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  4. Donzenac v State of Queensland (Queensland Health) - [2022] QIRC 391

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Donzenac v State of Queensland (Queensland Health)[2022] QIRC 391

Donzenac v State of Queensland (Queensland Health)[2022] QIRC 391

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Donzenac v State of Queensland (Queensland Health) [2022] QIRC 391

PARTIES:

Donzenac, Rupika

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

PSA/2022/596

PROCEEDING:

Public Service Appeal – appeal against suspension without pay decision

DELIVERED ON:

12 October 2022

MEMBER:

Pidgeon IC

HEARD AT:

On the papers

ORDER:

  1. The decision of 10 May 2022 determining that pursuant to s 137(4) of the PS Act, Ms Donzenac should be suspended from duty without normal remuneration is confirmed.

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – public service appeal – appeal against a suspension without pay decision – where the respondent alleges that the appellant did not comply with Health Employment Directive No 12/21 Employee COVID-19 vaccination requirements – where allegation substantiated – where appellant sought exemption from complying with Directive – where appellant was denied an exemption from complying with Directive – where the appellant was suspended from duty without normal remuneration – where directive was reasonable – where the decision was fair and reasonable – decision confirmed 

LEGISLATION:

Industrial Relations Act 2016 ss 562B, 562C

Public Service Act 2008 ss 137, 194

Public Service Commission Directive 16/20 Suspension cl 6

Health Employment Directive No 12/21 Employee COVID-19 vaccination requirements cls 1, 2, 6, 7, 8, 10

Workers in a healthcare setting (COVID-19 Vaccination Requirements) Direction (No. 4).

CASES:

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

Thorley v State of Queensland (Department of Education) [2022] QIRC 133

Tilley v State of Queensland (Queensland Health) [2022] QIRC 002

Reasons for Decision

Introduction

  1. [1]
    Ms Rupika Donzenac (the Appellant) is employed by the State of Queensland (Queensland Health) (the Respondent) as a Registered Nurse with the Metro North Hospital and Health Service.

Background

  1. [2]
    On 11 September 2021, Health Employment Directive 12/21 Employee COVID-19 vaccination requirements (HED 12/21) was issued.  Ms Donzenac was a person to whom the Directive applied.
  1. [3]
    On 30 September 2021, Ms Donzenac applied for an exemption from HED 12/21 on the grounds of 'medical contraindication' and 'other exceptional circumstance'.[1] On 12 January 2022, Ms Donzenac was informed that her application for an exemption had been refused.[2]  On 1 February 2022, Ms Donzenac requested an internal review of that decision. On 28 March 2022, Ms Donzenac was informed that the internal review had been completed and the decision to refuse her application for an exemption had been confirmed.[3]  That correspondence informed Ms Donzenac of her appeal rights regarding the internal review decision.  Ms Donzenac did not lodge an appeal against that decision.
  1. [4]
    On 28 April 2022, Ms Donzenac was informed that she had been suspended from duty on normal remuneration. Ms Donzenac was provided with seven days to respond as to why she should not be suspended without pay.
  1. [5]
    On 4 May 2022, Ms Donzenac provided the following response regarding the proposed suspension without pay:

Dear Ms Nasato

I write in response to your request as outlined in the Show Cause Letter for the 7 day view and will follow a response to your 14 day request.

I am currently liaising with my Union on the matter.

I advise that I have been working from home as organised by management prior to the Show Cause Advice.

I am the sole income earner for my family.

Should suspension without remuneration be advised then I would like the opportunity to access my leave to provide for my Family.

Yours sincerely

Rupika Donzenac RN.

Suspension without pay decision

  1. [6]
    On 10 May 2022, Ms Gillian Nasato, Executive Director, Royal Brisbane and Women's Hospital, wrote to Ms Donzenac.  Ms Nasato said:

Decision on suspension without normal remuneration

Section 137(4) of the 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.  Under Clause 6.3 of the Public Service Commission Directive 16/20 Suspension, in making any decision, I 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 disciplinary process; and
  • the public interest of the employee remaining on suspension with remuneration.

Whilst I have had careful regard to all material before me, including your response, I have determined that in accordance with section 137(4) of the Act that you should be suspended from duty with normal remuneration for the following reasons:

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

I note it is alleged that you have failed to follow a reasonable 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.

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.  I do not consider it is an appropriate use of public monies for you to remain on suspension with remuneration for any further period.

