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  4. Grainey v State of Queensland (Department of Health) (No. 2) - [2022] QIRC 403

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Grainey v State of Queensland (Department of Health) (No. 2)[2022] QIRC 403

Grainey v State of Queensland (Department of Health) (No. 2)[2022] QIRC 403

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Grainey v State of Queensland (Department of Health) (No. 2) [2022] QIRC 403

PARTIES:

Grainey, Melissa

(Appellant)

v

State of Queensland (Department of Health)

(Respondent)

CASE NO:

PSA/2022/586

PROCEEDING:

Public Service Appeal – Appeal against a suspension without pay decision

DELIVERED ON:

21 October 2022

MEMBER:

Hartigan IC

HEARD AT:

On the papers.

ORDER:

The appeal is dismissed

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL – where appellant employed as a registered nurse with the respondent – where respondent issued a direction on 11 September 2021 mandating that certain employees unless exempted receive a first and second dose of a COVID-19 vaccine by 31 October 2021 – where appellant did not comply with the direction and did not provide evidence of a valid exemption – where appellant suspended without remuneration pursuant to s 137(4) of the Public Service Act 2008 (Qld) – where appellant submits directive is unreasonable – where decision made is fair and reasonable – appeal dismissed

LEGISLATION:

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

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

Health Employment Directive 12/21 – Employee COVID-19 vaccination requirements, cl 1, cl 2, cl  6, cl 7 and cl 8

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

CASES:

Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245

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

Reasons for Decision

Introduction

  1. [1]
    Ms Melissa Grainey is employed by the State of Queensland (Queensland Health) ('the Department'), as a Registered Nurse at the Royal Brisbane and Women's Hospital within the Health Service.
  1. [2]
    This appeal has been commenced[1] in the context of Ms Grainey allegedly failing to comply with a directive which required Ms Grainey to comply with the requirements of Health Employment Directive 12/21 – Employee COVID-19 vaccination requirements ('HED 12/21').
  1. [3]
    By letter dated 28 March 2022, the Department put an allegation, associated with Ms Grainey's failure to comply with a workplace directive, to Ms Grainey for her response. Specifically, Ms Grainey was invited to show cause in relation to the allegation that she failed to follow HED 12/21 ('the allegation'), which required employees to have received two (2) doses of a COVID-19 vaccine by 31 October 2021.
  1. [4]
    During the show cause process, the Department suspended Ms Grainey from duty on normal remuneration in accordance with s 137(1)(b) of the Public Service Act 2008 (Qld) ('the PS Act'). The Department also advised Ms Grainey that they were considering suspending her without pay and provided Ms Grainey with seven (7) days to respond as to why she should not be suspended without pay.
  1. [5]
    By letter dated 4 April 2022, Ms Grainey responded to the Department and raised concerns regarding a lack of risk assessment and consultation and requested that she be placed on paid leave while the matter was being resolved.
  1. [6]
    On 12 April 2022, the Department issued a decision that Ms Grainey be suspended from duty without normal remuneration up to and including 26 April 2022.
  1. [7]
    By letter dated 28 April 2022, the Department advised Ms Grainey that after consideration of all the material that it had determined to extend Ms Grainey's suspension from duty without normal remuneration in accordance with s 137(4)(b) of the PS Act up to and including 17 May 2022. 
  1. [8]
    By notice of appeal filed on 20 May 2022, Ms Grainey appealed the decision of the Department dated 28 April 2022 which sought to extend Ms Grainey's suspension from duty without normal remuneration. Ms Grainey relies on the following grounds, as relevantly summarised, in support of her appeal:
  1. that the authority to approve or decline an exemption application in clause 10 of HED 12/21 is invalid as the decision maker 'did not have the delegated authority of the Chief Executive (Director General)' as 'enunciated in s 45' of the Hospital and Health Boards Act 2011 9 (Qld) ('the HHB Act');
  2. the direction to be vaccinated was not a lawful and reasonable order;
  3. the 'exemption declinature decision making process and decision itself offends section 44F of the HHB Act';
  4. the 'Exemption Declinature Decision' was not exercised in accordance with conditions to which the delegation was subject,' in particular, the 'delegate' did not ensure that appropriate consultation occurred with the Human Resources Branch prior to not approving the exemption request;
  5. during the decision-making process, the 'Chief Executive failed to act independently, impartially and fairly';
  6. the Chief Executive impermissibly allowed a flawed 'internal review' of their own decision; and
  7. 'the Chief Human Resources Officer takes a whole of department approach denying the Appellant (Ms Grainey) Stage 1 Local Action and Stage 2 Internal Review'.
  1. [9]
    It can be seen from these summarised grounds of appeal that Ms Grainey seems to be critical of the decision to refuse her request for an exemption and the subsequent review process. That is not the decision which is the subject of this appeal.
  1. [10]
    The matter was listed for mention on 27 May 2022. During the course of that mention, Ms Grainey's representative confirmed that the only decision Ms Grainey sought to appeal was the decision to extend her suspension without remuneration. This means that the grounds of appeal are largely irrelevant as they address a separate and distinct decision and process.
  1. [11]
    In the notice of appeal, Ms Grainey sought an immediate stay of the decision being appealed against. I have previously released a decision in these proceedings, Grainey v State of Queensland (Queensland Health)[2], determining that the decision, which is the subject of the appeal, is not one capable of being stayed.
  1. [12]
    The appeal is made pursuant to s 197 of the PS Act, which provides that an appeal under Ch. 7, Pt. 1 of the PS Act is to be heard and determined under Ch. 11 of the Industrial Relations Act 2016 (Qld) ('the IR Act') by the Queensland Industrial Relations Commission.
  1. [13]
    Sections 562B(2) and (3) of the IR Act, which commenced operation on 14 September 2020, replicates the now repealed ss 201(1) and (2) of the PS Act.[3]  Section 562B(3) of the Industrial Relations Act 20016 (Qld) ('the IR Act') provides that the purpose of an appeal is to decide whether the decision appealed against was fair and reasonable. Accordingly, the issue for my determination in this appeal is whether the decision is fair and reasonable.
  1. [14]
    I must decide the appeal by reviewing the decision appealed against. The word 'review' has no settled meaning and, accordingly, it must take its meaning from the context in which it appears.[4]  An appeal under Ch. 7, Pt. 1 of the PS Act is not a re-hearing but, rather, involves a review of the decision arrived at and the decision-making process associated with it.[5]
  1. [15]
    For the reasons contained herein, I have found that the decision was fair and reasonable.

Preliminary matters

  1. [16]
    On 17 August 2022, the Appellant's representative filed submissions requesting that the matter be held in abeyance pending the decision in matter number PSA/2022/255. This request was made following the decision[6] refusing Ms Grainey's application to stay the decision being appealed against.
  1. [17]
    The Appellant contends that the matters in this appeal are substantially similar to those being considered in PSA/2022/255. The Appellant submits that PSA/2022/255 appeals the process in which vaccination exemptions applied for under HED 12/21 were refused.
  1. [18]
    The Appellant's submissions continue as follows:
  1. In particular, there are concerns relating to whether the appropriate delegation existed for a decision to refuse a request exemption from the Health Employment Directive 12/21 ('HED 12/21') vaccination requirements.
  1. [19]
    The Department does not consent to the appeal being placed in abeyance pending the outcome of PSA/2022/255.
  1. [20]
    Relevantly, the subject matter of PSA/2022/255 is described by the Department as being with respect to an appeal of an internal decision confirming the refusal of an application to be exempt from compliance with the vaccine requirements in HED 12/21.
  1. [21]
    That is not substantially the same subject matter to this appeal. Whilst Ms Grainey did apply for an exemption from compliance with HED 12/21 which was refused, Ms Grainey has not sought to appeal the decision to refuse the exemption request.
  1. [22]
    I am not satisfied on the material before me that the Applicant has established a sound basis upon which I ought to place the proceedings in abeyance.
  1. [23]
    Further, in this regard, I note that Ms Grainey seeks to appeal a decision extending her suspension from duties without normal remuneration. I consider, in the absence of compelling submissions, that it is in the interests of both parties that this appeal be resolved.

