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  4. Collins v State of Queensland (Queensland Health) - [2022] QIRC 318

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Collins v State of Queensland (Queensland Health)[2022] QIRC 318

Collins v State of Queensland (Queensland Health)[2022] QIRC 318

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Collins v State of Queensland (Queensland Health) [2022] QIRC 318

PARTIES:

Collins, Noela Jean

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NOS:

PSA/2022/573

PSA/2022/574

PROCEEDING:

Public Service Appeal – appeal against disciplinary decision – appeal against suspension without pay decision

DELIVERED ON:

15 August 2022

MEMBER:

Pidgeon IC

HEARD AT:

On the papers

ORDER:

  1. The decision of 29 April 2022 to suspend Ms Collins without pay is confirmed.

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

Hospital and Health Boards Act 2011 s 51A

CASES:

Collins v State of Queensland (Queensland Health) [2022] QIRC 215

Thorley v State of Queensland (Department of Education) [2022] QIRC 133

Reasons for Decision

Introduction

  1. [1]
    Noela Jean Collins (the Appellant) is employed by the State of Queensland (Queensland Health) (the Respondent) as a Patient Services Officer at the Townsville Hospital and Health Service, Queensland Health.
  1. [2]
    On 29 April 2022, following a show cause process, Sharon Kelly, Interim Executive Director Human Resources and Engagement, Townsville Hospital and Health Service (THHS), wrote to Ms Collins informing her that:
  1. The following allegation had been substantiated:

In contravention of a direction given to you by a responsible person, you have not: received your second dose of a COVID-19 vaccine by 31 October 2021, and/or provided evidence confirming that you have received the prescribed number of doses of a COVID-19 vaccine.

  1. On the basis of the allegation being substantiated, the decision-maker had determined that a disciplinary ground existed pursuant to section 187(1)(d) of the Public Service Act 2008 (the PS Act) in that Ms Collins had contravened, without reasonable excuse, a direction given to her as a health service employee by a responsible person.
  1. In a separate part of the letter, the decision-maker determined that Ms Collins should be suspended from duty without pay pursuant to s 137(1)(b) of the PS Act, effective from the date of the letter.
  1. [3]
    On 13 May 2022, Ms Collins filed PSA/2022/573, an appeal against a fair treatment decision.  Ms Collins attached the letter of 29 April 2022.  In her reasons for appeal set out in Part C of the appeal notice, Ms Collins said:

The basis of my appeal to decision to suspend myself without pay is

That my position was advertised in March 2022 and presumably filled in March/April 2022.  Having advertised my position and potentially filled my position would therefore suggest that more than serious consideration had already been given to my suspension without pay and would, I believe, severely limit/hinder my receiving a fair hearing on decision on suspension without pay. 

Therefore, I believe it is fair and reasonable that this decision to suspend without pay be reversed.

  1. [4]
    On 13 May 2022, Ms Collins also filed PSA/2022/574, an appeal against a suspension without pay decision.  The letter of 29 April 2022 is also attached to this appeal notice.  In her reasons for appeal set out in Part C of the appeal notice, Ms Collins said:

The basis of my appeal of the decision to suspend myself without pay is 2 fold

  1. That appeal process for the HED 12/21 is still waiting to be heard/read by the Queensland Industrial Relations Commission.  I believe that until this final decision is handed down I cannot in good consciousness make any further decisions on the matter and have requested that process be terminated with new timeline as listed below commence from the date of the final decision:

Nineteen (19) calendar days to receive safety and efficacy information, first dose of COVID-19 injection

Thirty-one (31) calendar days to receive second dose of COVID-19 injection

Seven (7) calendar days to provide evidence of injection to person of your choice.

This timeline is no different to the timeline for the directive and I believe fair and reasonable.

I have at all stages followed all requests and remain ready and willing to attend the workplace with adequate social measures to ensure the safety of patients, work environment, colleagues and myself that provided completely successful for 18 months during the pandemic when I was more than happy to continue working.  I have also offered to work from home for the duration of this protracted process to ensure meaningful work for remuneration.