I have also considered very seriously your submissions that you would incur financial hardship were you to be suspended without normal remuneration.  However, I do not consider these factors are sufficient to outweigh the fact that you have not followed a lawful direction to comply with the Directive. The Act and the Suspension Directive expressly contemplate that a suspension may be without normal remuneration in certain circumstances; and, in my view, it is circumstances such as those which currently exist, namely that I reasonably believe you are liable to discipline under a disciplinary law, in which suspension without normal remuneration is appropriate.

Accordingly, pursuant to section 137(4) of the Act, I have determined that it is not appropriate for you to be paid normal remuneration during your suspension, having regard to the public interest, due to ensuring risk is appropriately managed regarding the health and safety of the public and the nature of the discipline matter. I have therefore determined that, effective immediately, the suspension without remuneration will take effect from 13 May 2022 and will remain in place until 3 June 2022 at which time I will consider the issue of your suspension afresh.

  1. [7]
    On 31 May 2022, Ms Donzenac lodged her appeal notice indicating that she was appealing a current discipline decision.  The letter Ms Donzenac attached containing the decision to suspend her without pay does not contain a discipline decision and therefore I am assuming that Ms Donzenac selected that option in Part B in error and intended to select the option 'I am appealing a decision about suspension without pay'.
  1. [8]
    Ms Donzenac appended to her appeal notice submissions of 29 pages in length including: Schedule A – 1 Grounds for Appealing the Disciplinary Decision; Schedule A – 2 Background of events leading up to the purported grounds for discipline and then any disciplinary action or decision; and Schedule B – Interim and Final Orders Sought.   None of these submissions directly address grounds for appeal relating to why the decision to suspend Ms Donzenac without pay is unfair or unreasonable.  However, the thrust of the submissions appears to be that Ms Donzenac believes the direction to receive the vaccination is not valid and therefore any actions arising from her non-compliance with the direction to receive the vaccination should be set aside.
  1. [9]
    On the same day Ms Donzenac filed her appeal, she also filed a Notice of Appointment of Agent in which she appointed QNurses First Inc. as her representative.
  1. [10]
    On 1 June 2022, I asked the Industrial Registry to write to Ms Donzenac's representative clarifying whether the intention was to file an appeal against a suspension without pay decision or whether the wrong decision had been attached.
  1. [11]
    No reply was received and so on 26 July 2022, I listed a mention of the matter for 4 August 2022 to determine whether Ms Donzenac's representatives intended to progress the appeal.   Ms Donzenac's representatives did not attend the mention on 4 August 2022.
  1. [12]
    On 5 August 2022, I issued Directions inviting the Appellant to file submissions addressing the suspension without pay decision by 18 August 2022.  No submissions were received by that date.
  1. [13]
    On 19 August 2022, I asked the Registry to contact Ms Donzenac's representative to ask if there was an intention to file submissions in support of the appeal. On Monday 22 August 2022, Ms Donzenac's representative replied and said that it had served the appeal submissions on the Respondent but did not include the Registry.  The appeal submissions were attached to that correspondence.
  1. [14]
    Ms Donzenac's appeal submissions did not address the suspension without pay decision but asked that the matter be placed in abeyance pending the outcome of other matters before the Commission. After reading those submissions, I requested that the Respondent provide its position regarding the suggestion that the matter be placed in abeyance. That same day, 22 August 2022, the Respondent replied and stated that it was not prepared to hold the appeal in abeyance and that the other matters before the Commission did not relate to the suspension without pay decision.
  1. [15]
    On 25 August 2022, I held another mention of the matter.  At the mention, I invited the parties to make any further submissions in support of their positions regarding the matter being placed in abeyance.  Following brief submissions, I determined that the appeal would proceed.
  1. [16]
    Following the mention, I issued Directions seeking submissions regarding the suspension without pay matter.

Is the Appellant entitled to appeal?

  1. [17]
    Section 194 of the Public Service Act 2008 (the PS Act) lists various categories of decisions against which an appeal may be made. Ms Donzenac appeals the decision to suspend her without pay, which is provided for at s 194(bb) of the PS Act.

