Sarzynska v State of Queensland (Queensland Health)
[2022] QIRC 346
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- Sarzynska v State of Queensland (Queensland Health)[2022] QIRC 346
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Sarzynska v State of Queensland (Queensland Health)[2022] QIRC 346
Sarzynska v State of Queensland (Queensland Health)[2022] QIRC 346
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Sarzynska v State of Queensland (Queensland Health) [2022] QIRC 346 |
PARTIES: | Sarzynska, Zofia (Appellant) v State of Queensland (Queensland Health) (Respondent) |
CASE NO.: | PSA/2022/644 |
PROCEEDING: | Public Service Appeal – Appeal against a decision about suspension without pay – Application for longer period to start appeal |
DELIVERED ON: | 7 September 2022 |
HEARING DATE: MEMBER: | On the papers Merrell DP |
DATES OF WRITTEN SUBMISSIONS: | Appellant's written submissions filed on 1 August 2022 and Respondent's written submissions filed on 30 August 2022 |
ORDER: | The orders in paragraph [40] of these reasons for decision. |
CATCHWORDS: | PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL – Appellant employed by the State of Queensland as a Dental Assistant through Queensland Health in the Metro North Hospital and Health Service – cl 8 of the Health Employment Directive No. 12/21 – Employee COVID‑19 vaccination requirements required existing employees, who are employed to work in a hospital or other facility where clinical care or support is provided, to have received at least a first dose of a COVID-19 vaccine by 30 September 2021 and a second dose of a COVID‑19 vaccine by 31 October 2021 unless exempted – Appellant applied for exemption – exemption denied – Appellant failed to comply with the Direction – Appellant afforded the opportunity to show cause why she should not be suspended without pay – Appellant provided response – Appellant advised of decision to suspend her without pay – Appellant appealed against decision to suspend her without pay – Appellant started appeal two days outside of the 21 day limitation period – 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 in the Appellant's favour – application granted |
LEGISLATION: | Directive: 16/20 – Suspension directive Health Employment Directive No. 12/21 – Employee COVID‑19 vaccination requirements, cl 7, cl 8 and cl 10 Industrial Relations Act 2016, s 564 Public Service Act 2008, s 137 |
CASES: | Forsyth-Stewart v State of Queensland (Department of Education) [2021] QIRC 395 |
Reasons for Decision
Introduction
- [1]Ms Zofia Sarzynska is employed by the State of Queensland through Queensland Health ('the Department') as a Dental Assistant in Oral Health Services which is part of the Metro North Hospital and Health Service ('the Health Service').
- [2]By virtue of the combined effect of cls 7 and 8 of the Health Employment Directive No. 12/21 - Employee COVID-19 vaccination requirements ('the Directive'), employees who are employed to work in a hospital or other facility, where clinical care or support is provided, had to provide to their line manager, or upload into the designated system, evidence that they had received the first dose of a COVID‑19 vaccine by 30 September 2021 and that they had received the second dose of a COVID‑19 vaccine by 31 October 2021.
- [3]By cl 10 of the Directive, an employee is not required to be so vaccinated if they are granted an exemption from vaccination.
- [4]On 22 September 2021, Ms Sarzynska applied for an exemption. By written decision dated 10 February 2022, Mr Alister Whitta, Acting Chief Finance and Corporate Officer of the Health Service, advised Ms Sarzynska that she was not granted the exemption she sought ('Mr Whitta's decision').
- [5]By email dated 25 February 2022, Ms Sarzynska sought an internal review of Mr Whitta's decision.
- [6]By written decision dated 21 March 2022, Adjunct Professor Jackie Hanson, the Chief Executive of the Health Service, confirmed Mr Whitta's decision.
- [7]By letter dated 28 April 2022, and sent to Ms Sarzynska by email on the same day, Ms Glynis Schultz, Executive Director, Community and Oral Health:
- invited Ms Sarzynska to respond to the allegation that she (Ms Sarzynska) failed to follow a reasonable and lawful direction to comply with the vaccination requirements set out in the Directive;
- suspended Ms Sarzynska from duty on full remuneration until 17 May 2022; and
- invited Ms Sarzynska to show cause why she should not be suspended from duty without remuneration.