  1. That my position was advertised in March 2022 and presumably filled in March/April 2022.  Having advertised my position and potentially filled my position would therefore suggest that more than serious consideration has already been given to my suspension without pay and would, I believe, severely limit/hinder my receiving a fair hearing on suspension without pay. Therefore, I believe it is fair and reasonable that this decision to suspend without pay be reversed until such time that a final decision on exemption is handed down and timeline mentioned above is started.
  1. [5]
    Both of these matters were allocated to me. I determined that as: both appeal notices are focused on the suspension without pay; attach the same decision; and the reason for appeal in PSA/2022/573 is very similar to the second reason for appeal set out in PSA/2022/574, it would be convenient to consider the matters together. On 23 May 2022, I ordered that the matters would be decided together and requested submissions from the parties addressing the appeal.

Is the Appellant entitled to appeal?

  1. [6]
    Section 194 of the PS Act lists various categories of decisions against which an appeal may be made. Section 194(eb) provides that an appeal may be made against 'a decision a public service employee believes is unfair and unreasonable (a fair treatment decision)'. An appeal against a decision to suspend without pay is provided for at s 194(bb) of the PS Act.
  1. [7]
    The appeal notices were filed with the Industrial Registry on 13 May 2022, both within the required 21 days of the decision dated 29 April 2022. I am satisfied that the Appellant may appeal the decision.

Appeal Principles

  1. [8]
    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.'
  1. [9]
    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.
  1. [10]
    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 Collins on 29 April 2022 was fair and reasonable.
  1. [11]
    In deciding this appeal, s 562C(1) of the IR Act provides that the Commission may:
  1. (a)
    confirm the decision appealed against; 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.

Directive 12/21

  1. [12]
    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 (the HHB Act).
  1. [13]
    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.
  1. [14]
    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).
  1. [15]
    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.

  1. [16]
    Clause 8 of Directive 12/21 sets out the mandatory vaccine requirements for existing employees as follows:

8.1Existing employees currently undertaking work or moving into a role undertaking work listed in a cohort of Table 1, must:

  1. have received at least the first dose of a COVID-19 vaccine by 30 September 2021; and
  2. 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:
  1. 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.
  2. 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.
  1. [17]
    Clause 10 of Directive 12/21 provides that where an employee is unable to be vaccinated, an exemption may be granted as follows:

10.1Where an employee is unable to be vaccinated they are required to complete an exemption application form.

10.2Exemptions 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.

10.3If 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.

  1. [18]
    Section 137(1) of the PS Act states:

The chief executive of a department may, by notice, suspend a person from duty if the chief executive reasonably believes –

  1. (a)
    for a public service officer – the proper and efficient management of the department might be prejudiced if the officer is not suspended; or
  2. (b)
    for a public service employee – the employee is liable to discipline under a disciplinary law.
  1. [19]
    Section 137(4) of the PS Act states:

A public service employee is entitled to normal remuneration during a suspension, unless –

  1. (a)
    the person is suspended under subsection (1)(b); and
  2. (b)
    the chief executive considers it is not appropriate for the employee to be entitled to normal remuneration during the suspension, having regard to the nature of the discipline to which the chief executive believes the person is liable.
  1. [20]
    Further, s 137(9) of the PS Act states:

In suspending a public service employee under this section, the chief executive must comply with –

  1. (a)
    the principles of natural justice; and
  2. (b)
    this Act; and
  3. (c)
    the directive made under section 137A.

Directive 16/20

  1. [21]
    Public Service Commission Suspension Direction 16/20 (Directive 16/20) addresses suspension without pay at cl 6:

    6.1Section 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.

    6.2A 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.

    6.3In deciding that normal remuneration is not appropriate, the factors the chief executive is to consider include:

    1. (a)
      the nature of the discipline matter
    2. (b)
      any factors not within the control of the agency that are preventing the timely conclusion of the discipline process
    3. (c)
      the public interest of the employee remaining on suspension with remuneration.