Appeal Principles

  1. [18]
    Section 562B(3) of the Industrial Relations Act 2016 (the IR Act) provides that 'the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable.'
  1. [19]
    Findings made in the decision which are reasonably open on the relevant material or evidence before the decision-maker, should not be expected to be disturbed on appeal.
  1. [20]
    A public service appeal is not an opportunity for a fresh hearing, but a review of the decision arrived at by the decision-maker. To determine the appeal, I will consider whether the decision conveyed to Ms Donzenac on 10 May 2022 was fair and reasonable.
  1. [21]
    In deciding this appeal, s 562C(1) of the IR Act provides that the Commission may:
  1. (a)
    confirm the decision appealed against; or

…

  1. (c)
    for another appeal—set the decision  aside,  and substitute another decision or return the  matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.

Directive 12/21

  1. [22]
    Directive 12/21 sets out the mandatory vaccination requirements for all current and prospective health service employees employed under the Hospital and Health Boards Act 2011 (Qld) (the HHB Act).
  1. [23]
    Clause 1 of Directive 12/21 provides that compliance with the Directive is mandatory. Clause 2 provides that the purpose of Directive 12/21 is to outline COVID-19 vaccination requirements for existing and prospective employees employed in the identified high- risk groups designated in the Directive.
  1. [24]
    Clause 6 of Directive 12/21 identifies the potential risk posed to relevant employees, and the risk profile of those employees as follows:

The COVID-19 virus has been shown to disproportionately affect healthcare workers and health support staff and poses a significant risk to Queensland Health patients, and the broader community.

In recognition of the risks posed by the virus, as well as workplace health and safety obligations incumbent upon both the organisation and employees, this Directive requires health service employees who are identified as being in high risk groups to be vaccinated against COVID-19.

Prospective and existing health service employees subject to these requirements have been identified based on the following risk profile:

  • They are working in an area with suspected or confirmed COVID-19 patients or an area that a COVID-19 patient may enter.
  • They are coming into direct or indirect contact with people who work in an area with COVID-19 patients or an area that a suspected or actual COVID-19 patient may enter.
  • They are unable to observe public health requirements (e.g. physical distancing, working in areas of high population density, rapid donning/doffing of personal protective equipment (PPE) in emergent situations).
  • They have the potential to expose patients, clients, other staff or the broader community to the virus (e.g. occupying shared spaces such as lifts, cafeterias, car parks, with people working with suspected or actual COVID-19 patients).
  1. [25]
    Clause 7 of Directive 12/21 sets out the requirements for vaccination. Relevantly, cl 7.1 states:

In acknowledgment of the risks posed by the COVID-19 virus to the health and safety of Queensland Health employees, patients and the broader community, clauses 8 and 9 of this Directive require all existing and prospective employees who are or are to be employed to work in the cohorts as categorised in accordance with Table 1 (below), to be vaccinated as a condition of employment, subject to certain limited exemptions described in clause 10 of this Directive.

  1. [26]
    Clause 8 of Directive 12/21 sets out the mandatory vaccine requirements for existing employees as follows:
  1. 8.1
    Existing employees currently undertaking work or moving into a role undertaking work listed in a cohort of Table 1, must:
  1. have received at least the first dose of a COVID-19 vaccine by 30 September 2021; and
  2. have received the second dose of a COVID-19 vaccine by 31 October 2021.
  • An existing employee must provide to their line manager or upload into the designated system:
  1. evidence of vaccination confirming that the employee has received at least the first dose of a COVID-19 vaccine by no later than 7 days after receiving the vaccine.
  2. evidence of vaccination confirming that the employee has received the second dose of a COVID-19 vaccine by no later than 7 days after receiving the vaccine.
  • An existing employee must maintain vaccine protection. Therefore, an existing employee is required to receive the prescribed subsequent dose/s of a COVID-19 vaccination (i.e. booster), as may be approved by the Australian Technical Advisory Group on Immunisation (ATAGI), within any recommended timeframe following the second dose. Evidence of vaccination, confirming the employee has received prescribed subsequent dose/s of the vaccine, is to be provided to their line manager or other designated person within 7 days of receiving the vaccine.
  • An existing employee who is required to have received a first or second dose of a COVID- 19 dose at an earlier date under a Chief Health Officer public health direction must be vaccinated by the dates specified in the public health direction.
  • The requirements of this clause 8 do not apply to existing employees who have been granted an exemption under clause 10 of this Directive.
  1. [27]
    Clause 10 of Directive 12/21 provides that where an employee is unable to be vaccinated, an exemption may be granted as follows:
  1. 10.1
    Where an employee is unable to be vaccinated they are required to complete an exemption application form.
  1. 10.2
    Exemptions will be considered in the following circumstances:
  • Where an existing employee has a recognised medical contraindication;
  • Where an existing employee has a genuinely held religious belief;
  • Where another exceptional circumstance exists.
  1. 10.3
    If an existing employee is granted an exemption, they do not have to comply with clause 8 or 9 of this Directive for the duration of that exemption

