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  4. Stafford v State of Queensland (Queensland Health) - [2022] QIRC 344

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Stafford v State of Queensland (Queensland Health)[2022] QIRC 344

Stafford v State of Queensland (Queensland Health)[2022] QIRC 344

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Stafford v State of Queensland (Queensland Health) [2022] QIRC 344

PARTIES:

Stafford, Teresa

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NOS.:

PSA/2022/530 & PSA/2022/575

PROCEEDING:

Public Service Appeal – appeal against a suspension without pay decisions

DELIVERED ON:

1 September 2022

MEMBER:

Power IC

HEARD AT:

On the papers

ORDER:

  1. That matter PSA/2022/530 is dismissed for want of jurisdiction.
  1. That the decision appealed against, the subject of matter PSA/2022/575, is confirmed pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld).

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – Public Service Appeal – appeal against suspension without pay decision – decision fair and reasonable – appeal lodged out of time – whether extension of time should be granted – extension of time not granted

LEGISLATION:

Hospital and Health Boards Act 2011 (Qld), s 51A

Industrial Relations Act 2016 (Qld), ss 562B, 562C and 564

Public Service Act 2008 (Qld), ss 137 and 194

CASES:

A1 Rubber (Aust) Pty Ltd v Chapman (Office of Industrial Relations) [2019] ICQ 16

Blackie v State of Queensland (Queensland Police Service) [2022] QIRC 085

Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245

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

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

Casson v State of Queensland (Queensland Police Service) [2022] QIRC 113

Chapman v State of Queensland [2003] QCA 172

Gilmour v Waddell & Ors [2019] QSC 170

Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018)

Rae v State of Queensland (Queensland Health) [2022] QIRC 160

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

Reasons for Decision

Introduction

  1. [1]
    Ms Teresa Stafford ('the Appellant') is employed by the State of Queensland (Queensland Health) ('the Respondent') as an Anaesthetic Technician at the Royal Brisbane and Women's Hospital ('RBWH'), Metro North Hospital and Health Service ('MNHHS').
  1. [2]
    By letter dated 24 January 2022, the Appellant was issued a show cause notice by Dr David Rosengren, Executive Director, RBWH, inviting the Appellant to show cause regarding an allegation that she failed to follow a reasonable and lawful direction to comply with vaccination requirements in accordance with the Health Employment Directive 12/21 regarding employee COVID-19 vaccination requirements ('Directive 12/21'). The letter further informed the Appellant that she was suspended from duty with normal remuneration and that consideration was also given to suspend the Appellant without normal remuneration. The Appellant was provided with 14 days to respond as to why inter alia she should not be suspended without normal remuneration.
  1. [3]
    The Appellant subsequently provided responses on 7 February 2022 and 28 March 2022 to the Respondent's consideration to suspend her without normal remuneration.
  1. [4]
    By letter dated 29 March 2022, Ms Gillian Nasato, Acting Executive Director, RBWH, MNHHS, informed the Appellant that she be suspended from duty without normal remuneration from 30 March 2022 to 26 April 2022 at which time, Ms Nasato would consider the issue of the Appellant's suspension afresh.
  1. [5]
    By letter dated 28 April 2022, the Appellant was informed that her suspension without normal remuneration was extended to 17 May 2022.
  1. [6]
    The Appellant subsequently filed appeal notices in the Queensland Industrial Relations Commission ('the Commission'), appealing against the following decisions, pursuant to s 194(1)(bb) of the Public Service Act 2008 (Qld) ('the PS Act'):
  1. (a)
    decision of Ms Nasato dated 29 March 2022 filed on 26 April 2022 (PSA/2022/530); and
  1. (b)
    decision of Ms Nasato dated 28 April 2022 filed on 13 May 2022 (PSA/2022/575).
  1. [7]
    Upon receipt of appeal notices, I determined for the matters PSA/2022/530 and PSA/2022/575 be joined to be decided by the Commission, noting that the parties did not object to the matters being joined and determined together.

