment with her general practitioner to receive a COVID-19 vaccine if the Department would send her an email confirming her employment position once she was vaccinated.[2] The Department says that this was contrary to advice Ms Bax provided on 27 February 2022 indicating that she had an appointment to receive a Novavax vaccine in early March 2022.
- [27]The Department says that on the same day, it advised Ms Bax that the Department intended to continue with the disciplinary process on the basis that Ms Bax remained unvaccinated.
- [28]Later that same day, Ms Bax replied to that email and said that given the Department's attitude, she couldn't accept a vaccine that which she was still reluctant to take and would still lose her employment. The Department says that Ms Bax had not previously expressed any reluctance about receiving the Novavax vaccine prior to 23 May 2022. The Department says that in all of her previous correspondence, Ms Bax has stated an intention to receive Novavax when it became available.[3]
- [29]Queensland Health replied to that email and said that it intended to continue with the disciplinary process on the basis that Ms Bax remained unvaccinated. Ms Bax was informed that if her vaccination status changed, it would be for the delegate to determine whether to cease the disciplinary process and to consider the circumstances of the matter when determining the appropriate outcome from the discipline process that had already commenced.[4]
- [30]At 6.46pm that evening, Ms Bax replied to that email thanking Metro South Health for 'confirming in writing that Queensland Health will continue to discipline and potentially terminate' her employment even if she received an approved COVID-19 vaccine. Ms Bax said that she was willing to book an appointment to be vaccinated at the earliest opportunity once she received confirmation from the Department that she would be allowed to return to her normal employment.[5]
- [31]The following day, on 24 May 2022, Ms Bax was informed of disciplinary finding, asked to show cause regarding the proposed disciplinary action and informed that she was being suspended without pay.
Ms Bax's mental health issues and request for an exemption from HED 12/21
- [32]With reference to Ms Bax's submissions regarding her anxiety and mental health issues, the Respondent says that Ms Bax did not provide any evidence of a medical condition which meant that she was not able to be safely administered the current vaccines.
- [33]The Respondent says that the psychologist's report dated 21 September 2021 provided by Ms Bax should be given relatively little weight because, as noted in the report, it was written after only 2.5 hours of counselling and the psychologist did not have a long-standing or well-established relationship with Ms Bax. In any case, the Respondent says that anxiety is not a recognised medical contraindication form receiving a COVID-19 vaccine.[6]
- [34]The Respondent also says that Dr Arreza's medical certificate is not evidence of a medical contraindication. In that certificate, Dr Arreza reports that Ms Bax was not ready to become vaccinated for her own reasons based on her personal study and a strong fear of effects post-vaccination. The certificate specifically states that it does not aim to exempt Ms Bax from receiving the vaccination. A strong fear of COVID-19 vaccinations is not a recognised contraindication from receiving a COVID-19 vaccination.
- [35]The Respondent says that the onus was on Ms Bax to provide medical evidence that would be sufficient for her to be exempted from HED 12/21 and she did not do so.[7]
Ms Bax said she was willing to receive Novavax and it has been available in Australia for some three months prior to the suspension without pay and she remains unvaccinated
- [36]The Respondent says that Ms Bax has still provided no evidence that she had booked an appointment to receive the Novavax vaccine and has provided no evidence that she has been vaccinated. Despite Ms Bax's numerous indications she was willing to receive the Novavax vaccine, she failed to do so and has still not been vaccinated at the time of these submissions, some five months after Novavax became available for her to receive.
- [37]The Respondent submits that Ms Bax's position that she will not receive a Novavax vaccine until the disciplinary process is withdrawn is unreasonable and an indication that she never intended to comply with HED 12/21.
The suspension without pay – reasonable alternatives considered
- [38]While Ms Bax argues that she should not be suspended without pay because she has not engaged in misconduct, the Respondent says that an employee may be suspended without remuneration where it is decided that it is not appropriate for the employee to receive normal remuneration during the suspension.
- [39]The Respondent says that Ms Bax is a Registered Nurse which is a frontline operational position in a hospital. It is not possible for Ms Bax to fulfill the requirements of her role from home. Ms Bax is unable to perform her duties because of her choice not to be vaccinated and in circumstances where it is Ms Bax's ongoing refusal to be vaccinated which means she is unable to work, it is not appropriate for her to receive normal remuneration.
