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  4. Mulhall v State of Queensland (Department of Education) - [2022] QIRC 325

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Mulhall v State of Queensland (Department of Education)[2022] QIRC 325

Mulhall v State of Queensland (Department of Education)[2022] QIRC 325

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Mulhall v State of Queensland (Department of Education) [2022] QIRC 325

PARTIES:

Mulhall, Jenny

(Appellant)

v

State of Queensland (Department of Education)

(Respondent)

CASE NO.:

PSA/2022/553

PROCEEDING:

Public Service Appeal – Appeal against suspension without pay – Application for longer period of time to start appeal

DELIVERED ON:

19 August 2022

HEARD AT:

On the papers

MEMBER:

McLennan IC

ORDER:

  1. The Appellant's application for a longer period to start her appeal is refused.

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL – where Appellant failed to comply with the Department of Education – Employment Direction 1/21 – COVID‑19 Vaccinations – where Respondent decided to suspend Appellant without pay – where Appellant appealed against decision to suspend her without pay – where Appellant started appeal 55 days outside of the 21 day limitation period – where Appellant applied for a longer period to start her appeal – consideration of relevant matters in respect of whether or not the discretion to allow the Appellant a longer period to start her appeal should be exercised – application refused

LEGISLATION & OTHER

INSTRUMENTS:

Industrial Relations Act 2016 (Qld) s 564

Public Service Act 2008 (Qld) S 137, s 194

Industrial Relations (Tribunal Rules) 2011 (Qld) r 14, r 45

Department of Education Employment Direction 1/21 - COVID-19 Vaccinations cl 3, cl 5

CASES:

Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175

Breust v Qantas Airways Ltd (1995) 149 QGIG 777

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298

Bruce Anthony Piggott v State of Queensland [2010] ICQ 35

Clarke v State of Queensland (Queensland Health) [2022] QIRC 089

Davies v State of Queensland (Queensland Health) [2022] QIRC 151

Geoffrey John Erhardt v Goodman Fielder Food Services Limited (1999) 163 QGIG 20

Gorry v State of Queensland (Department of Education) [2022] QIRC 196

Graffunder v State of Queensland (Queensland Health) [2022] QIRC 076

House v The King (1936) 55 CLR 499

Lloyd v Department of Communities, Child Safety and Disability Services [2013] QIRC 129

Megan Reimers v Aramaki Company (Australia) t/a Camira Child Care Centre [2002] 170 QGIG 1010

Miller v State of Queensland (Department of Education) [2022] QIRC 316

Radev v State of Queensland (Queensland Police Service) [2021] QIRC 414

Roger Carter Paterson v Medical Benefits Fund of Australia Limited (1998) 159 QGIG 232

Sunny v State of Queensland (Queensland Health) [2022] QIRC 119

Tonia Shelley v McRoberts Agency [2009] 190 QGIG 189

Reasons for Decision

Introduction

  1. [1]
    Ms Jenny Mulhall (the Appellant) is employed by the Department of Education, State of Queensland (the Department; the Respondent) as a Teacher Aide.[1]
  1. [2]
    On 16 December 2021, the Director-General of the Department issued the Department of Education Employment Direction 1/21 - COVID-19 Vaccinations (the Direction).[2]
  1. [3]
    Relevantly, cl 5 of the Direction mandated:

All Department of Education workers whose role (employed or otherwise) requires any attendance in a high-risk setting must:

  1. have received the first dose of a COVID-19 vaccine by 17 December 2021;
  1. as soon as reasonably practicable after the first dose of the COVID-19 vaccine and in any event no later than 5pm AEST on 7 January 2022, show evidence of having received the first dose in line with section 6 below;
  1. have received the prescribed number of doses of a COVID-19 vaccine by 11:59pm AEST on 23 January 2022; and
  1. as soon as reasonably practicable and in any event before attending a high-risk setting on 24 January 2022, show evidence of having received the prescribed number of Covid-19 vaccines in line with section 6 below.
  1. [4]
    Clause 3 of the Direction prescribed that "high-risk settings" include schools and outdoor education facilities.
  1. [5]
    On 10 January 2022, the Respondent advised the Appellant she is suspended on normal remuneration pursuant to s 137(1)(b) of the Public Service Act 2008 (Qld) (the PS Act). That advice was contained in correspondence from Ms Genevieve Gillies-Day, Executive Director, People and Corporate Services. Ms Gillies-Day also advised the Appellant she is giving consideration to suspending the Appellant without remuneration and invited the Appellant to show cause within seven days as to why she should not be suspended without remuneration.[3]
  1. [6]
    On 16 January 2022, the Appellant provided a response.[4]
  1. [7]
    On 17 February 2022, Mr Tim Gall, Executive Director of HR Shared Services at the Department (the decision-maker) advised the Appellant of his decision to suspend her without remuneration effective immediately (the Suspension Decision).[5]
  1. [8]
    On 16 March 2022, the Department's COVID Compliance Team advised the Appellant via email:

If you believe that the decision regarding your suspension without pay is unfair and unreasonable, you may lodge a fair treatment appeal under the appeal provisions of the Public Service Act 2008. The Queensland Industrial Relations Commission Industrial Registry will be able to provide further information about public service appeal procedures…

  1. [9]
    On 12 April 2022, the Appellant emailed the Industrial Registry a copy of a Form 89 Appeal Notice. In the Appeal Notice, the Appellant indicated she is "appealing a decision about suspension without pay" and the date she received the decision was 17 February 2022. On that same date, the Industrial Registry responded to the Appellant and advised that the Form 89 Appeal Notice requires an accompanying decision and requested that the Appellant provide a copy of the decision she is seeking to appeal at her earliest convenience.
  1. [10]
    On 4 May 2022, the Appellant again emailed a copy of the Form 89 Appeal Notice with a cover email stating "Below is email correspondence regarding the accompanying decision." The email correspondence "Below" was a letter dated 11 April 2022 from the Department to the Appellant which advised the Department had approved the Appellant accessing leave for the period she had nominated.
  1. [11]
    The Industrial Registry stamped the Form 89 Appeal Notice on 4 May 2022 and the appeal was allocated to me to hear and decide.
  1. [12]
    On 6 May 2022, the Industrial Registry issued correspondence to the parties on behalf of chambers as follows:

On page 3 of the Appeal Notice, Ms Mulhall indicates she is appealing a decision about suspension without pay that she received on 17 February 2022. Further, Ms Mulhall indicates she was advised by the Department that she could appeal the decision on 16 March 2022.

However, upon review of the Appeal Notice, only a letter dated 11 April 2022 has been attached which appears to constitute a "Decision on Leave Application" rather than the suspension without pay decision.

Either Ms Mulhall or the Respondent are asked to please provide the following:

  1. A copy of the suspension without pay decision that Ms Mulhall received on 17 February 2022; and
  1. The advice from the Department regarding appeal rights that Ms Mulhall received on 16 March 2022 (if in written form).
  1. [13]
    On 11 May 2022, the Department provided a copy of the Suspension Decision dated 17 February 2022 and correspondence dated 16 March 2022 in which the Department advised the Appellant of her appeal rights.
  1. [14]
    Despite the revocation of the COVID-19 Vaccination Requirements for Workers in a high-risk setting Direction (No. 2), the parties agreed that this appeal should proceed to be heard and decided.

The decision subject of this appeal

  1. [15]
    On p 3 of the Appeal Notice, the Appellant identifies the type of decision being appealed as "a decision about suspension without pay".
  1. [16]
    Section 194(1)(bb) of the PS Act provides that an appeal may be made against a decision to suspend a public service employee without entitlement to normal remuneration under s 137. On that basis, I am satisfied the Suspension Decision is appealable.

