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  4. Taylor v State of Queensland (Queensland Health) - [2022] QIRC 383

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Taylor v State of Queensland (Queensland Health)[2022] QIRC 383

Taylor v State of Queensland (Queensland Health)[2022] QIRC 383

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Taylor v State of Queensland (Queensland Health) [2022] QIRC 383

PARTIES: 

Taylor, Colleen

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO.:

PSA/2022/692

PROCEEDING:

Public Service Appeal – appeal against a suspension without pay decision

DELIVERED ON:

6 October 2022

MEMBER:

Power IC

HEARD AT:

On the papers

ORDER:

Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed.

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – Public Service Appeal – appeal against suspension without pay decision – fair and reasonable.

LEGISLATION:

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

Human Rights Act 2019 (Qld)

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

Public Service Act 2008 (Qld), ss 137, 187, 194 and 195

CASES:

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

Gilmour v Waddell & Ors [2019] QSC 170

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

Reasons for Decision

Introduction

  1. [1]
    Mrs Colleen Taylor ('the Appellant') is employed by the State of Queensland (Queensland Health) ('the Respondent') as an AO3 Administration Officer, Ambulatory Care, Caloundra Health Service at Caloundra Hospital within the Sunshine Coast Hospital and Health Service ('SCHHS').
  1. [2]
    On 11 September 2021, the Chief Executive of the Respondent issued the Health Employment Directive 12/21 regarding employee COVID-19 vaccination requirements ('Directive 12/21') pursuant to s 51A of the Hospital and Health Boards Act 2011 (Qld) ('HHB Act').
  1. [3]
    Clause 1 of Directive 12/21 provides that compliance is mandatory. Clause 4 of Directive 12/21 provides that it applies to all health service employees and prospective employees employed under the HHB Act.
  1. [4]
    Clause 8.1 of Directive 12/21 provides that existing employees must have received at least the first dose of a COVID-19 vaccine by 30 September 2021, the second dose of a COVID-19 vaccine by 31 October 2021 and provide to their line manager or upload into the designated system evidence of vaccination by no later than seven days after receiving the vaccine.
  1. [5]
    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.
  1. [6]
    By letter dated 6 July 2022, Ms Tanya Grant, Acting Chief Operating Officer, SCHHS, invited the Appellant to show cause regarding an allegation that she failed to comply with the requirements of Directive 12/21 to receive the prescribed number of doses of a COVID-19 vaccine and to provide evidence of having received the prescribed number of doses of a COVID-19 vaccine. The letter further informed the Appellant that she was suspended from duty on normal remuneration and that, given the nature and seriousness of the allegation, consideration was being given to suspend the Appellant without normal remuneration. The Appellant was provided with seven days to respond as to why inter alia she should not be suspended without normal remuneration
  1. [7]
    On 13 July 2022, the Appellant provided a response to the letter dated 6 July 2022 to the Respondent.
  1. [8]
    By letter dated 25 July 2022, Ms Joanne Shaw, Chief Operating Officer, SCHHS, informed the Appellant of the decision to suspend her from duty without remuneration from the date of the letter until 10 October 2022, at which time her suspension will be considered afresh ('the decision').
  1. [9]
    On 28 July 2022, the Appellant's agent, QNurses First Inc., filed an appeal in the Commission, appealing against the decision, pursuant to s 194 of the Public Service Act 2008 (Qld) ('the PS Act').
  1. [10]
    I firstly note that on 5 and 8 August 2022, QNurses First Inc. requested for the matter to be placed into abeyance pending determination of another public service appeal. Parties were subsequently informed that the matter will not be placed into abeyance and will proceed on the basis that the decision the subject of the other public service appeal concerned different issues to the decision appealed against.

