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Sainty v State of Queensland (Queensland Health)[2022] QIRC 306

Sainty v State of Queensland (Queensland Health)[2022] QIRC 306

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Sainty v State of Queensland (Queensland Health) [2022] QIRC 306

PARTIES:

Sainty, Dianne

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO.:

PSA/2022/595

PROCEEDING:

Application to stay decision appealed against

DELIVERED ON:

12 July 2022

HEARING DATE:

12 July 2022

MEMBER:

Merrell DP

HEARD AT:

Brisbane

DATES OF WRITTEN SUBMISSIONS:

Appellant's written submissions filed on 17 June 2022 and Respondent's written submissions filed on 29 June 2022

ORDER:

The Appellant's application to stay the decision appealed against is dismissed.

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL – Appellant employed by the State of Queensland as a Dental Assistant in the Sunshine Coast Hospital and Health Service – cl 8 of the Health Employment Directive No. 12/21 – Employee COVID‑19 vaccination requirements required existing employees, who are employed to work in a hospital or other facility where clinical care or support is provided, to have received at least a first dose of a COVID-19 vaccine by 30 September 2021 and a second dose of a COVID‑19 vaccine by 31 October 2021 unless exempted – Appellant applied for exemption – Appellant not granted exemption – Appellant then directed to be vaccinated – Appellant failed to be vaccinated – Appellant invited to show cause why a disciplinary finding should not be made against her in relation to the allegation she did not comply with the direction that she receive a second dose of a COVID-19 vaccine by 31 October 2021 and why she should not be suspended without remuneration – Appellant submitted response which referred to her matter being raised to a Stage 3 grievance in accordance with various instruments – decision made that the Appellant be suspended without remuneration – Appellant appealed against decision and Appellant applied for stay of decision – whether stay of decision should be granted – stay not granted

LEGISLATION:

Health Employment Directive No. 12/21 - Employee COVID-19 vaccination requirements, cl 7, cl 8 and cl 10

Hospital and Health Boards Act 2011, s 51A

Industrial Relations Act 2016, s 566

Public Service Act 2008, s 137

CASES:

Colebourne v State of Queensland (Queensland Police Service) [2021] QIRC 380

APPEARANCES:

Mr D. Kerr of QNurses Inc. as agent on behalf of the Appellant.

Ms D. Conrad and Mr W. Campbell of the Sunshine Coast Hospital and Health Service for the State of Queensland (Queensland Health).

Reasons for Decision (ex tempore)

Introduction and background

  1. [1]
    Ms Dianne Sainty is employed by the State of Queensland as a Dental Assistant at the Caloundra Hospital which is part of the Sunshine Coast Hospital and Health Service ('the Health Service'). Ms Sainty is employed through Queensland Health ('the Department').
  1. [2]
    Dr John Wakefield, the former Chief Executive of the Department, pursuant to s 51A(1) of the Hospital and Health Boards Act 2011, approved, with effect from 11 September 2021, Health Employment Directive No. 12/21 - Employee COVID‑19 vaccination requirements ('the Directive').
  1. [3]
    The combined effect of cls 7 and 8 of the Directive is that employees who are employed to work in a hospital or other facility, where clinical care or support is provided, had to provide to their line manager, or upload into the designated system, evidence that they had received the first dose of a COVID‑19 vaccine by 30 September 2021 and that they had received the second dose of a COVID‑19 vaccine by 31 October 2021.
  1. [4]
    By cl 10 of the Directive, an employee is not required to be so vaccinated if they are granted an exemption because the employee has a recognised medical contraindication, has a genuinely held religious belief or where '… another exceptional circumstance exists.'
  1. [5]
    There is no dispute that clinical care or support is provided at the Caloundra Hospital and that in her role as a Dental Assistant at that Hospital, Ms Sainty was required to be vaccinated against COVID-19 in accordance with the direction contained in the Directive.
  1. [6]
    On about 30 September 2021, Ms Sainty applied for an exemption against compliance with the Directive. The basis upon which Ms Sainty sought the exemption was that there was another exceptional circumstance, namely:
  1. that Dr Wakefield, in issuing the Directive, did not comply with the required duty to consult pursuant to the Work Health and Safety Act 2011; and
  1. the lack of engagement around the risks of the COVID-19 vaccine triggered in her concerns that the process was inconsistent with her human rights, namely, that the Directive contains a direction which would force her to undergo medical treatment without being provided with information necessary to give her full, free and informed consent.
  1. [7]
    By letter dated 10 November 2021, Mr Colin Anderson, Executive Director People and Culture of the Health Service:
  1. advised Ms Sainty that her application for an exemption was not approved; and
  1. directed Ms Sainty to receive the required dose of a COVID-19 vaccine in accordance with the Directive and to provide written confirmation she had complied with that requirement within 14 days of her receipt of his letter ('the direction').
  1. [8]
    By further letter dated 25 January 2022 from Mr Warren Campbell, Director HR Operations of the Health Service, Ms Sainty:
  1. was asked to show cause why it should not be found that she had failed to comply with the direction;
  1. was advised that she was, pursuant to s 137(1)(b) of the Public Service Act 2008 ('the PS Act'), suspended with pay; and
  1. was asked to respond in writing as to why she should not be suspended without normal remuneration.
  1. [9]
    By letter dated 2 February 2022, Ms Sainty provided a response ('Ms Sainty's response').
  1. [10]
    By letter dated 10 May 2022 from Mr Campbell, Ms Sainty was advised that she would be suspended from duty without remuneration immediately and that suspension would remain in place until 29 July 2022 ('the decision').
  1. [11]
    By appeal notice filed on 31 May 2022, Ms Sainty, pursuant to ch 7, pt 1 of the PS Act, appealed against the decision. In Schedule B to her appeal notice, Ms Sainty sought a stay of the decision the subject of the appeal.
  1. [12]
    The present question for my determination is whether or not I should grant a stay of the decision.