    6.4A decision to suspend an employee without remuneration is subject to the principles of natural justice. Natural justice is the right to be given a fair hearing and the opportunity to present one’s case, the right to have a decision made by an unbiased or disinterested decision maker and the right to have that decision based on logically probative evidence1. As part of the suspension process:

  1. (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.
  2. (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
  3. (c)
    The chief executive must provide the employee with a minimum of 7 days from the date of receipt of a show cause notice to consider and respond to the notice, having regard to the volume of material and complexity of the matter. The chief executive may grant, and must consider any request for, an extension of time to respond to a show cause notice if there are reasonable grounds for extension.
  4. (d)
    If the employee does not respond to a show cause notice or does not respond within the nominated timeframe in clause 6.4(b) and has not been granted an extension of time to respond, the chief executive may make a decision on grounds based on the information available to them.

The Appeal

  1. [22]
    It does not appear from either the appeal notices, nor Ms Collins' submissions, that she seeks to appeal the finding that the allegation was substantiated and that there are grounds for discipline under the Act.
  1. [23]
    Ms Collins makes submissions about whether it was fair to her application for an exemption from HED 12/21 to be declined.[1]  I note that during the course of the directions seeking submissions in this appeal, Ms Collins received a decision with regard to PSA/2022/27.  In that appeal, Ms Collins sought an external review of the internal review decision to uphold the decision to decline her request for an exemption.
  1. [24]
    The decision of the Commission in that matter confirmed the internal review decision.[2]  As a result of that process, Ms Collins is a person to whom HED 12/21 applies. 
  1. [25]
    Ms Collins makes a number of submissions regarding her requests for risk assessments and consultation regarding HED 12/21.  It has been well established in this Commission that there is no lawful ground upon which an employee may request a risk assessment in the context of HED 12/21 and that Queensland Health has fulfilled its obligation to consult. 
  1. [26]
    To be clear, the appeal I am considering relates to the suspension without pay.  Therefore, any submissions made by Ms Collins as to why it was unfair to deny her application for an exemption will not be considered.  Likewise, Ms Collins' views about vaccination and her objections to the mandate are not relevant.  Ms Collins has exercised her right to be heard on the refusal to grant her an exemption.  Ms Collins has also had an opportunity, through the disciplinary show cause process, to argue that she had a reasonable excuse to refuse to follow HED 12/21 
  1. [27]
    The decision of 29 April 2022 contains a disciplinary finding which Ms Collins does not appeal.  Therefore, I find that it is uncontentious that Ms Collins is liable for discipline.  As at the time of considering this appeal against the suspension without pay decision, I am unaware of whether there has been a final decision made with relation to the disciplinary action. 
  1. [28]
    In considering the appeal, I am focused solely on the submissions related to whether it was fair and reasonable for Ms Kelly to determine to suspend Ms Collins without pay.

Was the decision to suspend Ms Collins without remuneration fair and reasonable?

  1. [29]
    In considering this appeal, I have read all of the submissions and material made available to me by the parties.  As stated above, I am focusing on the suspension without pay and submissions relevant to that matter.  As I have considered the submissions, I have also considered the matters Ms Kelly was required to address under Directive 16/20, that is: the nature of the disciplinary matter; any factors not within the control of the agency preventing the timely conclusion of the discipline process; and the public interest of the employee remaining on suspension with remuneration.  

Procedural Fairness

  1. [30]
    I have reviewed the material provided to me and I am satisfied that Ms Collins was provided an opportunity to respond to the proposal to suspend her without remuneration. The decision of Ms Kelly dated 29 April 2022 demonstrates that Ms Collins' response was considered.  Further to that, Ms Kelly provides extensive reasons explaining the decision. I am satisfied that Ms Kelly has fulfilled the requirements of the Act and Directive 16/20 to provide natural justice and a written notice of the reasons for the suspension without remuneration.
  1. [31]
    I note that Ms Collins raises a concern that she received the suspension without pay decision at 4.55pm on 29 April 2022 and that the suspension was effective from the date of the letter even though she did not receive it until the end of the day.  The Respondent says that the timing of the letter does not render the decision unfair or unreasonable and that the decision was sent to Ms Collins during the general working hours of the Department.  I have considered these submissions and I do not think the time of day Ms Collins received the letter serves to make the suspension without pay unreasonable.