Appeal principles

  1. [11]
    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. [12]
    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 decision 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. [13]
    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 Directive

  1. [14]
    Section 137 of the PS Act provides for the suspension of a public service employee:

137 Suspension

  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. [15]
    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:
  1. 6.
    Suspension without remuneration
  1. 6.1
    Section 137(4) of the PS Act provides that the chief executive may decide that normal remuneration is not appropriate during a period of suspension where the employee is a public service employee liable to discipline.
  1. 6.2
    A decision that normal remuneration is not appropriate during the suspension will usually occur after a period of suspension with remuneration but may be made from the start of the suspension.
  1. 6.3
    In deciding that normal remuneration is not appropriate, the factors the chief executive is to consider include:
  1. (a)
    the nature of the discipline matter
  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.
  1. 6.4
    A decision to suspend an employee without remuneration is subject to the principles of natural justice. Natural justice is the right to be given a fair hearing and the opportunity to present one's case, the right to have a decision made by an unbiased or disinterested decision maker and the right to have that decision based on logically probative evidence1. As part of the suspension process:
  1. (a)
    The employee must be given the opportunity to respond to the proposed suspension without remuneration prior to the decision being made by the delegate. This can occur through a 'show cause' process at the time of notification of the initial suspension on normal remuneration, or at any subsequent stage during the suspension.
  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.
  1. 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.
  1. 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.
  1. 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.
  1. 6.8
    An employee who ceases employment prior to a decision on discipline being made is not entitled to reimbursement.
  1. 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.
  1. 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.

Grounds of Appeal

  1. [16]
    In the appeal notice, extensive submissions were made regarding matters relating to the lawfulness of Directive 12/21 and an 'exemption declinature decision'. To the extent those submissions relate to the decision, the Appellant appeals the decision on the basis that the decision:
  1. (a)
    is incompatible with the Appellant's human rights and amounts to direct and indirect discrimination on the basis of political activity and beliefs and trade union activity;
  1. (b)
    amounts to adverse action; and
  1. (c)
    arose from the exclusion of a review of the 'exemption declinature decision'.

Appellant's submissions

  1. [17]
    The Appellant's submissions, filed by QNurses First Inc., do not outline any submissions in support of the appeal. Instead, submissions were made requesting, again, for the matter to be placed into abeyance pending determination of another public service appeal.

Respondent's submissions

  1. [18]
    At the outset, the Respondent submits, to the extent that the Appellant seeks to challenge the lawfulness of Directive 12/21, that it is not a decision against which an appeal can be made pursuant to s 195(2) of the PS Act.
  1. [19]
    The Respondent contends that the decision to suspend the Appellant without remuneration was fair and reasonable, submitting, in summary, that:
  1. (a)
    Directive 12/21 is reasonable and proportionate having regard to the public health risks of COVID-19 and the Chief Health Officer's Direction;
  1. (b)
    the Appellant's failure to comply with Directive 12/21 is significant, being some ten months since Directive 12/21 has been in place in September 2021 and approximately four months since the finalisation of her exemption application process on 3 March 2022;
  1. (c)
    it is clear from the Appellant's correspondence with SCHHS that she does not intend to become vaccinated;
  1. (d)
    the Appellant's role requires her to physically attend and be present at Caloundra Hospital to assist and contribute to the effective and efficient administrative management and to carry out her duties;
  1. (e)
    the Appellant has chosen not to be vaccinated and as a result, the Appellant is unable to perform her duties and it is not reasonable for her to expect the public to pay her salary while she remains unvaccinated;
  1. (f)
    the Appellant was notified of the proposed suspension without pay and took the opportunity that was afforded to her to provide a response; and
  1. (g)
    the Appellant is not precluded from seeking alternative employment.
  1. [20]
    The Respondent submits, in deciding to suspend the Appellant without remuneration, the decision maker considered:
  1. (a)
    her statutory obligations to manage public resources effectively, responsibly and in a fully accountable way and determined it was not an appropriate use of public monies for the Appellant to remain on suspension with remuneration for any further period;
  1. (b)
    the timeframe the Appellant had to comply with Directive 12/21 and, in particular, that SCHHS made its employees aware of the requirements of Directive 12/21 and provided sufficient time for compliance;
  1. (c)
    the potential impact on suspending the Appellant without remuneration and noted that it would have a financial impact. However, this is only one factor to be considered;
  1. (d)
    the Appellant's human rights; and
  1. (e)
    whether there were any reasonable alternatives and determined that there was no reasonable alternative role or reasonable adjustments available.