- [8]By email dated 5 May 2022, Ms Sarzynska responded as to why she should not be suspended without remuneration.
- [9]By letter dated 7 June 2022, and actually sent to Ms Sarzynska's personal email address on 8 June 2022, Ms Schultz made the decision to suspend Ms Sarzynska without remuneration from 7 June 2012 until 7 September 2022 ('the decision').
- [10]By appeal notice filed on 1 July 2022, Ms Sarzynska, pursuant to ch 7, pt 1 of the Public Service Act 2008 ('the PS Act'), appealed against the decision. Pursuant to the combined effect of s 564(1) and (3) of the Industrial Relations Act 2016 ('the IR Act'), Ms Sarzynska had to start her appeal on or before 29 June 2022. The consequence is that Ms Sarzynska's appeal is two days out of time.
- [11]In her appeal notice, Ms Sarzynska acknowledged that she did not start her appeal within 21 days after she was given the decision, and she applied for a longer period of time in which to start her appeal.
- [12]This is my decision about Ms Sarzynska's application to start her appeal within a longer period.
- [13]For the reasons that follow, I will grant Ms Sarzynska's application to allow her to start her appeal within a longer period.
The relevant provisions of the Industrial Relations Act 2016
- [14]Section 564(2) of the IR Act relevantly provides that on an application made during or after the prescribed appeal period, the Commission may allow an appeal to be started within a longer period.
- [15]
- [16]I will consider Ms Sarzynska's application for a longer period in which to start her appeal by adopting that same approach.
Length of the delay
- [17]The length of the delay is two days. In my view, this is not a significant delay.
Ms Sarzynska's explanation for the delay
- [18]Ms Sarzynska submitted that:
- the decision was sent only to her work email on 7 June 2022;
- on 8 June 2022, her daughter underwent surgery, and she became the primary carer for her daughter's recovery which demanded a large amount of her focus and effort;
- on 8 June 2022, the Health Service sent her an email indicating that it had received an undeliverable notification for her personal email account, to which she did not respond as that was during an extremely difficult period for her looking after her daughter and that she was not mentally prepared or resourced to comprehend the appeal process in relation to the decision;
- on 29 June 2022, she focused on the decision;
- on 30 June 2022, she contacted the Industrial Registry of the Commission, and was advised that the limitation period had expired and to apply for an extension of time; and
- as she had been suspended from work for some time, her access to work emails from her personal devices was not available while she cared for her daughter and she was frequently 'locked out' during her suspension which required her to attend work to re-authorise her personal device login.
- [19]The Department relevantly submitted that:
- the decision was sent to Ms Sarzynska's personal email address on 8 June 2022;
- Ms Sarzynska had frequently engaged in correspondence with the Health Service throughout her disciplinary process and had previously received correspondence which contained strict timelines regarding her responses;
- the timeline for Ms Sarzynska to appeal against the decision was communicated to her in an appropriate way; and
- Ms Sarzynska has not provided enough evidence, to amount to extraordinary personal circumstances, to explain her delay and provide adequate justification to warrant an extension of time, including that no evidence of the precise nature of her daughter's surgery or the timeframe for her daughter to recover, was provided for her to adequately explain why she was not mentally prepared to seek assistance or start the appeal process within the limitation period.
- [20]I am persuaded that Ms Sarzynska has provided an acceptable explanation for the delay in starting her appeal.
- [21]Ms Sarzynska submits that, on 8 June 2022, her daughter underwent surgery. While Ms Sarzynska does not give any particulars of the surgery or any detailed or precise information about the extent to which she was required to spend her time focusing upon her daughter's recovery, it seems to me that, accepting her submissions at face value, it is entirely plausible that her time and concentration would have been directed towards her daughter's welfare between 8 June 2022 and 29 June 2022.
- [22]For these reasons, I am persuaded that Ms Sarzynska has provided an acceptable explanation for her delay.