The decision

  1. [13]
    In the decision, Mr Campbell:
  1. referred to Ms Sainty's response, including where she stated that she saw no reason why her application for leave should be denied '… while this issue is live.'; and
  1. stated that it was clear Ms Sainty had not received the required number of doses of a COVID-19 vaccine pursuant to the Directive and that, as such, he was satisfied that Ms Sainty may be liable for discipline pursuant to s 137(4) of the PS Act.
  1. [14]
    Mr Campbell then stated, in respect of his decision that Ms Sainty should be suspended from duty without remuneration pursuant to s 137(4) of the PS Act:

In reaching my decision; I have considered the following:

  • You have chosen not to follow the requirements of the Health Employment Directive No 12/21 Employee COVID-19 vaccination requirements (HED 12/21).
  • Your role has been designated as being required to be vaccinated against COVID-19 within the scope of HED 12/21 with a vaccine approved by the Therapeutic Goods Administration (TGA). This decision was made by the Director General on the basis that a safe reliable COVID-19 vaccination program has been available to Queensland Health employees for some time, and, as Australia shifts to living with the virus, it recognises the expectation upon employers to protect both their workers and the public accessing their services.
  • I am also mindful that, in addition to promoting the health and wellbeing of yourself, your colleagues and persons accessing health care through requiring vaccination, the purpose of the mandate is to ensure the continued readiness of the health system to respond to the changing nature of the pandemic-
  • I also do not consider alternative duties, or a temporary transfer, or other alternative working arrangement to be available or appropriate in the current circumstances having regard to:
  • the feasibility of working from home or alternate facilities and determined this is not a suitable option available to you given your substantive role as a Dental Assistant, Caloundra Hospital requires the provision of support services that directly impacts the care to patients of the Health Service.
  • On 25 October 2021, the Director-General issued an email to all Departmental employees, mandating that employees who work in hospitals and healthcare facilities were to be fully vaccinated by 1 November 2021.
  • Your work location is a hospital, specifically Caloundra Hospital.
  • Since 13 December 2021, except in specific circumstances, a person who is unvaccinated (other than a patient of the hospital) must not enter or remain at a hospital. Further, since 10 November 2021, a worker in healthcare must not enter, work in, or provide services in a healthcare setting unless the worker in healthcare complies with the COVID-19 vaccination requirements.
  • Accordingly, you are unable to attend a hospital (other than as a patient).
  • Clause 6.3(c) of the Suspension Directive requires that I give consideration to the public interest of an employee remaining on suspension with remuneration. Whilst I acknowledge your decision not to have the required COVID-19 vaccinations, I have a statutory obligation to manage public resources efficiently, responsibly and in a fully accountable way.
  • Having regard to the Sunshine Coast Hospital and Health Service's obligation to ensure the efficient management of public resources, and the importance of ensuring the safety of healthcare workers, support staff, their families» and the patients under our care, I do not consider it is in the public interest for you to remain on suspension with remuneration whilst your matter is brought to a conclusion.
  1. [15]
    Mr Campbell also stated that Ms Sainty may access her leave entitlements during a period of suspension at her discretion.