Appeal principles

  1. [8]
    The appeal must be decided by reviewing the decision appealed against.[1] Because the word 'review' has no settled meaning, it must take its meaning from the context in which it appears.[2] An appeal under ch 11 pt 6 div 4 of the Industrial Relations Act 2016 (Qld) ('the IR Act') is not by way of rehearing,[3] but involves a review of the decision arrived at and the decision making process associated therewith.
  1. [9]
    The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.[4] The issue for determination is whether the decisions to suspend the Appellant without normal remuneration was fair and reasonable. Findings which are reasonably open to the decision maker are not expected to be disturbed on appeal.

What decisions can the Industrial Commissioner make?

  1. [10]
    In deciding this appeal, s 562C of the IR Act provides that the Industrial Commissioner may:
  1. (a)
    confirm the decision appealed against; or
  1. (b)
    set the decision aside and substitute another decision; or
  1. (c)
    set the decision aside and return the issue to the decision maker with a copy of the decision on appeal and any directions considered appropriate.

Relevant legislative provision and Directives

  1. [11]
    Section 137 of the PS Act provides for the suspension of a public service employee:

137Suspension

  1. (1)
     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
  1. (b)
    for a public service employee—the employee is liable to discipline under a disciplinary law.
  1. (2)
    The notice must state—
  1. (a)
    when the suspension starts and ends; and
  1. (b)
    whether the person is entitled to remuneration for the period of the suspension; and
  1. (c)
    the effect that alternative employment may, under subsection (5), have on any entitlement to remuneration.
  1. (3)
    However, before suspending the person, the chief executive must consider all reasonable alternatives, including alternative duties, a temporary transfer or another alternative working arrangement, that are available to the person.
  1. (4)
    A public service employee is entitled to normal remuneration during a suspension, unless—
  1. (a)
    the person is suspended under subsection (1)(b); and
  1. (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. (8)
    The chief executive may cancel the suspension at any time.
  1. (9)
    In suspending a public service employee under this section, the chief executive must comply with—
  1. (a)
    the principles of natural justice; and
  1. (b)
    this Act; and
  1. (c)
    the directive made under section 137A.
  1. (10)
    However, natural justice is not required if the person is entitled to normal remuneration during the suspension.
  1. [12]
    Clause 6 of Directive 16/20 Suspension ('the Directive') relevantly outlines the factors that must be taken into consideration in considering suspending a public service employee without remuneration:

6. Suspension without remuneration

6.1  Section 137(4) of the PS Act provides that the chief executive may decide that normal remuneration is not appropriate during a period of suspension where the employee is a public service employee liable to discipline.

6.2  A decision that normal remuneration is not appropriate during the suspension will usually occur after a period of suspension with remuneration but may be made from the start of the suspension.

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

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

6.4  A decision to suspend an employee without remuneration is subject to the principles of natural justice. 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.
  1. (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.
  1. (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.
  1. (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.

6.5 A public service employee may appeal a decision to suspend without normal remuneration. An appeal is made to the Queensland Industrial Relations Commission (QIRC) and further information can be found in their Appeals Guide.

6.6 An employee must be reimbursed for remuneration the employee does not receive during the employee's suspension if a decision on discipline has been made that does not result in termination of their employment.

6.7 The amount to be reimbursed is the employee's normal remuneration at the date of suspension without pay for the period the employee was suspended:

  1. (a)
    taking into account any increase due to certified agreements or rulings made in State Wage Cases, but
  1. (b)
    less any amounts of paid leave taken by the employee during a period of suspension.

6.8  An employee who ceases employment prior to a decision on discipline being made is not entitled to reimbursement.

6.9  Any amount earned by the employee from alternative employment the employee engaged in during the period of suspension must be deducted from the amount repaid to the employee under 6.7 above, unless:

  1. (a)
    the employee was engaged in the employment at the time of the suspension, and
  1. (b)
    the employee, in engaging in the employment, was not contravening:
  1. (i)
    the PS Act, or
  1. (ii)
    a standard of conduct applying to the employee under an approved code of conduct or standard of practice under the Public Sector Ethics Act 1994.