Vaccine exemption process

  1. [32]
    Ms Collins' first appeal ground is made with relation to the vaccine exemption process.  As discussed above, that process is not relevant to this appeal and Ms Collins' appeal regarding that decision has been considered and decided by Knight IC who confirmed the decision.
  1. [33]
    However, it is not only the fairness of the exemption decision that Ms Collins has an issue with.  Ms Collins' submissions in response to the proposal to suspend her without pay argued that she should not be suspended without remuneration until the review of the decision to decline her exemption request was completed.[3]  Ms Collins' requested that the process be terminated until the final decision on exemption and that from the date of the decision on exemption she should be provided with additional time to receive information, risk assessment for her workplace and any other information afforded to staff during the process.
  1. [34]
    Ms Kelly addressed this matter in her decision

On 11 September 2021, the HED was issued.  Section 51A of the Hospital and Health Boards Act 2011 authorises the chief executive to issue health employment directives about the conditions of employment for health service employees.  The HED is lawful, applies to you and you are required to comply with it…

Your response of 7 March 2022 does not provide any personal factors for my consideration and/or how the proposal to change your suspension to without pay will affect your person.  You have however requested that the show cause process be stayed until your Public Service Appeal be decided.  I do not consider this request reasonable given you have been aware of your obligation to comply with the HED since the 11 September 2021 and that no stay has been advised by the Commission.

  1. [35]
    The Respondent submits that HED 12/21 was issued nine months ago and Ms Collins has had more than adequate time to decide whether or not to receive the vaccination and she has repeatedly indicated her unwillingness to do so.
  1. [36]
    There was no requirement for the Department to maintain Ms Collins' suspension on pay while the exemption decision was under review. While Ms Collins remained unvaccinated, and as discussed below, there were no reasonable alternative duties for her to undertake and she was unable to attend work due to HED 12/21.  In these circumstances, it was reasonable for Ms Collins to be suspended with remuneration pending a decision on suspension without remuneration.

 Financial impact on Ms Collins and the public interest of Ms Collins remaining on suspension without remuneration

  1. [37]
    As stated above at [34], Ms Kelly noted that Ms Collins had not made any submissions about the impact a suspension without pay may have on her.  However, Ms Kelly goes on to say:

I appreciate that my decision to change your suspension to without pay will have a financial impact, however, I do not consider that it is in the public interest or an appropriate use of public resources to continue to maintain your suspension with pay whilst the Allegation against you remains outstanding and in circumstances where you are unable to work in or enter a Townsville HHS facility.

  1. [38]
    Ms Collins submits that continuing to pay her while the exemption decision was being appealed would be 'prudent use of my taxpayer dollar'.  Ms Collins says that she contributes to public funds which supports her request for alternative duties.
  1. [39]
    The Respondent says that the decision to suspend Ms Collins without remuneration is fair and reasonable in circumstances where Ms Collins has made a choice not to comply with HED 12/21 and is unable to undertake her duties.[4]  The Respondent says that:

on the basis the Department is under a statutory obligation to ensure the effective, efficient, and appropriate use of public resources, including the expenditure of public funds, and having regard to the serious nature of the disciplinary matter on foot, it was entirely reasonable for Ms Kelly to determined that it was not in the public interest for Ms Collins to remain suspended on normal remuneration, receiving public monies…[5]

  1. [40]
    I note the Respondent's submissions that if Ms Collins was to succeed in her appeal, the Department would remediate any loss of pay suffered by her and Ms Kelly informed Ms Collins that she was able to access her leave entitlements during the period of suspension without pay.
  1. [41]
    Ms Collins is unable to undertake her frontline role and the decision-maker determined there are no reasonable alternatives available (discussed below). As Ms Collins' role was essential and needed to be backfilled, and several months had passed since HED 12/21 was introduced, I find that it was open to Ms Kelly to determine that it was not in the public interest to continue to pay Ms Collins while she was on suspension.