Timeframe to appeal

  1. [17]
    Section 564(3) of the Industrial Relations Act 2016 (Qld) (the IR Act) requires that an appeal be lodged within 21 days after the day the decision appealed against is given. That is the relevant inquiry with respect to timeframes. I note that despite the question posed in the Form 89 – Appeal Notice regarding when the decision was received.
  1. [18]
    The Suspension Decision was given to the Appellant on 17 February 2022. Therefore, the deadline for filing the Appeal Notice was 10 March 2022. I note that the Respondent did not advise the Appellant of her appeal rights in the Suspension Decision but rather advised her subsequently via email on 16 March 2022. Although advising the Appellant of her appeal rights would have been a courtesy, it is not a requirement. On that basis, it stands that the Suspension Decision was given to the Appellant on 17 February 2022.
  1. [19]
    The Appellant attempted to file the Appeal Notice on 12 April 2022, however filing was rejected by the Industrial Registry on the basis that the Appeal Notice did not annex a copy of the decision the Appellant sought to appeal. The Appeal Notice cover page clearly advises to "Please read this form carefully. Please complete all relevant sections. Information that is missing or non-compliant with the relevant section of an Act or the Rules may result in the rejection of your form." Then, on p 3 of the Appeal Notice, the Appellant ticked the box next to "I have attached a copy of the decision I am appealing. (Your appeal will not be processed unless a copy of the decision is provided with the Appeal Notice)." Despite being provided with that information and indicating that she had attached a copy of the decision, the Appellant did not do so.
  1. [20]
    For an unexplained reason, the Appellant then took some three weeks to respond to the Industrial Registry's request for the Suspension Decision – but instead of providing a copy of the decision she indicated she sought to appeal in her Appeal Notice, the Appellant filed a letter dated 11 April 2022 which purports to approve a leave application. I accept the Industrial Registry stamped the Appeal Notice on 4 May 2022 despite the fact the Appellant had not yet provided a copy of the Suspension Decision. I note that pursuant to r 14(1) of the Industrial Relations (Tribunals Rules) 2011 (Qld) (the Tribunals Rules), "A document is filed when the appropriate fee (if any) is paid and the document is stamped in the registry."
  1. [21]
    After an email was sent by the Industrial Registry to the parties on 6 May 2022 again requesting a copy of the decision being appealed, the Appellant did not respond but rather the Department provided a copy of the requested documentation on 11 May 2022. Despite the fact the Appellant did not comply with the requirements of filing an Appeal Notice, as the Industrial Registry stamped the document on 4 May 2022, I will accept that date as the date of filing.
  1. [22]
    The Suspension Decision was given to the Appellant on 17 February 2022. An Appeal Notice should have been filed by 10 March 2022 but was not filed until 4 May 2022 (at the earliest). The Appeal Notice was filed 55 days out of time.
  1. [23]
    In her Appeal Notice, the Appellant applies for an extension of time to lodge her appeal. I am empowered by the IR Act to extend the time for filing an appeal notice which I will consider below.[6]

Non-compliance with directions

  1. [24]
    On 13 May 2022, I issued a Directions Order requiring written submissions from both parties. The Appellant was directed to file written submission in further support of the appeal by 4:00pm on 20 May 2022 and to address why the appeal should be heard out of time.
  1. [25]
    The Appellant did not comply with that direction and so on 23 May 2022, the Industrial Registry emailed the parties to advise the following:

A Directions Order was issued on 13 May 2022 directing Ms Mulhall to file submissions in support of her Appeal Notice by 4:00pm on 20 May 2022. That direction has not been complied with. Further, no communication was received from Ms Mulhall requesting an extension of time before that due date.

This point of non-compliance with Directions combined with a lack of communication with the Industrial Registry seeking an extension of time enlivens the question as to why this Appeal should not be dismissed under r 45 of the Industrial Relations (Tribunals) Rules 2011 (Qld).

Ms Mulhall, please provide an explanation as to why the Directions Order has not been complied with by 4:00pm Today, 23 May 2022. If you do not intend to proceed with the Appeal, a Form 27 Request to discontinue proceeding should be filed and can be accessed here: Forms | Queensland Industrial Relations (qirc.qld.gov.au).

  1. [26]
    The Appellant did not provide a response by 4:00pm on 23 May 2022 and so on 25 May 2022, I issued a Further Directions Order requiring submissions as to why the Appeal should not be dismissed under r 45 of the Tribunals Rules.
  1. [27]
    On 25 May 2022, the Appellant emailed the Industrial Registry requesting more time to read and fully understand what she needed to do as she believed she had given all the required information.
  1. [28]
    On 27 May 2022, the Industrial Registry replied:

On 4 May 2022 you filed a Public Service Appeal. Later that day, email correspondence was provided to you and the Respondent attaching a copy of your Appeal Notice and providing a link to the Public Service Appeal Guide explaining the process you were embarking upon and stating "Please ensure that you carefully read all emails and open all attachments sent from the Queensland Registry."

Since that date, there have been numerous emails in regards to the Appeal you have initiated from both the Industrial Registry and the Respondent.

The Commission has issued two Directions Orders in your Appeal so far. An email issued to you on 23 May 2022 explained:

A Directions Order was issued on 13 May 2022 directing Ms Mulhall to file submissions in support of her Appeal Notice by 4:00pm on 20 May 2022. That direction has not been complied with. Further, no communication was received from Ms Mulhall requesting an extension of time before that due date.

This point of non-compliance with Directions combined with a lack of communication with the Industrial Registry seeking an extension of time enlivens the question as to why this Appeal should not be dismissed under r 45 of the Industrial Relations (Tribunals) Rules 2011 (Qld).

Ms Mulhall, please provide an explanation as to why the Directions Order has not been complied with by 4:00pm Today, 23 May 2022. If you do not intend to proceed with the Appeal, a Form 27 Request to discontinue proceeding should be filed and can be accessed here: Forms | Queensland Industrial Relations (qirc.qld.gov.au).