6.10  If the employee was not available to work during the period of suspension for reasons other than being suspended (for example, due to being detained in a corrective services facility), then the amount repaid to the employee must be less the total number of days that the employee was not available to work during the period of suspension.

  1. [13]
    On 11 September 2021, pursuant to s 51A of the Hospital and Health Boards Act 2011 (Qld) ('HHB Act'), the Chief Executive of the Respondent issued Directive 12/21.
  1. [14]
    Clause 1 of Directive 12/21 provides that compliance with Directive 12/21 is mandatory. Clause 4 of Directive 12/21 provides that Directive 12/21 applies to all health service employees and prospective employees employed under the HHB Act.
  1. [15]
    Clause 8.1 of Directive 12/21 provides:

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

a.  have received at least the first dose of a COVID-19 vaccine by 30 September 2021; and

b.  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:

a.  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.

b.  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 HED.

  1. [16]
    Clause 10.2 of Directive 12/21 provides an exemption application will be considered where the employee has a recognised medical contraindication, the employee has a genuinely held religious belief or where another exceptional circumstance exists.

Grounds of Appeal

  1. [17]
    The reasons for appeal for bother matters PSA/2022/530 and PSA/2022/575 are largely similar and can be summarised as follow, that:
  1. (a)
    questions and clarification sought by the Appellant have not been answered, including her request for paperwork to be signed and returned by the Respondent;
  1. (b)
    to suspend the Appellant without normal remuneration would directly cause mental and financial stress and hardship;
  1. (c)
    the Appellant applied for and was denied special discretionary leave on two occasions, however, is aware that a colleague, who has not had a COVID-19 vaccination and does not have an exemption, was approved. The Appellant contends that this is discrimination and is not fair and equitable; and
  1. (d)
    public resources have not been managed effectively, efficiently and economically and is contrary to public interest.

Submissions

  1. [18]
    A Directions Order was issued calling for submissions from both parties following receipt of the appeal notices. The submissions are summarised below.

Appellant's submissions

  1. [19]
    The Appellant provided extensive submissions regarding matters that do not appear to relate to the decisions the subject to the appeals. These submissions primarily relate to:
  1. (a)
    witnessing of misconduct and corrupt behaviours within the Respondent;
  1. (b)
    failure of government officials in investigating various misconduct and corrupt conduct unrelated to work; and
  1. (c)
    being the target of discrimination and bullying for witnessing misconduct and cover ups in the animal racing industry.
  1. [20]
    To the extent the Appellant's submissions relate to the decisions regarding her suspension without normal remuneration, the Appellant submits, in summary, that:
  1. (a)
    the Appellant does not want to be made the subject of targeting, harassment, intimidation, discrimination and bullying for choosing to go through this process, for standing up for her human rights, bodily autonomy and speaking her truth;
  1. (b)
    the Appellant questions whether the information and orders provided by government officials are 'correct, true, honest, and backed by true science'; and
  1. (c)
    the Appellant feels targeted as she has been denied special discretionary leave and working from home arrangements.

Respondent's submissions

  1. [21]
    In response to the Appellant's submissions, the Respondent submits, in summary, that:
  1. (a)
    to the extent that the Appellant seeks to challenge the lawfulness of Directive 12/21, that is not a decision against which an appeal can be made;
  1. (b)
    to the extent that the appeal questions the safety and efficacy of the COVID-19 vaccines, COVID-19 vaccination is recommended by The World Health Organisation, The Australian Technical Advisory Group on Immunisation, the Therapeutic Goods Administration, Australia Health Department and the Queensland Health Department;
  1. (c)
    the Appellant's concerns were considered by Ms Nasato when the decisions were made on 29 March 2022 and 28 April 2022; and
  1. (d)
    Ms Nasato based her decisions having regard to the nature of the disciplinary matter and the public interest noting the length of time since Directive 12/21 came into effect and the significant risk to patients and colleagues from the Appellant not being vaccinated.
  1. [22]
    The Respondent further submits that the Appellant did not apply for an exemption to the vaccination requirements of Directive 12/21.