Consideration of all reasonable alternatives

  1. [42]
    A decision-maker is required to give consideration to reasonable alternatives prior to suspending an employee. 
  1. [43]
    Ms Collins submits that she is 'willing to attend the workplace' with 'adequate social measures to ensure…safety…' Ms Collins also says that she has offered to work from home for the duration of the process.  I take these submissions to mean that Ms Collins believes adequate consideration was not given to all reasonable alternatives which may have been made to enable Ms Collins to continue working rather than being suspended.
  1. [44]
    Ms Collins says 'virtual work is being completed by staff within the THHS facilities still to date and as such is not something that is impossible to facilitate'.  Ms Collins says that she has been denied the opportunity given to others to undertake virtual work and this 'would not pass a fairness test'. 
  1. [45]
    Ms Collins says that while she cannot perform her entire role remotely, she could complete her role at an alternative site and travel to patients to complete their paperwork.  Ms Collins says that this would have a profound benefit to patients, via a less threatening setting and would fulfil one of Queensland Health's core values of providing patient centred care.
  1. [46]
    The Respondent says that Ms Collins' duties involve 'welcoming, admitting and processing patients arriving for scheduled surgery' and that her duties cannot be undertaken from home.
  1. [47]
    In her decision of 29 April 2022, Ms Kelly notes the submissions made by Ms Collins in response to the proposal to suspend her without pay:

You stated that during the exemption process, you have offered to be a virtual assistant for the Townsville HHS, that you are still eager to see this option be utilized, that it was negligent of you not to have included this in earlier correspondence but at the time you were not in the best of health. You stated that your peers and line manager were enthusiastic about the concept and potential but were advised that the option was declined by upper management.

You put forward a list of potential tasks that could be undertaken by you which would assist employees across Townsville HHS, including creating and/or updating desktop manuals and procedures, typing meeting minutes and letters, HBCIS error correction, detection and prevention methods, appointment bookings, document processing, data entry and assistance to silo operators to achieve more and refute that working from home is not a reasonable alternative as many duties of Patient Service Officers can be performed virtually.  You recognize that this is a short-term solution and is only offered whilst this process is completed to a mutually agreeable conclusion.

  1. [48]
    With regard to alternative duties, Ms Kelly's decision said:

I further consider that there are no alternate duties available as unless you have received the prescribed doses of a COVID-19 vaccine you are unable to work in or enter a facility where care is provided and as you are employed as a Patient Service Officer, working from home (virtually) is not a viable alternative.

  1. [49]
    In circumstances where HED 12/21 required all employees working in health care facilities to be vaccinated, it was reasonable for Ms Kelly to determine that there were no reasonable alternatives available which would enable Ms Collins to attend the workplace.  With regard to the working from home option, it appears that even Ms Collins' own submission was that working from home was only a short-term solution and one that she was only seeking while the exemption application review process was underway.  Ms Collins' role is clearly one which requires her to attend the workplace.  I find that it was open to Ms Kelly to determine that working from home on an ongoing basis was not a viable alternative to suspension.

Ms Collins' position was advertised and this severely limited or hindered her receiving a fair hearing on the suspension without pay