Ms Sainty's submissions

  1. [16]
    In her written submissions in support of a stay of the decision, Ms Sainty submitted that:
  1. she has an arguable case, albeit with no certainty of success; and
  1. the balance of convenience favours the stay being granted because:
  1. (i)
    there is no real risk of detriment to the State having regard to the limited time until the final determination of her appeal; and
  1. (ii)
    the issue relates to her continuity of income and, as such, that is disproportionally beneficial to Ms Sainty as against the interests of the State and even if Ms Sainty remained suspended with remuneration, that would not have a significant effect on the State.
  1. [17]
    I note that in her written submissions, Ms Sainty did not particularise why, in respect of the substantive matter the subject of her appeal, she had an arguable case.
  1. [18]
    In oral submissions, Mr Kerr of QNurses Inc., as agent for Ms Sainty, submitted that the stay should be granted because:
  1. the decision will be reviewed on 29 July 2022;
  1. Ms Sainty is presently without income; and
  1. it may be a number of months before there is any decision about whether or not she would be dismissed.

The State's submissions

  1. [19]
    In its written submissions, the State submitted that the discretion to grant a stay, contained in s 566 of the Industrial Relations Act 2016 ('the IR Act'), should only be exercised where the balance of convenience favours the granting of the stay and where there is an arguable case on appeal.
  1. [20]
    The State then submitted:
  1. With respect to prospects of success, while Ms Sainty has purportedly commenced her Appeal on the basis that she is appealing a current discipline decision, no disciplinary findings have been made. Ms Sainty's Appeal makes Sainty v State of Queensland (Queensland Health) [2022] QIRC 306submissions regarding, among other things, the lawfulness of HED 12/21, the 'Disciplinary Decision' and the 'Exemption Declinature Decision'. Ms Sainty's Appeal does not identify why the decision to suspend her without pay was not fair or reasonable. Ms Sainty's Stay Application only submits she has an arguable case and that Ms Sainty having continuity of income would have no real risk of detriment to the Department.
  1. Having regard to the submissions attached to the Appeal, Ms Sainty appears to be pressing an appeal against the decision to suspend her without pay as a mechanism to appeal the decision to implement HED 12/21 and Mr Anderson's decision to not grant her an exemption from compliance with HED 12/21. The Department submits Sainty v State of Queensland (Queensland Health) [2022] QIRC 306that Ms Sainty has limited prospects of success in relation to her Appeal.
  1. [21]
    In respect of the balance of convenience, the State submitted:
  1. Mr Campbell's decision to place Ms Sainty on suspension from duty without pay properly considered the nature of the disciplinary matter and considered all reasonable alternatives in accordance with s 137(3) and (4) of the PS Act;
  1. Mr Campbell determined that it was not in the public interest for Ms Sainty to remain suspended on normal remuneration, receiving public monies, while the disciplinary process in respect of her non-compliance with the Directive remained on foot;
  1. there is nothing in the appeal notice or in her application for a stay which supports a finding that Ms Sainty has an arguable case on appeal or that the balance of convenience favours the granting of a stay; and
  1. Ms Sainty was afforded natural justice throughout the show cause process and if she was to succeed in her appeal, the Department would remediate any loss of pay suffered by her.
  1. [22]
    In oral submissions, Ms Conrad, on behalf of the State, submitted that Ms Sainty does not have an arguable case and that the balance of convenience did not favour the granting of the stay, in essence, for the same reasons given in the State's written submissions. Ms Conrad informed me that Ms Sainty had appealed the decision not to grant her an exemption from the requirement to comply with the direction, that appeal has yet to be determined and that, as a consequence, the disciplinary process against Ms Sainty has been put on hold.