Appellant's submissions in reply

  1. [23]
    In the Appellant's submissions in reply, the Appellant reiterates much of her submissions already made. The Appellant further submits that:
  1. (a)
    her colleague agrees that she was discriminated by a manager regarding the process leading up to the Appellant's suspension; and
  1. (b)
    it appears that the only way to have a scientific debate is by forcing court action and personally accepting the expenses and risks involved.

Consideration

Should an extension of time be granted for the filing of PSA/2022/530?

  1. [24]
    The jurisdictional issue must first be determined as to whether an extension of time should be granted for the Appellant to file a public service appeal with respect to the decision the subject of PSA/2022/530 as it was filed outside of the 21 day time limit.
  1. [25]
    Section 564 of the IR Act provides for the time limit for appeal:

564Time limit for appeal

  1. (1)
    An appeal against a decision to an industrial tribunal must be started, as required under the rules, within the appeal period.
  1. (2)
    However, on an application made during or after the appeal period, the industrial tribunal may allow an appeal to be started within a longer period.
  1. (3)
     In this section—

appeal period, for an appeal against a decision to an industrial tribunal, means the period within 21 days after—

  1. (a)
    if the decision is given at a hearing—the announcement of the decision at the hearing; or
  1. (b)
    if the decision is given through the registrar—the release of the decision; or
  1. (c)
    if the decision is a promotion decision—the decision is publicly notified under the Public Service Act 2008; or
  1. (d)
    if, under another Act, the decision is given in another way—the decision is given in the other way.
  1. [26]
    The Appellant bears the onus of establishing that the justice of the case requires an extension of time.[5] The statutory provision was considered in A1 Rubber (Aust) Pty Ltd v Chapman (Office of Industrial Relations) ('AI Rubber'),[6] which stated:

On an application to extend time, the approach of this Court was described by President Hall in the Neophytos Foundadjis v Collin Bailey [2007] ICQ 10 in the following way:

"This Court has traditionally adhered to the view that s. 346 of the Industrial Relations Act 1999 represents a legislative assessment that in the ordinary category of cases, justice will best be served by adhering to a 21 day limitation period, though on occasion the limitation may defeat a perfectly good case and that the discretion to extend time should be exercised only where the applicant for an extension of time discharges a positive burden of demonstrating that the justice of the case requires the indulgence of a further period."[7]

  1. [27]
    The matters to be considered when exercising the discretion were outlined in A1 Rubber, where President Martin J stated:

In order to be successful, an applicant must ordinarily discharge the burden in three ways: first, the applicant must demonstrate that the justice of the case requires the indulgence sought; secondly, the applicant must demonstrate that the case sought to be appealed has prospects of success; thirdly, there must be an explanation of the delay between the expiry of the time period and the time at which the application was filed…[8]

Explanation of delay

  1. [28]
    The decision the subject of PSA/2022/530 was made on 29 March 2022 and sent to the Appellant on 30 March 2022. The appeal was filed on 26 April 2022 and was therefore filed seven days beyond the 21 day time limitation period.
  1. [29]
    The Appellant submits that the 21 day time limitation was only brought to the Appellant's attention when a directions order dated 29 April 2022 were issued. The Appellant submits that she 'believed that the final date to appeal was the 26 April 2022', however, does not outline how she came to such a conclusion.
  1. [30]
    The Appellant submits that she lodged the appeal after reading that it was an option in the decision, referring to the following paragraph:

If you believe the decision to suspend you without normal remuneration is unfair and unreasonable, you may lodge an appeal under Chapter 7 of the Act within 21 calendar days from your receipt of this decision to the Queensland Industrial Relations Commission (QIRC).