That email clearly expresses the task you had not completed by the required timeframe. As a result, you were asked to provide an explanation for your non-compliance by 4:00pm on 23 May 2022. That date too has passed.

In light of those two points of non-compliance, the latest email form the Industrial Registry attached a Further Directions Order requiring you to provide written submissions as to why your Appeal should not be dismissed under r 45 of the Industrial Relations (Tribunals) Rules 2011 (Qld) which states:

45 Failure to attend or to comply with directions order

  1. (1)
    This rule applies if—
  1. (a)
    a party to a proceeding receives notice of a directions order made by the court, commission or registrar stating a time, date and place for a hearing or conference for the proceeding; and
  1. (b)
    the party fails to attend the hearing or conference.
  1. (2)
    This rule also applies if—
  1. (a)
    a party to a proceeding receives notice of a directions order made by the court, commission or registrar; and
  1. (b)
    the party fails to comply with the order.
  1. (3)
    The court, commission or registrar may—
  1. (a)
    dismiss the proceeding; or
  1. (b)
    make a further directions order; or
  1. (c)
    make another order dealing with the proceeding that the court, commission or registrar considers appropriate, including, for example, a final order; or
  1. (d)
    make orders under paragraphs (b) and (c).

Ms Mulhall, you have until 4:00pm on 30 May 2022 (Monday) to provide those submissions. Inattention to regularly checking email correspondence issued with respect to a matter in progress initiated by yourself has not been seen in the past to be an adequate excuse for non-compliance with a Directions Order.

  1. [29]
    On 27 May 2022, the Appellant replied:

As a matter of urgency, could you please send/forward through the original directions order (attachment) that was sent to my email address on the 13th May.

While the below email chain shows it was sent to my email address, I do not have a copy of any attachment (or record of the original email) related to the original directions order. It has either gone to a spam folder or may have been accidentally deleted - this is the reason why I have not addressed the original directions order.

  1. [30]
    On 27 May 2022, the Appellant provided her submission as follows:

I believe the appeal should not be dismissed as the original directions order was misinterpreted by myself and I didn't understand that a response to that order was required. I do apologise as it is not a process that I am familiar with.

I have subsequently followed up with the commission (phone calls) and now provide this written submission to the further directions order. I can confirm that I have lodged a form 89 on the 12th April - I do not have any other formal written submissions in support of form 89 that was lodged.

I hope this meets the requirements of the further directions order but please advise if more information / documentation is required.

  1. [31]
    I note the above discussions regarding non-compliance. However, do not ultimately consider it necessary to decide that matter because for the reasons that follow, I have decided not to hear this Appeal out of time.

Should time for filing be extended?

  1. [32]
    The IR Act does not provide any criteria against which I am to determine whether or not to extend time. The question of whether to extend the time for filing an appeal notice is fundamentally an exercise of discretion. Such an exercise must be undertaken judicially and according to the rules of reason and justice, not arbitrarily or capriciously or according to private opinion.[7]
  1. [33]
    The Appellant bears the positive burden of demonstrating that the justice of the case requires the indulgence of an extension of time to file the Appeal Notice.[8] In that regard, I note the reasoning of McHugh J in Brisbane South Regional Health Authority v Taylor:

A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. Against this background, I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal to or greater than those provisions that enact limitation periods. A limitation provision is the general rule; an extension provision is the exception to it.[9]

  1. [34]
    In Breust v Qantas Airways Ltd,[10] Hall P set out the following considerations:
  • the length of the delay;
  • the explanation for the delay;
  • the prejudice to the Appellant if the extension of time is not granted;
  • the prejudice to the Respondent if the extension of time is granted; and
  • any relevant conduct of the Respondent.
  1. [35]
    Some additional considerations were provided by Linnane VP in Geoffrey John Erhardt v Goodman Fielder Food Services Limited.[11] These considerations were usefully summarised by Thompson IC in Lloyd v Department of Communities, Child Safety and Disability Services[12] and are paraphrased below:
  • the 21-day time limit must be respected and should not easily be dispensed with; and
  • the appellant's prospects of success at a substantive hearing are always a relevant matter where it appears an appellant has no, or very limited, prospects of success. In that instance, the Commission would not normally grant an extension of time.
  1. [36]
    Those cases were considering s 74(2)(b) of the Industrial Relations Act 1999 (Qld). However, they were answering substantively the same question as in this case - that is, what should inform the exercise of my discretion in extending the time to bring proceedings? As such, I find their assessment of the relevant factors to be highly persuasive in informing the exercise of my discretion. 
  1. [37]
    Additionally, my discretion is informed by the purpose of the PS Act, including promoting the effectiveness and efficiency of government entities.[13] In that regard, I am guided by the commentary of French CJ in Aon Risk Services Australia Limited v Australian National University:

Also to be considered is the potential for loss of public confidence in the legal system which arises where a court is seen to accede to applications (seeking the exercise of a discretion) made without adequate explanation or justification.[14]

  1. [38]
    I will now consider the circumstances in this matter against the abovementioned factors to determine whether I should exercise my discretion to hear this appeal out of time.

