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  4. Rudd v State of Queensland (Queensland Health) - [2022] QIRC 323

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Rudd v State of Queensland (Queensland Health)[2022] QIRC 323

Rudd v State of Queensland (Queensland Health)[2022] QIRC 323

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Rudd v State of Queensland (Queensland Health) [2022] QIRC 323

PARTIES: 

Rudd, Sarah

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

PSA/2022/582

PROCEEDING:

Public Service Appeal – appeal against suspension without pay decision

DELIVERED ON:

19 August 2022

MEMBER:

Pidgeon IC

HEARD AT:

On the papers

ORDER:

  1. The suspension without remuneration decision of 28 April 2022 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, 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

Reasons for Decision

Introduction

  1. [1]
    Ms Sarah Rudd (the Appellant) is employed by the State of Queensland (Queensland Health) (the Respondent) as a Registered Nurse, Emergency Department at Redcliffe Hospital, Metro North Health.
  1. [2]
    On 19 May 2022, Ms Rudd filed a Form 89 appeal notice.  Part B of the notice requires that the appellant tick a box indicating the 'type of decision being appealed'.  Ms Rudd has ticked the box stating 'I am appealing a current discipline decision'.
  1. [3]
    The decision attached to the appeal notice was not a discipline decision but a suspension without pay decision.  The decision was dated 28 April 2022.  In that decision, Ms Louise Oriti, Executive Director, Redcliffe Hospital, informed Ms Rudd that:

…pursuant to section 137(4) of the Act, I have determined that it is not appropriate for you to be paid normal remuneration during your suspension, having regard to the public interest, due to ensuring risk is appropriately managed regarding the health and safety of the public and the nature of the discipline matter.  I have therefore determined that, effective immediately, the suspension with remuneration will take effect from 22 April 2022 and will remain in place until 20 May 2022 at which time I will consider the issue of your suspension afresh.

  1. [4]
    Attached to the appeal notice were extensive submissions. Schedule A-1 of the submissions is titled 'Grounds for Appealing the Disciplinary Decision'.  Schedule A-2 is titled 'Background of events leading up to the purported grounds for discipline and then any disciplinary decision or action'.  Schedule B is titled 'Interim and final orders sought'.  Clause 2 of Schedule B sets out the final orders sought and says:

2.1 For the Appellant's Disciplinary Finding the subject of this Appeal, the Commission sets aside the decision and replace the Decision determining that there are no grounds for Discipline. 

2.2 Any other directions considered appropriate.

  1. [5]
    As the appeal and the submissions appeared to address a disciplinary decision but there was no disciplinary decision attached to the appeal notice (instead there was a suspension without pay decision), on Monday 23 May 2022, I requested that the Industrial Registry write to Ms Rudd's representative, NPAQ as follows:

Good afternoon,

I write seeking clarification in the above matter filed in the Industrial Registry on 19 April 2022.[1]

The appeal notice (attached) states this is an appeal against a disciplinary decision, however there is no disciplinary decision attached.

Based on the decision that is attached to the appeal notice, is it the case that NPAQ intended to file an appeal against a decision to suspend Ms Rudd without pay?

Please advise if a substituted decision or amended appeal will be forthcoming as soon as practicable before this matter can proceed.

…

  1. [6]
    On Wednesday 8 June 2022, Mr David Kerr, Senior Case Manager, Red Union Support Hub, replied to that correspondence and said 'In respect of the above email from the Commission, please see attached decision subject of the appeal.  Please advise if you require anything further.' Attached to that email was a copy of a letter dated 24 May 2022 under the hand of Ms Louise Oriti, the purpose of which was to extend the suspension without remuneration up to and including 19 June 2022.
  1. [7]
    I took this communication and the attached letter extending the suspension without pay to mean that it was intended that Ms Rudd was appealing the suspension without pay and not a disciplinary decision as stated in the appeal notice and so on 9 June 2022, I issued directions that Ms Rudd file written submissions addressing the suspension without pay decision by 4:00 pm on 23 June 2022.
  1. [8]
    On Wednesday 6 July 2022, the Respondent wrote to the Industrial Registry to inform that no submissions had been received on 23 June 2022 as directed but that Mr Kerr (the Appellant's representative) had advised that Ms Rudd would rely on the detailed written submissions which accompanied the appeal notice.
  1. [9]
    On the same day, Mr Kerr sent an email confirming the Respondent's understanding and apologising for the oversight in not relating this to either the Registry or the Respondent.  I then issued further directions providing the Respondent with an extension of time to file their submissions in reply to the appeal against the suspension without pay decision.
  1. [10]
    On 13 July 2022, the Respondent filed their written submissions.  On 28 July 2022 filed submissions in reply.  These will be addressed below.