Ms Donzenac's submissions

  1. [28]
    On 1 September 2022, Ms Donzenac's representative filed submissions in support of her appeal.               
  1. [29]
    Ms Donzenac says that in accordance with the PS Act and 'HR Policy E14 – Suspension of Employees', the employer was required to consider whether there were alternative duties or other options such as working from home.  Ms Donzenac says that she was engaging in alternative working duties at the time of the suspension, in that she was working from home for her ordinary contracted hours of four days a week from at least 15 November 2022 until she was suspended with pay in May 2022.

Ms Donzenac says she was working from home prior to the suspension

  1. [30]
    Ms Donzenac says that evidence of her desire to work from home and the employer's apparent willingness to provide alternative working arrangements is demonstrated in the following ways:
  • As early as 27 September 2021, she sought advice about working from home.[4]
  • Between 26 and 28 October 2021, she sought advice about work from home options but was told 'there is no ability at this stage for you to undertake work within the organisation or external to us'.[5]
  • At some point between 28 October 2022 and 15 November 2022, work from home arrangements were organised. 
  • There is correspondence regarding flexible working arrangements,[6] work from home performed by Ms Donzenac,[7] and an 'action plan for workstation assessment'.[8]
  • There is evidence of communication between at least 18 November 2021 and 26 April 2022 of Ms Donzenac indicating times she was logging on and off the system from her home workstation.[9]
  • Ms Donzenac's final pay slip prior to being suspended shows ordinary time earnings being accrued. Ms Donzenac says that this is in contract to the discretionary leave or use of own leave, which was commonplace for non-compliant HED 12/21 workers prior to the suspension without pay process.

Ms Donzenac says that her response was not fully considered

  1. [31]
    Ms Donzenac contends that the decision-maker did not properly consider the response provided by her on 3 May 2022 in that that the only consideration had to her submission amounts to a short reference in the decision quoting Ms Donzenac's response, 'I am the sole income earner for My Family and need to provide'. 
  1. [32]
    Ms Donzenac says that her response to the show cause notice regarding the suspension without pay clearly states that she was currently working from home.[10]
  1. [33]
    Ms Donzenac says that even in the event that suspension without pay was an appropriate option for someone performing valuable alternative duties for the Department (which Ms Donzenac contests), it is plainly clear that the decision-maker did not fully consider the response provided by her and that no mention of alternative duties is even raised by the decision-maker in the 10 May 2022 decision.