The discretion to grant a stay and the relevant principles

  1. [23]
    I dealt with the principles that may be considered in the exercise of discretion to grant, pursuant to s 566 of the IR Act, a stay of a decision appealed against in Colebourne v State of Queensland (Queensland Police Service).[1] In that case, I relevantly stated:

Section 566(1) of the IR Act

  1. [28]
    Section 566(1) of the IR Act provides:

566  Stay of decision appealed against

  1. (1)
    On an appeal, the industrial tribunal may order that the decision being appealed be wholly or partly stayed pending-
  1. (a)
    the determination of the appeal; or
  1. (b)
    a further order of the industrial tribunal.
  1. [29]
    There is no dispute that s 566(1) of the IR Act is the source of discretionary power for the Commission to stay the decision against which Ms Colebourne has appealed.
  1. [30]
    However, on the clear words used in that section, the discretion conferred on the Commission to grant a stay is only in respect of '… the decision being appealed'. The only decision that Ms Colebourne has appealed, pursuant to ch 7, pt 1 of the PS Act, is the decision conveyed by Superintendent Lawrence on 14 October 2021, being that her application for exemption had not been approved and that she was required to receive a COVID-19 vaccination by 16 October 2021. Ms Colebourne has not appealed any other decision.
  1. [31]
    The only discretionary power I have, pursuant to s 566(1) of the IR Act, is in respect of the decision conveyed by Superintendent Lawrence because that is the decision against which Ms Colebourne has appealed.

The relevant principles in granting a stay of a decision pending an appeal of the decision

  1. [32]
    Section 566(1) of the IR Act confers an unfettered discretion on the Commission to grant a stay of a decision being appealed.
  1. [33]
    The parties agree on the relevant principles that apply, in determining whether or not to exercise discretion, to grant a stay. They are:
  • the onus is on the applicant to demonstrate a proper basis for a stay that will be fair to all parties;
  • the mere filing of an appeal will not, of itself, provide a reason or demonstrate an appropriate case, nor will it discharge the onus which the applicant bears;
  • the tribunal has a discretion whether or not to grant a stay and, if so, as to the terms that would be fair;
  • in the exercise of its discretion, the tribunal will weigh considerations such as the balance of convenience and the competing rights of the parties before it;
  • where there is a risk that the appeal will prove abortive if the applicant succeeds and a stay is not granted, tribunals will normally exercise their discretion in favour of granting a stay;
  • where it is apparent that unless a stay is granted, an appeal will be rendered nugatory, this will be a substantial factor in favour of the grant of a stay; and
  • although tribunals approaching applications for a stay will not generally speculate about the applicant's prospects of success, given that argument concerning the substance of the appeal is typically and necessarily attenuated, this does not prevent them considering the specific terms of a stay that will be appropriate fairly to adjust the interests of the parties, from making some preliminary assessment about whether the applicant has an arguable case.
  1. [34]
    The prospects of success will obviously tend to favour the refusal of a stay if the prospects of the appeal can be seen to be very poor.
  1. [35]
    In general, the balance of convenience involves a consideration of whether the inconvenience or injury which the applicant would be likely to suffer if a stay is refused outweighs or is outweighed by the injury which the respondent would suffer if a stay was granted.
  1. [36]
    The above-mentioned principles have been applied by the Industrial Court of Queensland and by the Commission in respect of applications for stays of decisions, pending appeals or reviews of the decisions, in other analogous statutory contexts.[2]

This is not a case where a stay of the decision appealed against should be ordered