Length of delay

  1. [39]
    The Appeal Notice was filed 55 days out of time.
  1. [40]
    The 21-day appeal period has been determined by the legislature to be the appropriate period for a person to file an appeal.
  1. [41]
    The character of the delay, be it excessive, reasonable or otherwise, takes its colour from the surrounding circumstances.[15] It is true that in some cases delays of several weeks have been considered to be not excessive.[16] However, in such cases the delay is usually accompanied by a substantial explanation such as natural disasters, extraordinary personal circumstances such as a major health issue, or the like.
  1. [42]
    In conjunction with the reasons that follow, I find that a delay of 55 days is seriously significant and unreasonable in these circumstances.

Explanation for the delay

  1. [43]
    The Appellant provides the following explanation for the delay:
  • the Appellant has not previously been suspended without pay and so the process is new to her;
  • the Appellant was only advised she could appeal the decision by the Department on 16 March 2022;
  • the Appellant has since taken time to research options available to her;[17]
  • the Appellant did not have the financial capacity to seek professional legal aid because the Department removed her only source of income; and
  • the Appellant does not possess any tertiary qualifications or legal training and has navigated this process with personal research and assistance from others who are not legally qualified.[18]
  1. [44]
    Although the Appellant was not advised of her appeal rights in the Suspension Decision, I have noted above that the Department was not required to do so. In the absence of a requirement, it is an appellant's responsibility to educate themselves on their appeal rights. Regardless, the Department proceeded to advise the Appellant of her rights on 16 March 2022 and directed her to the QIRC website. Even after being advised of her rights to appeal, the Appellant did not formally file the appeal until some seven weeks after she received that advice. That is unreasonable in my view.
  1. [45]
    Appellants cannot be legally represented in Public Service Appeals[19] and there is no cost payable in filing an Appeal Notice. Unless represented by an agent, all appellants run their appeals themselves and are expected to file the Appeal Notice on time. Most of those appellants are not legally trained. Therefore, I reject the Appellant's contention that an absence of financial capacity and legal representation are reasonable excuses for the delay.
  1. [46]
    The 21-day time period for an Appeal Notice to be filed has been legislated and in the absence of a compelling reason for the delay I will not extend the time for filing.
  1. [47]
    The Appellant bears the positive burden of demonstrating that the justice of the case requires the indulgence of an extension of time to file the appeal.[20] On the balance of the evidence before me, the Appellant has not discharged that onus. Even if I am wrong in an aspect of this consideration, it is a culmination of the following factors that has contributed to my decision to refuse to hear this appeal out of time.

Conduct of the Respondent

  1. [48]
    The Department did not initially advise the Appellant of her appeal rights in the Suspension Decision. However, the Department did advise the Appellant of her rights on 16 March 2022 and directed her to the QIRC. The Respondent did not advise the Appellant of the appeal period, however I find it was unreasonable for the Appellant not to discover that information herself after being directed to the QIRC website and after seven weeks had elapsed.
  1. [49]
    That the Appellant seemingly was not aware of the timeframe is certainly regrettable but not a sufficient or compelling reason to dispense with the legislative timeframes for filing an appeal.
  1. [50]
    The Respondent's advice of the appeal rights supports the proposition that the length of the delay was unreasonable, and that an inadequate explanation for the delay is unacceptable.[21]

Prospects of success

  1. [51]
    An appellant's prospects of success at a substantive hearing is a relevant consideration.[22] I note the guidance on this factor provided by President Hall in Bruce Anthony Piggott v State of Queensland (emphasis added, citations removed):

In addition to these factors, the prospects of an application succeeding at a substantive hearing are also relevant, so that where it appears that an applicant has no, or very limited, prospects of success, the Commission should not grant an extension of time. However, the occasions for rejecting an application for an extension of time on the ground that the applicant has poor prospects of success will be few, and generally, the merits of an application are part of the general consideration of all relevant factors. In assessing the prospects of the substantive application succeeding, in the context of deciding an application to extend time, the merits or lack thereof of the substantive application must be clear cut, and will usually flow from formation of a view that there is an obstacle that no amount of evidence can overcome. Cases where a view may be formed so adverse to the applicant as to justify the refusal to extend time on that ground, will be rare.[23]