Is the Appellant entitled to appeal?

  1. [11]
    Section 194 of the Public Service Act 2008 (Qld) (the PS Act) lists various categories of decisions against which an appeal may be made. Section 194(bb) provides that an appeal may be made against a decision to suspend without pay.  The two decisions provided to by the Appellant, the suspension without pay and the extension of the suspension without pay, are decisions which may be appealed.
  1. [12]
    The appeal notice was filed with the Industrial Registry on 19 May 2022, within the required 21 days of the decision dated 28 April 2022. I am satisfied that the Appellant may appeal the decision.

Appeal Principles

  1. [13]
    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. [14]
    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. [15]
    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 Rudd on 28 April 2022 was fair and reasonable.
  1. [16]
    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. [17]
    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. [18]
    Clause 1 of Directive 12/21 provides that compliance with the Directive is mandatory. Clause 2 further 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. [19]
    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. [20]
    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. [21]
    Clause 8 of Directive 12/21 sets out the mandatory vaccine requirements for existing employees as follows:
  1. 8.1
    Existing 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. [22]
    Clause 10 of Directive 12/21 provides that where an employee is unable to be vaccinated, an exemption may be granted as follows:
  1. 10.1
    Where an employee is unable to be vaccinated they are required to complete an exemption application form.
  1. 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.
  1. 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.
  1. [23]
    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. [24]
    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. [25]
    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. [26]
    Public Service Commission Suspension Direction 16/20 addresses suspension without pay at cl 6.
  1. 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.
  1. 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.
  1. 6.3
    In 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.
  1. 6.4
    A 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.

Submissions of the parties

Ms Rudd's submissions

  1. [27]
    As discussed above, the submissions Ms Rudd attaches to her appeal notice do not directly address the suspension without pay decision.  Ms Rudd's representative confirmed that Ms Rudd would rely on those submissions rather than filing any submissions addressing the suspension without pay decision as per the directions I issued on 9 June 2022.  I will therefore assume that Ms Rudd contends that the decision of 28 April 2022 to suspend her without remuneration was not fair and reasonable.
  1. [28]
    As there were no submissions before me addressing the suspension without remuneration decision, I looked to the decision and the attached material provided to me by the Respondent to consider submissions made by Ms Rudd in response to the proposal to suspend her without remuneration.
  1. [29]
    On 8 April 2022, Ms Oriti wrote to Ms Rudd affording 'the opportunity to respond in writing, within seven (7) calendar days of receipt of this letter, why you should not be suspended without normal remuneration.'
  1. [30]
    The Respondent says that Ms Rudd was required to provide a response to the proposal to suspend her without remuneration by 15 April 2022 but failed to do so.
  1. [31]
    According to the Respondent's submissions, on 22 April 2022, Ms Rudd responded to the First Show Cause Notice.  The Respondent says that this submission repeated Ms Rudd's concerns about a lack of risk assessment and consultation.  Ms Rudd also requested that termination of her employment be 'taken off the table' and that she be placed on leave until the matter was resolved.  The Respondent says that Ms Rudd did not provide any submissions in response to the Allegation or the proposed suspension without pay in her letter dated 22 April 2022.  I have reviewed that correspondence.[2]  It does not contain any submissions addressing the proposal to suspend Ms Rudd without pay, and in any event, it was received seven days after the date Ms Rudd was required to reply.
  1. [32]
    The decision of 28 April 2022 states:

I note that you have not provided a response to my correspondence dated 8 April 2022 and therefore you have not advised why you should not be suspended without normal remuneration.  In my previous correspondence I advised you a decision would be made based on the information available to me.