Respondent's submissions

  1. [34]
    The Respondent submits that the decision was fair and reasonable. Regarding the decision, the Respondent says, in summary:
  • The decision to direct Ms Donzenac to comply with HED 12/21 was made considering the significant risk to the health and safety of healthcare workers, support staff, their families, and patients under Metro North's care.
  • At the time Ms Donzenac was suspended without pay, she was alleged to have failed to follow a reasonable and lawful direction to comply with the vaccination requirements set out in HED 12/21.
  • The direction had been issued to Ms Donzenac in September 2021, with the first anniversary of the direction fast approaching.
  • Taking into account the period of time during which her application for exemption was being considered, at the time of the decision to suspend without pay on 10 May 2022, Ms Donzenac had not complied with HED 12/21.
  • It is clear from Ms Donzenac's correspondence that she does not intend to become vaccinated.
  • It is therefore clear that the Ms Donzenac does not intend to comply with the lawful and reasonable direction given to her.
  1. [35]
    The Respondent says that the decision-maker, Ms Nasato, considered her statutory obligation to manage public resources efficiently, responsibly and in a fully accountable way and the timeframe Ms Donzenac had to comply with HED 12/21.  Ms Nasato did not consider it was an appropriate use of public monies for Ms Donzenac to remain on suspension with remuneration for any further period.
  1. [36]
    Ms Nasato noted that her decision would have a financial impact on Ms Donzenac and considered Ms Donzenac's human rights.  It was not a reasonable or practical solution to allow Ms Donzenac to work from home whilst she remained unvaccinated and refused to comply with HED 12/21.[11]
  1. [37]
    The Respondent says that Ms Donzenac was notified of the proposed suspension without pay, given an opportunity to respond and provided a short response. 
  1. [38]
    Prior to suspending Ms Donzenac without remuneration, Ms Nasato considered whether there were any reasonable alternatives, including alternative duties and adjustments available.  Ms Donzenac is a Registered Nurse and this is a frontline operational position in a hospital.  Ms Donzenac is unable to perform her duties as a Registered Nurse while she remains unvaccinated.[12]  In those circumstances, the Respondent says that it was entirely reasonable for Ms Nasato to determine that there was no reasonable alternative roles or reasonable adjustments available which appropriately managed the risk that arises from Ms Donzenac's non-compliance with HED 12/21.[13]
  1. [39]
    The Respondent says that the financial impact the suspension may have on Ms Donzenac is only one factor to be considered and must be balanced against the Department's obligations to ensure the effective, efficient, and appropriate use of public resources, including the spending of public funds. The Respondent notes that Ms Donzenac is not precluded from seeking employment with another employer during the period of suspension from duty.[14]
  1. [40]
    In response to Ms Donzenac's submission that the decision only referred to one aspect of her response to the proposal to suspend her without pay, the Respondent quotes the decision which says, 'I have carefully considered all the material before me, including your response.  The fact that a particular matter is not specifically addressed in this letter does not mean that I did not consider it.'
  1. [41]
    With regard to Ms Donzenac's submission that she was working from home four days a week between 15 November 2021 and 10 May 2022, the Respondent says that any work from home arrangements were simply ad-hoc and temporary, and that there was no guarantee of long-term working from home arrangements in circumstances where Ms Donzenac was required to perform a clinical role.  During the time she was working from home, Ms Donzenac remained an employee of the Health Service. Therefore, Ms Donzenac was required to follow all lawful and reasonable directions from her employer with regard to HED 12/21 and the requirement to attend at Health Service sites.[15]
  1. [42]
    With regard to the requirement to consider alternative arrangements and specifically a working from home arrangement, the correspondence of 28 April 2022 informing Ms Donzenac of the suspension from duty with remuneration stated in part:

I have also determined that no working from home arrangements may be accommodated as it is not viable or practical for a Registered Nurse to deliver care to patients from a home based setting given your role is clinically loaded and necessarily requires direct patient contact.

No further submissions

  1. [43]
    The Directions I issued on 25 August 2022 invited further submissions in reply by 4:00pm on 15 September 2022.
  1. [44]
    The Appellant did not make any further submissions in reply to those of the Respondent.

Was the decision to suspend Ms Donzenac without remuneration fair and reasonable?

  1. [45]
    Public Service Commission Directive 16/20 Suspension requires the decision-maker to address particular matters set out at cl 6 when determining to suspend an employee without remuneration:
  1. 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
  2. (b)
    any factors not within the control of the agency that are preventing the timely conclusion of the discipline process
  3. (c)
    the public interest of the employee remaining on suspension with remuneration.

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

As part of the suspension process:

  1. (a)
    The employee must be given the opportunity to respond to the proposed suspension without remuneration prior to the decision being made by the delegate. This can occur through a ‘show cause’ process at the time of notification of the initial suspension on normal remuneration, or at any subsequent stage during the suspension.
  2. (b)
    The employee is to be provided with written notice, including the particulars required by section 137 of the PS Act, and reasons for the decision that suspension is without normal remuneration.

Ms Donzenac received natural justice and procedural fairness

  1. [46]
    There is nothing before me to demonstrate that Ms Donzenac has not received natural justice and procedural fairness.  Ms Donzenac took up the opportunity to apply for an exemption, sought an internal review of the refusal of the exemption and chose not to appeal that internal review decision.  Ms Donzenac was provided with an opportunity to respond to the proposal to suspend her without pay and she did so.
  1. [47]
    I note Ms Donzenac's submission that her response to the proposal to suspend her without pay was not considered. However, it is not necessary for a decision-maker to set out every matter considered. In this case, the letter specifically stated that all material had been considered, even if it was not mentioned.  Having read the reasons for decision set out at [6] (above), I accept that Ms Nasato considered Ms Donzenac's response and has provided satisfactory detail to allow Ms Donzenac to know why the decision to suspend her without remuneration was made.