[emphasis added]

  1. [31]
    On the basis that the Appellant admits that she read the above paragraph, prompting her to file an appeal, it is difficult to understand how the Appellant was not also aware of the 21 day time limitation period which is outlined clearly within the same paragraph.
  1. [32]
    The parliament has legislated a 21 day time period for an appeal to be filed and the existence of compelling reasons for any delay are required to extend this timeframe. Such reasons are not evident in this matter.

Prospects of success

  1. [33]
    A consideration of the Appellant's prospects of success is necessary in determining whether an extension of time should be granted.
  1. [34]
    The Queensland Court of Appeal considered this in Chapman v State of Queensland,[9] stating:

…In determining whether it is proper to grant the extension, it is appropriate to consider the merits of the substantive application… An extension of time will not be granted if the court considers the appeal to be plainly hopeless…[10]

  1. [35]
    The 21 day time limit should not easily be dispensed with, and where it appears that the Appellant has no, or very limited, prospects of success, the Commission would not normally grant an extension of time.[11] Having considered the material before me, I am not of the view that this appeal has good prospects of success.
  1. [36]
    This Commission has considered a substantial number of public service appeals against decisions to suspend employees without normal remuneration in circumstances where the employee has not adhered the relevant policy mandating the receipt of COVID-19 vaccinations. The circumstances in many of these previous decisions are almost identical to those of this appeal and they have determined that the decision to suspend the employee without normal remuneration is fair and reasonable in the circumstances.[12]
  1. [37]
    On the basis that the facts of this matter cannot be distinguished from the large number of similar matters referred to in [36], I consider this appeal would have limited prospects of success.

Justice of the case

  1. [38]
    The prejudice to the Respondent of allowing the appeal is that it will not be able to rely upon the statutory time limit, despite clearly advising the Appellant of her appeal rights and the timeframe within which an appeal should be filed in the decision.
  1. [39]
    The consequence of not extending the time period for the Appellant is that the appeal will not be determined. The prejudice to the Appellant will be that the appeal against the decision dated 29 March 2022 will not be subject to independent consideration, however, as noted above, I consider the prospects of success in this matter to be limited.
  1. [40]
    In these circumstances, I am not of the view that the justice of the case requires an extension of the statutory timeframe.

Was the decision the subject of PSA/2022/575 fair and reasonable?

  1. [41]
    Consideration of an appeal of this kind requires a review of the decision to suspend the Appellant without normal remuneration to determine if the decision was fair and reasonable in the circumstances. The decision subject to matter PSA/2022/575 is the decision of 28 April 2022 to extend the Appellant's suspension without normal remuneration.
  1. [42]
    I have no doubt that the decision to extend the Appellant's suspension without remuneration has had significant personal consequences for the Appellant's personal circumstances. This is unfortunate, however it is a consequence of the Appellant's own making. The decision maker is not obliged to consider the particular circumstances of each employee when determining whether to impose suspension without remuneration.
  1. [43]
    The Appellant submits that she would be willing to consider the COVID-19 vaccination 'if the paperwork provided would be signed and returned'. The nature of the paperwork referred to is unclear, however it is not relevant to the determination of this appeal given that Directive 12/21 places no obligation on the Respondent to provide the Appellant with particular paperwork.
  1. [44]
    The Appellant contends that a work colleague has been provided with special discretionary leave in lieu of receiving the COVID-19 vaccination. The particular arrangements for other employees are not considered as part of this appeal, particularly in circumstances in which evidence of individual vaccination histories, including exemptions, along with leave arrangements is not before the Commission.
  1. [45]
    The Appellant submits in her appeal notice that she has witnessed poor management of public resources through 'not enough PPE, lack of infusion pumps, unrepaired doors of theatres, daily properly and waste of theatre time due to poor communication & variables'. These submissions are not relevant to the consideration of the decision under appeal.
  1. [46]
    Section 137(4) of the PS Act provides that a chief executive or delegate may decide that normal remuneration is not appropriate during a period of suspension having regard to the nature of the discipline to which the delegate believes the person is liable. Clause 6.3 of the Directive provides that the decision maker must consider the nature of the disciplinary matter; the factors not within the control of the Health Service that are preventing the timely conclusion of the discipline process; and the public interest of the employee remaining on suspension with remuneration.
  1. [47]
    The Appellant does not dispute the contention that she has not complied with the requirement of Directive 12/21 to receive COVID-19 vaccinations. The decision states:

I note it is alleged that you have failed to follow a reasonable and lawful direction to comply with the vaccination requirements set out in the Health Employment Directive 12/21 Employee COVID-19 vaccination requirements (the Directive). The decision to direct you to comply with the vaccination requirements set out in the Directive was made considering the significant risk to the health and safety of healthcare workers, support staff, their families, and the patients under our care. The failure by you to follow the terms of the Directive, in conjunction with your 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. [48]
    It was open to Ms Nasato to find that the Appellant was liable for discipline given that, at the time of the decision to extend the period of suspension without normal remuneration, the Appellant was the subject of a disciplinary show cause process. The allegation was that the Appellant had failed to follow a lawful and reasonable direction to adhere to Directive 12/21 over an extensive period of time. It was also open to Ms Nasato to determine that the nature of the disciplinary matter is serious in nature.
  1. [49]
    The decision demonstrates Ms Nasato's consideration of the public interest, stating:

Further, I have a statutory obligation to manage public resources efficiently, responsibly and in a fully accountable way. I have considered the timeframe for you to comply with the Directive, specifically the Directive came into effect on 11 September 2021 and the Health Service made its employees aware of the requirements of the Directive and provided sufficient time for employees to comply with the Directive. I do not consider it is an appropriate use of public monies for you to be suspended with remuneration.

  1. [50]
    I am satisfied that Ms Nasato considered the Appellant's human rights, acknowledging the potential limitation on the Appellant's human rights and stating:

However, in my view these limits are reasonable and are demonstrably justifiable in the circumstances presented by your case. This is because it is demonstrably justifiable in a free and democratic society based on human dignity, equality and freedom to ensure employees, patients and others are protected from the possibility of contracting COVID-19 when receiving health services, generally in a physically vulnerable state, and for Metro North Health, as part of Queensland Health, to maintain a proper and efficient Health Service in responding to the uncertainties presented during a pandemic.

  1. [51]
    In the first decision to suspend the Appellant without remuneration, Ms Nasato determined that no reasonable alternatives to suspension from duty, including alternative duties, a temporary transfer or another alternative working arrangement could be identified. Ms Nasato determined that no working from home arrangements could be accommodated as it was not viable or practical for an Anaesthetic Technician to work from a home-based setting given the role requirements to provide care to patients in hospital. There is no evidence that these circumstances changed prior to the making of the decision to extend the suspension and hence was a reasonable determination given the particular requirements of the Appellant's employment.
  1. [52]
    I am satisfied that the decision maker complied with the requirements of both the PS Act and the Directive as demonstrated in the decision.
  1. [53]
    The relevant principles in considering whether a decision is 'unreasonable' were outlined by Ryan J in Gilmour v Waddell & Ors:[13] 

The focus of a review of the reasonableness, or unreasonableness, of a decision is on whether the decision is so unreasonable that it lacks intelligent justification in all of the relevant circumstances.

The legal standard of unreasonableness is to be considered by reference to the subject matter, scope and purpose of the statute conferring the power.

A court considering an argument that a decision is unreasonable is not undertaking a merits review. If a decision may be reasonably justified, then it is not an unreasonable decision, even if a reviewing court might disagree with it.[14]

  1. [54]
    Applying the principles outlined above, I do not consider that the decision to extend the Appellant's suspension without normal remuneration lacks justification in the circumstances. Based on the information before me, I am satisfied that the decision to extend the Appellant's suspension without normal remuneration was fair and reasonable.