- [40]The Respondent says that it was entirely reasonable for Mr Waters to determine there was no reasonable alternative role or reasonable adjustments available which appropriately managed the risk that arises from Ms Bax's non-compliance with HED 12/21.[8]
Natural justice, procedural fairness and consideration of human rights
- [41]The Respondent says that it has at all times corresponded with Ms Bax in a reasonable manner and that it asked Ms Bax whether she has become vaccinated for COVID-19 on numerous occasions.
- [42]The Respondent submits that Ms Bax's human rights were considered through the exemption application process and it was determined that any limitation to Ms Bax's human rights was justified by the need to ensure the readiness of the health system in responding to the COVID-19 pandemic, and to protect the lives of employees, patients and the community.
- [43]Ms Bax was notified of the proposed suspension without pay and was given an opportunity to respond and took advantage of that opportunity.
Financial impact on Ms Bax
- [44]The Respondent acknowledges that the suspension without pay will have a financial impact on Ms Bax but submits that this is only one factor to be considered. The financial impact on Ms Bax must be balanced against the Department's obligations to ensure the effective, efficient, and appropriate use of public resources, including the spending of public funds. Ms Bax is not precluded from seeking employment with another employer.[9]
The decision was fair and reasonable
- [45]The Respondent says that noting the Chief Health Officer is the most senior medical officer in the State, the HED 12/21 is lawful and reasonable.[10] Ms Bax has exercised a choice to refuse the direction for approximately seven months. Ms Bax was aware of the consequences of failing to become vaccinated under HED 12/21.
- [46]Given the nature of the discipline matter, the Respondent says that it was fair and reasonable for Mr Waters to consider it was not in the public interest for Ms Bax to continue to be paid her normal remuneration in circumstances where she has made a choice not to follow the direction given to her by her employer and was therefore unable to attend to her normal work duties.[11]
No further submissions
- [47]The Directions I issued on 14 June 2022 invited the parties to make any further submissions by 4pm on 19 July.
- [48]Ms Bax did not make any further submissions in reply to those of the Respondent.
- [49]I note that Ms Bax's submissions did not address matters such as the financial impact of the suspension without pay; the public interest in her continuing to be suspended on normal pay; any lack of procedural fairness afforded to her; and alternative duties she believes should have been considered.
WasthedecisiontosuspendMsBaxwithoutremunerationfairandreasonable?
- [50]Public Service Commission Directive 16/20 Suspension requires the decision-maker to address particular matters set out at cl 6 when determining to suspend an employee without remuneration:
- Suspension without remuneration
6.1 Section 137(4) of the PS Act provides that the chief executive may decide that normal remuneration is not appropriate during a period of suspension where the employee is a public service employee liable to discipline.
6.2 A decision that normal remuneration is not appropriate during the suspension will usually occur after a period of suspension with remuneration but may be made from the start of the suspension.
6.3 In deciding that normal remuneration is not appropriate, the factors the chief executive is to consider include:
- (a)the nature of the discipline matter
- (b)any factors not within the control of the agency that are preventing the timely conclusion of the discipline process
- (c)the public interest of the employee remaining on suspension with remuneration.
6.4 A decision to suspend an employee without remuneration is subject to the principles of natural justice…
As part of the suspension process:
- (a)The employee must be given the opportunity to respond to the proposed suspension without remuneration prior to the decision being made by the delegate. This can occur through a ‘show cause’ process at the time of notification of the initial suspension on normal remuneration, or at any subsequent stage during the suspension.
- (b)The employee is to be provided with written notice, including the particulars required by section 137 of the PS Act, and reasons for the decision that suspension is without normal remuneration.
Ms Bax received natural justice and procedural fairness
- [51]There is nothing before me to demonstrate that Ms Bax has not received natural justice and procedural fairness. Ms Bax was given an opportunity to formally respond to the proposal to suspend her without remuneration and she did so. The material before me also indicates that there were many occasions when the Respondent contacted Ms Bax to ask if she had been vaccinated.
It was open to Mr Waters to find that the nature of the disciplinary matter was serious and warranted suspension without pay
- [52]Having established that the nature of the discipline matter involved a contravention of a lawful direction given to Ms Bax by way of HED 12/21, I find that it was open to the decision-maker to determine that the discipline matter was of a nature warranting suspension without pay. The disciplinary matter is clearly of a serious nature when the contravention of the direction is such that it renders Ms Bax completely unable to attend to her place of work to undertake her duties.
Ms Bax did not receive an exemption, remains unvaccinated and has not provided any new evidence of a medical contraindication warranting exemption from HED 12/21.