  1. [52]
    The reasons given by the decision-maker, for his decision to suspend the Appellant without remuneration, were that:
  • the submissions made by the Appellant indicate that she is not willing and/or able to comply with the Direction;
  • the Appellant has failed to comply with the Direction;
  • the decision-maker was not in receipt of any information that the Appellant had applied for or received an approved exemption due to medical contraindication or exceptional circumstance; and
  • it is not a responsible or appropriate use of public funds to allow the Appellant to continue to be paid while the process is underway.[24]
  1. [53]
    The Appellant submits that the Suspension Decision was not fair and reasonable because:
  • the Appellant questions whether the executive director had authority to make the Suspension Decision;
  • the Appellant is prepared to undergo COVID-19 testing and follow other reasonable health directives;
  • the vaccination has only been provisionally approved and there is a lack of science to determine potential long term risks;
  • the vaccination is not very effective at preventing infection;
  • there is no science to prove that vaccinated individuals cannot or are less likely to transmit the virus;
  • there has been an obvious lack of success in the effectiveness of the COVID-19 vaccinations;
  • South Australia dropped vaccination mandates on 30 March 2022 in education settings;[25]
  • there has been inconsistent and conflicting health advice;
  • the Chief Health Officer is not entitled to immunity from making incorrect judgments; and
  • the public interest is better served where there is transparency and accountability for government decisions.[26]
  1. [54]
    I have also considered the Respondent's reasons for why it contends the Suspension Decision is fair and reasonable, outlined at [21] - [23] of its submissions filed 31 May 2022.
  1. [55]
    In Miller v State of Queensland (Department of Education), Merrell DP concluded:
  1. [32]
    Since the introduction of vaccination mandates by a number of State government departments in 2021, Members of this Commission have made a number of decisions, in public service appeals, dealing with employees to whom such a mandate applies and who, in the absence of applying for or being granted an exemption from compliance with such a mandate, have decided not to follow the lawful direction given to them to be vaccinated against COVID-19. The constant principle in those cases is that there will be consequences for employees who refuse to comply with a lawful direction given to them by the State as their employer. Those consequences may include being suspended without remuneration and, or in the alternative, having disciplinary action taken against them, including the termination of their employment.
  1. [33]
    In my view, the same principle applies in the present case. Ms Miller was given a lawful direction by her employer to be vaccinated against COVID-19. Ms Miller, on the material before me, has never applied for an exemption in respect of compliance with that direction. Ms Miller has refused to comply with the Direction. In those circumstances, it is fair and reasonable for the State to suspend her from her employment without paying her remuneration.
  1. [34]
    For these reasons, my preliminary view is that Ms Miller has very low prospects of success in respect of her appeal.[27]
  1. [56]
    The submissions presented by the Appellant are largely analogous to those presented in the following matters which I have recently decided:
  • Gorry v State of Queensland (Department of Education);[28]
  • Graffunder v State of Queensland (Queensland Health);[29]
  • Sunny v State of Queensland (Queensland Health);[30]
  • Clarke v State of Queensland (Queensland Health);[31]
  • Davies v State of Queensland (Queensland Health);[32] and
  • Radev v State of Queensland (Queensland Police Service).[33]
  1. [57]
    Much of the Appellant's submissions may have been relevant had she applied for an exemption to the vaccination, however it does not appear that occurred on the material before me. In Gorry v State of Queensland (Department of Education),[34] I concluded:

Further, the Appellant appears to take issue with the decision-maker not taking into consideration her various concerns about receiving the COVID-19 vaccination. However, there is no evidence before me that suggests the Appellant formally applied for an exemption and she certainly was not granted one. At the point in time when the decision-maker turned to consider the issue of suspension without remuneration, the various reasons for why the Appellant had not complied with the Direction were irrelevant. The fact is that the Appellant did not comply with the Direction and did not have an exemption for that non-compliance. Had the Appellant felt her concerns were substantiated enough to apply for and obtain an exemption, she should have formally applied for an exemption and if her application had been refused, the Appellant should have appealed that refusal. It was not up to the decision-maker in the Suspension Decision to make that determination.[35]

  1. [58]
    For those reasons, I similarly share the preliminary view that the Appellant has very low prospects of success in respect of her appeal.