Consideration

  1. [21]
    Consideration of an appeal of this kind requires a review of the decision to suspend the Appellant without remuneration to determine if the decision was fair and reasonable in the circumstances.
  1. [22]
    As outlined above, the Appellant's submission that this matter be held in abeyance pending the outcome of another public service appeal has been denied on the basis that the matters subject to that appeal are separate and distinct from this appeal. This appeal is against the decision of Ms Shaw to suspend the Appellant without remuneration. 
  1. [23]
    The Appellant was advised by letter dated 6 July 2022 that the decision maker was of the view that the Appellant may be liable to discipline under a disciplinary law following the Appellant's failure to provide evidence of receiving a COVID-19 vaccine in accordance with Directive 12/21. The Appellant was given an opportunity to show cause in relation to the allegation that she had failed to follow a reasonable and lawful direction to comply with the vaccination requirements set out in Directive 12/21. Ms Grant advised the Appellant of the decision to suspend the Appellant on normal remuneration and provided the Appellant the opportunity to show cause as to why she should not be suspended without remuneration. Ms Shaw advised the Appellant by letter dated 25 July 2022 that, after considering her response, a decision had been made to suspend the Appellant without remuneration until 10 October 2022 at which time she would consider the issue of her suspension afresh. I am satisfied that the Appellant was afforded natural justice throughout the process.
  1. [24]
    The decision outlined Ms Shaw's consideration of issues raised by the Appellant and stated:

In reaching my decision on suspension I have considered, based on the evidence before me, that you have not received the required number of doses of a COVID-19 vaccine pursuant to the HED 12/21, and subsequently I am satisfied reasonable grounds for discipline have been established pursuant to section 187 of the Act.