Prejudice
- [23]Neither party made any submissions about this issue. It seems to me that a delay of two days, given the subject matter of the appeal, will not cause any material prejudiced to the Department.
Conduct of the Department
- [24]Neither party made any submissions about this issue, although the Department did submit that in the decision, Ms Schultz clearly set out the limitation period for Ms Sarzynska to appeal the decision to this Commission.
- [25]In this regard then, there is no conduct of the Department that supports Ms Sarzynska's application to be given a longer period to start her appeal.
Merits of the proposed appeal
- [26]Ms Sarzynska, in making her submissions, was clearly aware that the merits of her appeal would be a material consideration about whether or not she would be allowed a longer period of time to start her appeal. This is because she referred to that subject matter. In this regard, Ms Sarzynska submitted that her appeal has merit due to '… unique relevant personal circumstances not within my control including personal contraindicating health information.'
- [27]The Department submits that Ms Sarzynska has no or very limited prospects of success in that she has not demonstrated any reason why the decision was not fair and reasonable. The Department further submits that it acted in accordance with Directive: 16/20 - Suspension directive, in determining to suspend Ms Sarzynska without remuneration, in that she (Ms Sarzynska) was afforded natural justice in relation to the decision and appropriate consideration was provided as to whether or not she would be suspended without remuneration.
- [28]As referred to earlier in these reasons, Ms Sarzynska applied for an exemption from compliance with the Directive, but that exemption was not granted. There is no dispute that, at all material times, Ms Sarzynska did not comply with the Directive in respect of the requirement that she be vaccinated against COVID-19.
- [29]However, in her response dated 5 May 2022, Ms Sarzynska submitted that she had the intention to be vaccinated but received advice against being vaccinated at that time due to her infection with COVID-19 in April 2022. This issue may be relevant to the determination of her appeal.
- [30]While Ms Sarzynska's prospects of success in the appeal may not be high, they are not non‑existent or so low as to determinatively weigh against her in allowing a longer period of time to start her appeal.
Considerations of fairness as between the appellant and other persons in a like position
- [31]Neither party addressed this issue.
Ms Sarzynska should be allowed a longer period to start her appeal
- [32]In exercising discretion under s 564(2) of the IR Act, the fundamental objective is to do justice as between the parties.
- [33]In my view, this is a case where justice requires that Ms Sarzynska be given a longer period of time in which to start her appeal. There are three reasons for this.
- [34]First, a delay of two days is not a significant delay. The Department will suffer no real prejudice by such a delay.
- [35]Secondly, Ms Sarzynska has given an acceptable explanation for her delay.
- [36]Thirdly, Ms Sarzynska's prospects of success on appeal are not non-existent or not so low as to point against allowing her a longer period of time to start her appeal
- [37]These three matters outweigh the other consideration of there being no relevant conduct on the part of the Department against granting the extension.
- [38]For these reasons, my view is that justice does compel an indulgence being granted to Ms Sarzynska to allow her to start her appeal within a longer period.
Conclusion
- [39]For the reasons I have given, I will allow Ms Sarzynska a longer period to start her appeal.
Orders
- [40]I make the following orders:
- Pursuant to s 564(2) of the Industrial Relations Act 2016, I allow the Appellant to start her appeal on 1 July 2022.
- That the Appellant file in the Industrial Registry, and serve on the Respondent, written submissions of no more than five (5) pages in length, type-written, line and a-half spaced, 12‑point font size and with numbered paragraphs and numbered pages plus any relevant attachments, in respect of her appeal filed on 1 July 2022, by 4.00pm on Wednesday, 21 September 2022 ('the Appellant's submissions').
- That the Respondent file in the Industrial Registry, and serve on the Appellant, written submissions of no more than five (5) pages in length, type-written, line and a-half spaced, 12‑point font size and with numbered paragraphs and numbered pages plus any relevant attachments, in response to the Appellant's submissions, by 4.00pm on Wednesday, 5 October 2022.
- That unless any party files an application by 4.00pm on Thursday, 6 October 2022, for leave to make oral submissions or further written submissions, the matter will be decided on the papers.