  1. [50]
    One of the only reasons provided by Ms Collins in her appeal notice was that the HHS  advertised her position in her absence during March or April 2022 and this means that she did not receive a fair hearing with regard to her suspension without pay.
  1. [51]
    The Respondent addresses this matter in its submissions filed on 9 June 2022:
  1. Ms Collins is engaged on a temporary contract until 12 July 2022, as the substantive position holder is currently on maternity leave;
  2. The substantive position holder has recently requested a further 12 month extension to her leave;
  3. As noted above, the role of Patient Services Officer is a front-line role and is required to be filled due to the nature of the duties. The consequence of the duties not being undertaken is that surgeries are delayed and/or cancelled;
  4. Ms Collins has been out of the workplace since 1 November 2021;
  5. The THHS has utilised the casual pool to backfill Ms Collins' temporary contract;
  6. An Expression of Interest was undertaken to temporarily fill the position for six months;
  7. Only one candidate was found to be meritorious, however they have since accepted alternative employment; and
  8. The position remains unfilled with the THHS seeking to utilise casuals to undertake the duties.
  1. [52]
    In submissions filed on 23 June 2022, Ms Collins says that she had been employed by Queensland Health since 14 November 2011 and has worked in various capacities and workplaces with 'no previous blemishes' and she feels that if 'this matter' had not arisen, she would have been granted a further 12-month contract.
  1. [53]
    Ms Collins says that while she is not obliged to work for Queensland Health, she enjoys her work and that until the introduction of HED 12/21 she has been 'fairly treated and consulted'.  Ms Collins asks 'what gives QH the sole rite with a stroke of a pen to end a long and blemish free career?'[6]
  1. [54]
    The Respondent says Ms Collins' submissions (above [48]) are not correct for the reasons set out at [47] and that in any event, the issue of whether Ms Collins will be granted a further extension of her contract is a separate matter and is not a relevant consideration in determining this appeal.  Further, with regard to Ms Collins' submission (above [53]) that her career has been ended, the Respondent says that no decision has been made as to the disciplinary action to be imposed with respect to the disciplinary process.
  1. [55]
    Ms Collins is temporarily employed and was unable to attend work and do her job.  Her temporary appointment was due to end on 12 July 2022, she had not been in the workplace since November 2021 and she had demonstrated no intention whatsoever to comply with HED 12/21.  In the circumstances, it was entirely reasonable for the HHS to seek to fill the position.  The decision to advertise an expression of interest in the role is not evidence that Ms Collins was being treated unfairly, rather it is evidence that the HHS required someone to be in the workplace to undertake the duties of the Patient Services Officer position.

The nature of the disciplinary matter

  1. [56]
    At the time that the decision was made to suspend Ms Collins without remuneration, Ms Kelly had also determined that there were grounds for disciplinary action to be taken against Ms Collins.  The nature of the substantiated allegation was serious, as Ms Collins' failure to follow the lawful direction rendered her unable to attend her workplace and undertake her duties.  It was open to Ms Kelly to determine that the nature of the disciplinary matter warranted suspension without remuneration.

Ms Collins' human rights were considered

  1. [57]
    Ms Collins' submits that her human rights have not been considered.
  1. [58]
    The Respondent says that Ms Collins' human rights were considered throughout the show cause process.  Ms Kelly determined any limitation to Ms Collins' human rights was demonstrably justified because it is in the public interest to ensure that employees comply with directions issued to them (including directions relating to public health and work health and safety).  Ms Kelly also determined it was in the public interest for decision-makers to abide by their fiscal responsibilities and use public resources appropriately and that this outweighs the limited potential impact on her human rights at this time.
  1. [59]
    I have reviewed the decision of 29 April 2022 and note that Ms Kelly addressed human rights at the bottom of page 8 and the top of page 9 of the letter.  It is clear that Ms Kelly considered Ms Collins' human rights and provided reasons for her decision.

Conclusion and Order

  1. [60]
    Having considered all submissions and material provided to me and for the reasons set out at [29]-[59], I find that the decision of Ms Kelly dated 29 April 2022 suspending Ms Collins without remuneration pursuant to section 137(4) was fair and reasonable.  With regard to both PSA/2022/573 and PSA/2022/574 I order:
  1. The suspension without pay decision of 29 April 2022 is confirmed.

Footnotes

[1] Appellant's submissions filed 23 June 2022.

[2] Collins v State of Queensland (Queensland Health) [2022] QIRC 215, [62]-[63].

[3] As set out in the decision letter of 29 April 2022.

[4] Thorley v State of Queensland (Department of Education) [2022] QIRC 133, [94].

[5] Respondent's final submissions filed 30 June 2022, [11].

[6] Appellant's submissions filed 23 June 2022, [37].

Close

Editorial Notes

  • Published Case Name:

    Collins v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Collins v State of Queensland (Queensland Health)

  • MNC:

    [2022] QIRC 318

  • Court:

    QIRC

  • Judge(s):

    Pidgeon IC

  • Date:

    15 Aug 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
Collins v State of Queensland (Queensland Health) [2022] QIRC 215
2 citations
Jump To
Cite 1 - [2022] QIRC 215
Cite 2 - [2022] QIRC 215
Thorley v State of Queensland (Department of Education) [2022] QIRC 133
2 citations
Jump To
Cite 1 - [2022] QIRC 133
Cite 2 - [2022] QIRC 133

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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