Orders

  1. [55]
    I make the following orders:
  1. That matter PSA/2022/530 is dismissed for want of jurisdiction.
  1. That the decision appealed against, the subject of matter PSA/2022/575, is confirmed pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld).

Footnotes

[1] Industrial Relations Act 2016 (Qld) s 562B(2) ('IR Act').

[2] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261.

[3] Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5 as to the former, equivalent provisions in s 201 of the PS Act.

[4] IR Act s 562B(3).

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

[6] [2019] ICQ 16.

[7] Ibid 2.

[8] Ibid.

[9] [2003] QCA 172.

[10] Ibid [3].

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

[12] See e.g., Rudd v State of Queensland (Queensland Health) [2022] QIRC 323; Blackie v State of Queensland (Queensland Police Service) [2022] QIRC 085; Casson v State of Queensland (Queensland Police Service) [2022] QIRC 113; Rae v State of Queensland (Queensland Health) [2022] QIRC 160.

[13] [2019] QSC 170.

[14] Ibid [207]-[209].

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Editorial Notes

  • Published Case Name:

    Stafford v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Stafford v State of Queensland (Queensland Health)

  • MNC:

    [2022] QIRC 344

  • Court:

    QIRC

  • Judge(s):

    Member Power IC

  • Date:

    01 Sep 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
A1 Rubber (Aust) Pty ltd v Chapman (Office of Industrial Relations) [2019] ICQ 16
2 citations
Jump To
Cite 1 - [2019] ICQ 16
Cite 2 - [2019] ICQ 16
Blackie v State of Queensland (Queensland Police Service) [2022] QIRC 85
2 citations
Jump To
Cite 1 - [2022] QIRC 85
Cite 2 - [2022] QIRC 85
Brandy v Human Rights & Equal Opportunity Commission (1995) 183 CLR 245
2 citations
Jump To
Cite 1 - (1995) 183 CLR 245
Cite 2 - (1995) 183 CLR 245
Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10
2 citations
Jump To
Cite 1 - [1995] HCA 10
Cite 2 - [1995] HCA 10
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
2 citations
Jump To
Cite 1 - (1996) 186 CLR 541
Cite 2 - (1996) 186 CLR 541
Casson v State of Queensland (Queensland Police Service) [2022] QIRC 113
2 citations
Jump To
Cite 1 - [2022] QIRC 113
Cite 2 - [2022] QIRC 113
Chapman v State of Queensland [2003] QCA 172
3 citations
Jump To
Cite 1 - [2003] QCA 172
Cite 2 - [2003] QCA 172
Cite 3 - [2003] QCA 172
Foundadjis v Bailey [2007] ICQ 10
1 citation
Jump To
Cite 1 - [2007] ICQ 10
Gilmour v Waddell [2019] QSC 170
3 citations
Jump To
Cite 1 - [2019] QSC 170
Cite 2 - [2019] QSC 170
Cite 3 - [2019] QSC 170
Goodall v State of Queensland [2018] QSC 319
1 citation
Jump To
Cite 1 - [2018] QSC 319
Piggott v State of Queensland [2010] ICQ 35
2 citations
Jump To
Cite 1 - [2010] ICQ 35
Cite 2 - [2010] ICQ 35
Rae v State of Queensland (Queensland Health) [2022] QIRC 160
2 citations
Jump To
Cite 1 - [2022] QIRC 160
Cite 2 - [2022] QIRC 160
Rudd v State of Queensland (Queensland Health) [2022] QIRC 323
2 citations
Jump To
Cite 1 - [2022] QIRC 323
Cite 2 - [2022] QIRC 323

Cases Citing

Case NameFull CitationFrequency
Keenan v State of Queensland (Queensland Health) [2023] QIRC 1712 citations
1

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