Nature of the discipline matter

  1. [48]
    Having established that the discipline matter was serious in that it involved a contravention of a lawful direction given to Ms Nasato by way of HED 12/21, I find that it was open to the decision-maker to determine that the discipline matter was of a nature warranting suspension without pay.  The disciplinary matter is clearly of a serious nature when the contravention of the direction is such that it renders Ms Donzenac completely unable to attend her place of work to undertake her duties.

Ms Donzenac's submissions regarding working from home and consideration of alternative duties

  1. [49]
    I have carefully considered Ms Donzenac's submission that she was already working from home at the time that the suspension without pay was put in place.  However, it seems clear that Ms Donzenac was not working from home in the context of an ongoing flexible working arrangement pre-dating HED 12/21.  In fact, it seems entirely unlikely that such a flexible working arrangement would be approved on an ongoing basis in circumstances were Ms Donzenac's work as a Registered Nurse is of a clinical nature and she is considered a frontline worker. 
  1. [50]
    While an interim arrangement may have been put in place for a period of time following HED 12/21 being issued and during the period that Ms Donzenac's application for an exemption from HED 12/21 was being considered and the internal review she requested was being undertaken, any such interim arrangement could not have reasonably been expected to continue. 

Financial impact on Ms Donzenac and public interest in Ms Donzenac continuing to receive remuneration

  1. [51]
    I note Ms Donzenac's submission that suspension without remuneration means she will be unable to provide for her family.  There is no doubt that an employee will experience hardship as a result of the suspension without pay. However, I accept that after weighing the impact of the suspension without remuneration against the Respondent's obligations to ensure the effective, efficient, and appropriate use of public resources and expenditure of public funds, Ms Nasato properly determined that it was not in the public interest for Ms Donzenac to remain on suspension with pay.  This is particularly reasonable in circumstances where Ms Donzenac has continued to choose not to comply with HED 12/21 despite understanding that compliance with the direction is the pathway to a return to duty and normal remuneration.

Conclusion and Order

  1. [52]
    For the foregoing reasons, the decision to suspend Ms Donzenac without remuneration was fair and reasonable in the circumstances.
  1. [53]
    I make the following order:
  1. The decision of 10 May 2022 determining that pursuant to s 137(4) of the PS Act, Ms Donzenac should be suspended from duty without normal remuneration is confirmed.

Footnotes

[1] Respondent's submissions filed 8 September 2022, Attachment RD-2.

[2] Ibid Attachment RD-3.

[3] Ibid Attachment RD-4.

[4] Appellant's submissions filed 1 September 2022, Attachment 2.

[5] Ibid Attachment 3.

[6] Ibid Attachment 4.

[7] Ibid Attachment 5.

[8] Ibid Attachment 6.

[9] Ibid Attachments 7, 8 and 9.

[10] Ibid Attachment 1.

[11] Graffunder v State of Queensland (Queensland Health) [2022] QIRC 076, [74].

[12] Workers in a healthcare setting (COVID-19 Vaccination Requirements) Direction (No. 4).

[13] Thorley v State of Queensland (Department of Education) [2022] QIRC 133, [85].

[14] Tilley v State of Queensland (Queensland Health) [2022] QIRC 002, [47]-[48].

[15] Elliot v State of Queensland (Queensland Health) [2022] QIRC 332, [39]-[43].

Close

Editorial Notes

  • Published Case Name:

    Donzenac v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Donzenac v State of Queensland (Queensland Health)

  • MNC:

    [2022] QIRC 391

  • Court:

    QIRC

  • Judge(s):

    Pidgeon IC

  • Date:

    12 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
Elliott v State of Queensland (Queensland Health) [2022] QIRC 332
1 citation
Jump To
Cite 1 - [2022] QIRC 332
Graffunder v State of Queensland (Queensland Health) [2022] QIRC 76
2 citations
Jump To
Cite 1 - [2022] QIRC 76
Cite 2 - [2022] QIRC 76
Thorley v State of Queensland (Department of Education) [2022] QIRC 133
2 citations
Jump To
Cite 1 - [2022] QIRC 133
Cite 2 - [2022] QIRC 133
Tilley v State of Queensland (Queensland Health) [2022] QIRC 2
2 citations
Jump To
Cite 1 - [2022] QIRC 2
Cite 2 - [2022] QIRC 2

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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