  1. [33]
    Alongside the suspension without remuneration process subject of this appeal, Ms Oriti was undertaking a disciplinary show cause process regarding Ms Rudd's non-compliance with HED 12/21. I note that on 24 May 2022, Ms Oriti provided Ms Rudd with seven days to respond addressing why Ms Oriti should not impose the disciplinary action of termination of employment.  That correspondence also advised Ms Rudd of the extension to the suspension from duty without pay.[3]
  1. [34]
    The Respondent advises that no decision has yet been made on the disciplinary action to be taken and that Ms Rudd's suspension without pay has been extended until 16 September 2022.

Respondent's submissions

Nature of the disciplinary matter: failure to follow a reasonable and lawful direction to comply with the vaccination requirements set out in HED 12/21

  1. [35]
    The Respondent says that the decision was fair and reasonable.  The direction to Ms Rudd to comply with the vaccination requirements set out in HED 12/21 was made considering the significant risk to the health and safety of healthcare workers, support staff, their families, and the patients under Metro North Health's (MNH) care.
  1. [36]
    The Respondent says that at the time Ms Rudd was suspended without pay, she was alleged to have failed to follow a reasonable and lawful direction to comply with the vaccination requirements set out in HED 12/21 which the Respondent notes was issued in September 2021, some eight months before the suspension without pay decision.
  1. [37]
    The Respondent says that Ms Rudd's application for exemption was finalised on 21 March 2022 and at the time of the decision to suspend her without pay on 28 April 2022, Ms Rudd had been non-compliant with the Direction to be vaccinated for two months. 
  1. [38]
    The Respondent says that it is clear from Ms Rudd's correspondence with MNH that she does not intend to become vaccinated.  The Respondent says '…it is clear Ms Rudd does not intend to comply with the direction given to her'.[4]

Public interest and financial impact on Ms Rudd

  1. [39]
    The Respondent says that Ms Oriti considered her 'statutory obligation to manage public resources effectively, responsibly and in a fully accountable way'.  Ms Oriti considered that Ms Rudd had been made aware of the requirement on 11 September 2021 and that MNH had provided sufficient time for employees to comply with the direction.  The Respondent says that Ms Oriti did not consider it was an appropriate use of public monies for Ms Rudd to remain on suspension with remuneration for any further period.
  1. [40]
    The Respondent says that Ms Oriti considered the potential impact of her decision to suspend Ms Rudd without pay and noted it would have a financial impact. The financial impact on Ms Rudd must be 'balanced against the Department's obligations as outlined above at [39]. 
  1. [41]
    The Respondent notes that Ms Rudd is not precluded from seeking employment with another employer during the period of suspension from duty.

Human Rights were considered

  1. [42]
    The Respondent says that Ms Rudd's human rights were considered throughout the show cause process.

Alternative duties were considered

  1. [43]
    The Respondent submits that Ms Rudd's duties are clinical in nature and could not be undertaken from home and that it was not reasonable or practical to allow Ms Rudd to work from home.  The Respondent says that work from home was not a solution and would not be fair on Ms Rudd's colleagues, patients and the community.
  1. [44]
    The Respondent says that Ms Rudd cannot perform her duties as a Registered Nurse while she remains unvaccinated and that it was entirely reasonable for Ms Oriti to determine that there were no alternative roles or reasonable adjustments available which appropriately managed the risk that arises from Ms Rudd's non-compliance with the direction.

Ms Rudd's submissions in reply

  1. [45]
    Ms Rudd's representative filed submissions in reply on 28 July 2022.  Due to the brief nature of those submissions, I will simply quote them here:

Introduction

  1. These submissions are in response to the respondent's outline of submissions and the directions order provided by Commissioner […] on […] 2022.[5]
  1. This reply to the Respondent's submission is confined to remarks made in respect of paragraph 17 of the same submission, viz:

"Taking into account the period of time during which her application for an exemption was being considered (which was finalised on 21 March 2022), at the time of the decision to suspend her without pay on 28 April 2022, Ms Rudd has not complied with the requirement to be vaccinated for two months. It is clear from Ms Rudd's correspondence with MNH that she does not intend to become vaccinated.  In other words, it is clear Ms Rudd does not intend to comply with the direction given to her."

  1. We submit that, unless these communications clearly indicate the Appellant intends to never comply with HED 12/21, we cannot formulate any presumption to the same. The Applicant maintains the possibility of compliance at some time in the future.