Prejudice to the Appellant

  1. [59]
    The Appellant will suffer some prejudice should the appeal be dismissed for filing out of time. The obvious prejudice is that she would lose the opportunity for an independent review of the Decision, and any subsequent relief.
  1. [60]
    That outcome is of course not an insubstantial detriment to the Appellant, who seeks to appeal a decision to suspend her without remuneration.
  1. [61]
    However, I have concluded above that the Appellant has limited prospects of success and the delay is significant - therefore while I accept there is some prejudice to the Appellant, I do not consider that to outweigh the other factors.

Prejudice to the Respondent

  1. [62]
    It is important to note that delay itself is considered to give rise to a general presumption of prejudice to the Respondent.[36] Furthermore, minimal additional prejudice to the Respondent in and of itself is an insufficient basis to grant an extension of time.[37]
  1. [63]
    I understand that the Respondent has needed to assess a large volume of similar matters. Therefore, a delay in filing this appeal was a delay in the overall process. This prejudice is compounded by my conclusion that the appeal has low prospects of success.
  1. [64]
    For those reasons, I find that the Respondent would suffer some prejudice should I decide to exercise my discretion to hear the appeal out of time.

Conclusion

  1. [65]
    The Appellant filed her Appeal Notice 55 days out of time – that is significant. The Appellant has not provided a persuasive explanation for that delay.
  1. [66]
    There is a suite of relevant considerations in exercising my discretion to hear an appeal out of time. Foremost, I should be satisfied that the Appellant has a reasonable ground for extending the time.
  1. [67]
    I have not been presented with an acceptable reason to depart from the legislatively prescribed timeframe of 21 days.
  1. [68]
    The Appellant will suffer some prejudice resulting from my decision to decline to hear the Appeal out of time as she will not receive an independent review of the suspension without remuneration decision on this occasion, or the subsequent relief she seeks. However, I do not consider that prejudice to be overwhelming particularly in light of my conclusion that she has limited prospects of success.
  1. [69]
    If I proceeded to hear the Appeal out of time, the prejudice to be suffered by the Respondent is also relevant.
  1. [70]
    For the reasons above, I find that the Appeal was filed out of time, and there is no reasonable ground to extend the time for filing.
  1. [71]
    I have determined not to exercise my discretion under s 564(2) of the IR Act to allow the Appeal to be started within a longer period.
  1. [72]
    I order accordingly.

Order:

  1. The Appellant's application for a longer period to start her appeal is refused.

Footnotes

[1] Appeal Notice, 4 May 2022, 1.

[2] Respondent's Submissions, 31 May 2022, 2 [12].

[3] Letter from Ms G. Gillies-Day to the Appellant, 10 January 2022. 

[4] Email from the Appellant to Ms G. Gillies-Day, 16 January 2022. 

[5] Letter from Mr T. Gall to the Appellant, 17 February 2022.  

[6] Industrial Relations Act 2016 (Qld) s 564(2).

[7] House v The King (1936) 55 CLR 499, [2].

[8] Megan Reimers v Aramaki Company (Australia) t/a Camira Child Care Centre [2002] 170 QGIG 1010; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 547.

[9] (1996) 186 CLR 541, 553.

[10] (1995) 149 QGIG 777.

[11] (1999) 163 QGIG 20; Roger Carter Paterson v Medical Benefits Fund of Australia Limited (1998) 159 QGIG 232.

[12] [2013] QIRC 129.

[13] Public Service Act 2008 (Qld) s 3.

[14] (2009) 239 CLR 175, [30].

[15]Tonia Shelley v McRoberts Agency [2009] 190 QGIG 189.

[16] See, eg, Lloyd v Department of Communities, Child Safety and Disability Services [2013] QIRC 129.

[17] Appeal Notice, 4 May 2022, 3.

[18] Appellant's Submissions, 7 June 2022, 1.

[19] Richards v State of Queensland (Queensland Ambulance Service) [2022] QIRC 159.

[20] Megan Reimers v Aramaki Company (Australia) t/a Camira Child Care Centre [2002] 170 QGIG 1010; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 547.

[21] Lloyd v Department of Communities, Child Safety and Disability Services [2013] QIRC 129.

[22] Geoffrey John Erhardt v Goodman Fielder Food Services Limited (1999) 163 QGIG 20; Roger Carter Paterson v Medical Benefits Fund of Australia Limited (1998) 159 QGIG 232.

[23] [2010] ICQ 35, [6].

[24] Letter from Mr T. Gall to the Appellant, 17 February 2022.

[25] Appeal Notice, 4 May 2022, 4.

[26] Appellant's Submissions, 7 June 2022.

[27] [2022] QIRC 316.

[28] [2022] QIRC 196.

[29] [2022] QIRC 076.

[30] [2022] QIRC 119.

[31] [2022] QIRC 089.