- [53]Ms Bax has made a range of submissions referencing her own research with regard to the vaccines. With respect, these submissions are irrelevant. HED 12/21 was a lawful direction. This appeal against a suspension without pay is not an opportunity for Ms Bax to re-prosecute her application for an exemption from HED 12/21. Ms Bax has exercised her right to seek an external review of the decision to decline her request for an exemption from the vaccine. That external review confirmed the decision to decline Ms Bax's request and the matter has now concluded.
- [54]Decisions made in the UK regarding the vaccine mandate for health workers are similarly irrelevant to this appeal and Ms Bax's submissions in this regard are of no assistance in deciding the appeal.
- [55]Ms Bax has made submissions about the 'legitimate and professional' medical documentation she provided to Queensland Health regarding her health issues. This documentation was considered by the Respondent who determined that it did not exempt her from vaccination. Ms Bax states in her reasons for appeal that if the Respondent wanted to question or reject her health issues, it was for them to ask for her to undertake a further medical evaluation. I do not agree with Ms Bax. The onus was on her as the applicant for exemption to furnish the required evidence establishing a medical contraindication. Ms Bax did not do so. There has been no new medical evidence put forward in this appeal which would serve to change the decision to decline Ms Bax's request for an exemption from HED 12/21.
Financial impact on Ms Bax and public interest in Ms Bax continuing to receive remuneration
- [56]Ms Bax has not made submissions regarding the financial impact that the suspension without pay may have on her. There is no doubt that an employee will experience hardship as a result of the suspension without pay. However, Ms Bax appears to be acutely aware that becoming vaccinated is the pathway back to work and is well aware of the consequences of non-compliance with the direction.
- [57]I accept that after weighing the impact of the suspension without remuneration on Ms Bax against the Department's obligations to ensure the effective, efficient and appropriate use of public resources and expenditure of public funds, Mr Waters determined that it was not in the public interest for Ms Bax to remain on suspension with pay. This is particularly reasonable in circumstances where Ms Bax has continued to choose not to comply with HED 12/21 even though she has indicated a willingness to be vaccinated.
Alternative duties were considered
- [58]Ms Bax is a Registered Nurse and her work is of a frontline nature. Ms Bax is unable to undertake her role from home and given HED 12/21 applied to all healthcare settings, it was reasonable for Mr Waters to consider that there were no appropriate alternative duties Ms Bax could be allocated or reasonable adjustments which would enable her to continue attending the workplace when considering the purpose of HED 12/21.
Conclusion and Order
- [59]Ms Bax's submissions indicate she is under the impression that she is able to use her vaccination status to negotiate a preferred outcome regarding the disciplinary process. This is a folly. Ms Bax has been directed to be vaccinated. It is her duty to comply with that direction. Failure to comply with a lawful direction given by a responsible person creates a situation where the outcome for the employee refusing to comply with the direction may be a disciplinary process. It seems to me that had Ms Bax simply done what she said she would do in February 2022, and received the Novavax vaccine when it became available, she may well at this point be back at work receiving remuneration and while the disciplinary process would likely continue, it would not necessarily lead to her termination.
- [60]For the foregoing reasons, the decision to suspend Ms Bax without remuneration was fair and reasonable in the circumstances.
- [61]I make the following order:
- The decision of 24 May 2022 determining that pursuant to s 137(4) of the PS Act Ms Bax should be suspended from duty without normal remuneration is confirmed.
Footnotes
[1] Ms Bax lists several articles published throughout 2020, 2021 and 2022.
[2] Respondent's submissions filed 12 July 2022, [21] and Attachment 9.
[3] Ibid Attachment 9.
[4] Ibid.
[5] Ibid.
[6] Department of Health and Aged Care, 'COVID-19 vaccine contraindications and precautions', ATAGI Clinical Guidance for COVID-19 Vaccine Providers (Web Page, 21 February 2022)
[7] It is not a matter for this appeal but it is important to note that Ms Bax requested an external review of the decision to decline her exemption request and that matter was considered by the Commission who confirmed the decision.
[8] Thorley v State of Queensland (Department of Education) [2022] QIRC 133 [85] (Thorley).
[9] Tilley v State of Queensland (Queensland Health) [2022] QIRC 002 [47], [48].
[10] Slykerman v State of Queensland (Queensland Health) [2022] QIRC 039 [36].
[11] Thorley (n 8) [94].