  1. [25]
    Ms Shaw's correspondence provided the following expanded reasons for the decision:
  • You have chosen not to follow the requirements of the Health Employment Directive No 12/21 Employee COVID-19 vaccination requirements (HED 12/21)
  • Your role has been designated as being required to be vaccinated against COVID-19 within the scope of HED 12/21 with a vaccine approved by the TGA. This decision was made by the Director General on the basis that a safe reliable COVID-19 vaccination program has been available to Queensland Health employees for some time, and, as Australia shifts to living with the virus, it recognises the expectation upon employers to protect both their workers and the public accessing their services.
  • I am also mindful that, in addition to promoting the health and well being of yourself, your colleagues and persons accessing healthcare through requiring vaccination, the purpose of the mandate is to ensure the continued readiness of the health system to respond to the changing nature of the pandemic.
  • I also do not consider alternative duties, or a temporary transfer, or other alternative working arrangement to be available or appropriate in the current circumstances having regard to:
    • the feasibility of working from home or alternative facilities and determined this is not a suitable option available to you given your substantive role as an Administration Officer, Ambulatory Care requires the provision of services that directly impact the clinical care to patients of the Health Service.
    • On 25 October 2021, the Director-General issued an email to all Departmental employees, mandating that employees who work in hospitals and healthcare facilities were to be fully vaccinated by 1 November 2021.
    • Your work location is a hospital, specifically Caloundra hospital.
    • Since 10 November 2021, a worker in health care must not enter, work in, or provide services in a healthcare setting unless the worker in healthcare complies with the COVID-19 vaccination requirements.
    • Accordingly, you are unable to attend a hospital (other than as a patient or as a visitor).
    • You do not have a current exemption that would preclude you from complying with the HED12/21.
  • Clause 6.3(c) of the Suspension Directive Requires that I give consideration to the public interest of an employee remaining on suspension with remuneration. Whilst I acknowledge your decision not to have the required COVID-19 vaccinations, I have a statutory obligation to manage public resources efficiently, responsibly and in a fully accountable way. Relevantly, the HED 12/21 was introduced in excess of ten (10) months ago, yet you remain non-compliant. Therefore, I do not consider it is a responsible and efficient use of public money to continue to remunerate you given the circumstances.
  • As outlined earlier, I do not accept that you have an Industrial Dispute afoot, and therefore, there is no legal requirement for me to consider placing you on "paid leave" whilst this matter is brought to a conclusion, and nor do I consider it appropriate for the reasons outlined in this letter.
  • Whilst I consider that my decision to suspend you without remuneration may have a financial impact on you, and I consider this to be a serious matter, it appears you have failed to comply with the HED 12/21 which consequently forms a condition of your employment. Accordingly, it is not sustainable for you to continue to be paid your remuneration at the expense of the public when you are contravening a reasonable and lawful direction bestowed upon you.
  • Having regard to the Sunshine Coast Hospital and Health Service's obligation to ensure the efficient management of public resources, and the importance of ensuring the safety of healthcare workers, support staff, their families, and the patients under our care, I do not consider it is in the public interest for you to remain on suspension with remuneration whilst your matter is brought to a conclusion.
  1. [26]
    Section 137 of the PS Act provides that the chief executive of a department may, by notice, suspend a person from duty if the chief executive reasonably believes that a public service employee is liable to discipline under a disciplinary law. Section 187(1)(d) of the PS Act establishes a ground of discipline where an employee has 'contravened, without reasonable excuse, a direction given to the employee as a public service employee by a responsible person'.
  1. [27]
    It is not in dispute that the Appellant did not comply with the direction to receive a COVID-19 vaccination nor did she receive an exemption from receiving a COVID-19 vaccination. In such circumstances, it was not unreasonable for Ms Shaw to form a belief that the Appellant may be liable for discipline under a disciplinary law.
  1. [28]
    The decision demonstrated that Ms Shaw considered reasonable alternatives, including alternative duties or adjustments and determined that there was no reasonable alternative role or reasonable adjustments available which appropriately manage the risk that arose due to the Appellant's non-compliance. In her role as an Administration Officer, the Appellant is based in the Caloundra Hospital. At the time the decision was made, the Appellant was not able to physically attend her workplace as a consequence of not complying with Directive 12/21.
  1. [29]
    The Appellant submits that the decision is incompatible with human rights. Ms Shaw considered the Appellant's human rights, noting potential limits to the Appellant's right to privacy, reputation and movement and the right to participate in public life, and determined that any limitation is justified after weighing such rights against the importance of maintaining financial accountability and public trust in the public service. This conclusion was open to Ms Shaw and was reasonable in the circumstances.
  1. [30]
    The Appellant's human rights have been considered by the decision maker and after balancing the Appellant's human rights with the other relevant factors, I am satisfied that the decision is not incompatible with the Human Rights Act 2019 (Qld).
  1. [31]
    I am satisfied that the decision complied with the requirements of both the PS Act and the Directive as outlined in the decision.
  1. [32]
    The relevant principles in considering whether a decision is 'unreasonable' were outlined by Ryan J in Gilmour v Waddell & Ors:[5] 

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.[6]

  1. [33]
    Applying the principles outlined above, I do not consider that the decision to suspend the Appellant without remuneration lacks justification in the circumstances. Based on the information before me, the decision to suspend the Appellant without remuneration was fair and reasonable.
  1. [34]
    I order accordingly.

Order

Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed.

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] [2019] QSC 170.

[6] Ibid [207]-[209].

Close

Editorial Notes

  • Published Case Name:

    Taylor v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Taylor v State of Queensland (Queensland Health)

  • MNC:

    [2022] QIRC 383

  • Court:

    QIRC

  • Judge(s):

    Power IC

  • Date:

    06 Oct 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
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
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
2 citations
Jump To
Cite 1 - [2018] QSC 319
Cite 2 - [2018] QSC 319

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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