[32] [2022] QIRC 151.

[33] [2021] QIRC 414.

[34] [2022] QIRC 196.

[35] [2022] QIRC 196, 8 [42].

[36] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 556.

[37] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 300.

Close

Editorial Notes

  • Published Case Name:

    Mulhall v State of Queensland (Department of Education)

  • Shortened Case Name:

    Mulhall v State of Queensland (Department of Education)

  • MNC:

    [2022] QIRC 325

  • Court:

    QIRC

  • Judge(s):

    Member McLennan 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

Case NameFull CitationFrequency
Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
2 citations
Jump To
Cite 1 - (2009) 239 CLR 175
Cite 2 - (2009) 239 CLR 175
Breust v Qantas Airways Limited (1995) 149 QGIG 777
2 citations
Jump To
Cite 1 - (1995) 149 QGIG 777
Cite 2 - (1995) 149 QGIG 777
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
5 citations
Jump To
Cite 1 - (1996) 186 CLR 541
Cite 2 - (1996) 186 CLR 541
Cite 3 - (1996) 186 CLR 541
Cite 4 - (1996) 186 CLR 541
Cite 5 - (1996) 186 CLR 541
Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298
2 citations
Jump To
Cite 1 - (1995) 67 IR 298
Cite 2 - (1995) 67 IR 298
Clarke v State of Queensland (Queensland Health) [2022] QIRC 89
2 citations
Jump To
Cite 1 - [2022] QIRC 89
Cite 2 - [2022] QIRC 89
Davies v State of Queensland (Queensland Health) [2022] QIRC 151
2 citations
Jump To
Cite 1 - [2022] QIRC 151
Cite 2 - [2022] QIRC 151
Erhardt v Goodman Fielder Food Services Ltd. (1999) 163 QGIG 20
3 citations
Jump To
Cite 1 - (1999) 163 QGIG 20
Cite 2 - (1999) 163 QGIG 20
Cite 3 - (1999) 163 QGIG 20
Gorry v State of Queensland (Department of Education) [2022] QIRC 196
4 citations
Jump To
Cite 1 - [2022] QIRC 196
Cite 2 - [2022] QIRC 196
Cite 3 - [2022] QIRC 196
Cite 4 - [2022] QIRC 196
Graffunder v State of Queensland (Queensland Health) [2022] QIRC 76
2 citations
Jump To
Cite 1 - [2022] QIRC 76
Cite 2 - [2022] QIRC 76
House v The King (1936) 55 CLR 499
2 citations
Jump To
Cite 1 - (1936) 55 CLR 499
Cite 2 - (1936) 55 CLR 499
Lloyd v Department of Communities, Child Safety and Disability Services [2013] QIRC 129
4 citations
Jump To
Cite 1 - [2013] QIRC 129
Cite 2 - [2013] QIRC 129
Cite 3 - [2013] QIRC 129
Cite 4 - [2013] QIRC 129
Megan Reimers v Aramaki Company (Australia) t/a Camira Child Care Centre [2002] 170 QGIG 1010
3 citations
Jump To
Cite 1 - [2002] 170 QGIG 1010
Cite 2 - [2002] 170 QGIG 1010
Cite 3 - [2002] 170 QGIG 1010
Miller v State of Queensland (Department of Education) [2022] QIRC 316
2 citations
Jump To
Cite 1 - [2022] QIRC 316
Cite 2 - [2022] QIRC 316
Patterson v Medical Benefits Fund of Australia Limited (1998) 159 QGIG 232
3 citations
Jump To
Cite 1 - (1998) 159 QGIG 232
Cite 2 - (1998) 159 QGIG 232
Cite 3 - (1998) 159 QGIG 232
Piggott v State of Queensland [2010] ICQ 35
2 citations
Jump To
Cite 1 - [2010] ICQ 35
Cite 2 - [2010] ICQ 35
Radev v State of Queensland (Queensland Police Service) [2021] QIRC 414
2 citations
Jump To
Cite 1 - [2021] QIRC 414
Cite 2 - [2021] QIRC 414
Richards v State of Queensland (Queensland Ambulance Service) [2022] QIRC 159
1 citation
Jump To
Cite 1 - [2022] QIRC 159
Sunny v State of Queensland (Queensland Health) [2022] QIRC 119
2 citations
Jump To
Cite 1 - [2022] QIRC 119
Cite 2 - [2022] QIRC 119
Tonia Shelley v McRoberts Agency [2009] 190 QGIG 189
2 citations
Jump To
Cite 1 - [2009] 190 QGIG 189
Cite 2 - [2009] 190 QGIG 189

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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