Consideration and Order

  1. [46]
    I have reviewed the materials, including all correspondence relevant to the suspension without remuneration. I am satisfied that Ms Rudd has been provided with natural justice and that her human rights have been considered throughout the process.
  1. [47]
    The Suspension Directive requires that Ms Oriti consider particular matters when determining whether to suspend Ms Rudd without remuneration. 
  1. [48]
    There is no doubt that it was open to Ms Oriti to find that Ms Rudd was liable for discipline.  At the time of the decision to suspend Ms Oriti without pay, she was the subject of a disciplinary show cause process regarding her non-compliance with HED 12/21.  At the time that the suspension without pay was extended, Ms Rudd remained non-compliant with the Direction and a finding had been made that the allegation was substantiated and that there were grounds for disciplinary action to be taken against her.
  1. [49]
    Clause 6 of the Suspension Directive required that in deciding to suspend Ms Rudd without  remuneration, she give consideration to: the nature of the disciplinary matter; any factors not within the control of the agency that are preventing the timely conclusion of the discipline process; and the public interest of the employee remaining on suspension with remuneration.  The decision of 28 April 2022 said:

Whilst I have had careful regard to all material before me, including your response, I have determined that in accordance with section 137(4) of the Act that you should be suspended from duty without normal remuneration for the following reasons:

  • the nature of the disciplinary matter; and
  • the public interest in ensuring management of public resources effectively, efficiently and economically.

I note it is alleged that you have failed to follow a reasonable direction to comply with the vaccination requirements set out in the Health Directive 12/21 Employee COVID-19 vaccination requirements (the Directive)…The failure by you to follow the terms of the Directive, in conjunction with subsequent failure to follow a lawful and reasonable direction to adhere to the Directive, demonstrates a potential unwillingness (if proven) to comply with Metro North Health, and Queensland Health, policy over an extensive period of time.  The nature of the disciplinary matter is therefore of a serious nature.

  1. [50]
    I find that Ms Oriti carefully considered the seriousness of the disciplinary matter and that it was open to Ms Oriti to consider that, in circumstances where Ms Rudd had refused to follow a lawful direction and that refusal resulted in her being unable to attend to her duties and perform her role, that the discipline matter was one which warranted suspension without remuneration.
  1. [51]
    The Respondent's submissions outlined above address the 'public interest'.  Ms Oriti found that Ms Rudd had been given the direction in September 2021 and that she had been given a reasonable amount of time to comply with the direction.  It was open to Ms Oriti to determine, for the reasons she provided, that it was not in the public interest to continue paying Ms Rudd.  This is particularly in circumstances where Ms Rudd had been afforded some months to become vaccinated and had not done so.
  1. [52]
    In her closing submission in reply, Ms Rudd addresses the Respondent's submission that it is clear that she does not intend to comply with the direction and says that she 'maintains the possibility of compliance at some time in the future'. Whether or not Ms Rudd decides to receive the vaccination is a matter for her.  However, in circumstances where her continuing employment in her chosen profession is at risk, she may wish to consider the 'possibility of compliance' sooner rather than later.
  1. [53]
    Having considered all submissions and material provided to me, for the foregoing reasons, I find that the decision of Ms Oriti dated 28 April 2022 suspending Ms Rudd without remuneration pursuant to section 137(4) was fair and reasonable.

Order

  1. The suspension without remuneration decision of 28 April 2022 is confirmed.

Footnotes

[1] This is a typographical error as the matter was filed on 19 May 2022.

[2] Respondent's submissions filed 13 July 2022, Attachment 2.

[3] Ibid Attachment 5.

[4] Respondent's submissions filed 13 July 2022, [17].

[5] This appears to be a typographical error in the Applicant's reply submissions.

Close

Editorial Notes

  • Published Case Name:

    Rudd v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Rudd v State of Queensland (Queensland Health)

  • MNC:

    [2022] QIRC 323

  • Court:

    QIRC

  • Judge(s):

    Pidgeon IC

  • Date:

    19 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

No judgments cited by this judgment.

Cases Citing

Case NameFull CitationFrequency
Shield v State of Queensland (Queensland Ambulance Service) [2022] QIRC 4392 citations
Stafford v State of Queensland (Queensland Health) [2022] QIRC 3442 citations
1

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