  1. [24]
    I am not persuaded that this is a case where I should order the stay of the decision appealed against by Ms Sainty.
  1. [25]
    First, in my view, Ms Sainty has a poor case in respect of her appeal against the decision.
  1. [26]
    Ms Sainty was suspended with pay by Mr Campbell effective 25 January 2022. In coming to that decision, Mr Campbell stated that:
  1. he reasonably believed Ms Sainty was liable to discipline under a disciplinary law because of her failure to be vaccinated in accordance with the Directive; and
  1. he did not consider that alternative duties, or a temporary transfer, or other alternative working arrangements were available or appropriate having regard to the facts that Ms Sainty:
  1. (i)
    was subject to the Directive and was required to be vaccinated against COVID-19 should she work in a facility where care was provided;
  1. (ii)
    was substantively employed in a frontline clinical role with her skill set that is predominantly patient focused; and
  1. (iii)
    has failed to provide evidence that she had received the prescribed doses of a COVID-19 vaccine.
  1. [27]
    Mr Campbell concluded by stating that there were no viable alternative working arrangements available, at that time, that were appropriate to the operational requirements of the Health Service that would not require Ms Sainty to attend a facility where care was provided.
  1. [28]
    Those reasons were essentially repeated in the decision to suspend Ms Sainty without remuneration.
  1. [29]
    Having regard to these facts, which are not seriously in dispute, my view is that Ms Sainty has poor prospects in respect of her appeal against the decision to suspend her without remuneration. Ms Sainty has refused to comply with the lawful direction that she receive the required doses of a COVID-19 vaccine. This, together with the inability to reasonably redeploy or transfer Ms Sainty, given she is substantively employed in a frontline clinical role, with her skill set predominantly patient focused, leads me to conclude that her appeal against the decision to suspend her without remuneration is a poor one.
  1. [30]
    I have been informed today that Ms Sainty has appealed the decision not to approve her application for an exemption, and that appeal is yet to be determined. Although not pressed by Ms Sainty, the fact that appeal is outstanding does not persuade me Ms Sainty has an arguable case on appeal. There are two reasons for this. First, as I read that decision, which was annexed to the State's submissions, it also directed Ms Sainty to receive the required dose of a COVID-19 vaccine. There is no evidence Ms Sainty complied with that direction. Secondly, having regard to the grounds upon which Ms Sainty sought the exemption she did, which I have set out earlier in these reasons for decision, I do not think that she has a strong case in that appeal having regard to other decisions made by this Commission about the same or similar arguments made in other public service appeals and in other proceedings about COVID-19 mandates.
  1. [31]
    In terms of the balance of convenience, my view is that any inconvenience or injury which Ms Sainty would be likely to suffer, if a stay is refused, is not outweighed by the injury which the State would suffer if a stay was granted.
  1. [32]
    Ms Sainty has refused to be vaccinated despite the requirement she be vaccinated as provided for in the Directive. Mr Campbell came to the reasonable belief that Ms Sainty was liable to discipline under a discipline law because of that failure to comply with the direction to be vaccinated as contained in the Directive. In my view, because of the undisputed facts that Ms Sainty is subject to the Directive and has made a deliberate decision not to comply with the direction that she be vaccinated, there was objective evidence upon which a reasonable person could come to the same view to which Mr Campbell came.
  1. [33]
    Furthermore, given that there are no alternative duties, or a temporary transfer, or other alternative working arrangements available or appropriate which could result in Ms Sainty continuing to work in her position, my opinion is that the injury the State would suffer, in having to continue to pay Ms Sainty in those circumstances, outweighs the injury to Ms Sainty in not being paid for the period of her suspension.
  1. [34]
    To simply submit, as Ms Sainty does, that the State can afford to continue paying her is too narrow a basis upon which to consider the balance of convenience. The State has obligation to manage public resources efficiently, responsibly and in a fully accountable way. That obligation would not be met by requiring the State to pay Ms Sainty from 10 May 2022 in circumstances where Ms Sainty is suspended without pay for reasons that include her deliberate failure to comply with the lawful direction to be vaccinated. The fact that Ms Sainty's suspension without pay is to be reviewed on 29 July 2022 does not change those facts.
  1. [35]
    For these reasons, I am not persuaded that I should stay the decision appealed against.

Conclusion

  1. [36]
    For the reasons I have given, I will not grant the stay of the decision as sought by Ms Sainty.

Order

  1. [37]
    I make the following order:

The Appellant's application to stay the decision appealed against is dismissed.

Footnotes

[1] [2021] QIRC 380.

[2] Citations omitted.

Close

Editorial Notes

  • Published Case Name:

    Sainty v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Sainty v State of Queensland (Queensland Health)

  • MNC:

    [2022] QIRC 306

  • Court:

    QIRC

  • Judge(s):

    Merrell DP

  • Date:

    12 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
Colebourne v State of Queensland (Queensland Police Service) [2021] QIRC 380
2 citations
Jump To
Cite 1 - [2021] QIRC 380
Cite 2 - [2021] QIRC 380

Cases Citing

Case NameFull CitationFrequency
Sainty v State of Queensland (Queensland Health) (No. 2) [2023] QIRC 782 citations
1

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