The decision

  1. [24]
    The decision relates to an allegation put by the Department on 28 March 2022 to Ms Grainey regarding her alleged conduct as follows:

It is alleged that you have failed to follow a reasonable and lawful direction to comply with the vaccination requirement set out in the Directive.

…

  1. [25]
    On 4 April 2022, Ms Grainey replied to the show cause letter.
  1. [26]
    By letter dated 28 April 2022 the Department advised Ms Grainey that the allegation had been substantiated and provided the following reasons for the decision:

I note that 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 requirement set out in the Directive was made considering the significant risk to the health and safety of our 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, demonstrate a potential unwillingness (if proven) to comply with the 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 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.

Accordingly, pursuant to section 137(4) of the Act, I have decided to extend your suspension without remuneration up to and including 17 May 2022.

  1. [27]
    As noted above, it is the decision dated 28 April 2022 which is the subject of the appeal. Relevantly, that decision is the decision to extend Ms Grainey's suspension from duties without normal remuneration.
  1. [28]
    By letter dated 20 June 2022, the Department advised that Ms Grainey's suspension without remuneration would be extended to 16 September 2022. The Department have not yet made a decision on the disciplinary action to be taken for Ms Grainey's failure to comply with the terms of HED 12/21.

Relevant legislation

  1. [29]
    Section 194 of the PS Act provides for decisions against which appeals may be made as follows:

194 Decisions against which appeals may be made

  1. (1)
    An appeal may be made against the following decisions –

…

(bb) a decision to suspend a public service employee without entitlement to normal remuneration under section 137 (a suspension without pay decision);

…

  1. [30]
    Section 137 of the PS Act provides for the suspension of a public service employee as follows:

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
  2. (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
  2. (b)
    whether the person is entitled to remuneration for the period of the suspension; and
  3. (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.
  2. (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
  2. (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. (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. [31]
    Section 187 of the PS Act sets out the grounds for discipline and disciplinary action generally as follows:

187 Grounds for discipline

(1)  A public service employee’s chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has—

  1. (a)
    engaged in repeated unsatisfactory performance or serious under performance of the employee’s duties, including, for example, by performing duties carelessly, incompetently or inefficiently; or
  1. (b)
    been guilty of misconduct; or
  1. (c)
    been absent from duty without approved leave and without reasonable excuse; or
  1. (d)
    contravened, without reasonable excuse, a direction given to the employee as a public service employee by a responsible person; or
  1. (e)
    used, without reasonable excuse, a substance to an extent that has adversely affected the competent performance of the employee’s duties; or

(ea) contravened, without reasonable excuse, a requirement of the chief executive under section 179A(1) in relation to the employee’s appointment, secondment or employment by, in response to the requirement—

  1. (i)
    failing to disclose a serious disciplinary action; or
  1. (ii)
    giving false or misleading information; or
  1. (a)
    contravened, without reasonable excuse, a provision of this Act; or
  2. (b)
    contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action.

…

  1. [32]
    HED 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) ('HHB Act').
  1. [33]
    Section 51A of the HHB Act provides for the issuing of health employment directives and is set out in the following terms:

51A Health employment directives

  1. (1)
    The chief executive may issue health employment directives about the conditions of employment for health service employees.
  2. (2)
    Without limiting subsection (1), a health employment directive may be about the following—
  1. (a)
    remuneration for health executives and senior health service employees;
  2. (b)
    the classification levels at which health executives and senior health service employees are to be employed;
  3. (c)
    the terms of contracts for health executives and senior health service employees;
  4. (d)
    the professional development and training of health service employees in accordance with the conditions of their employment.
  1. (3)
    A health employment directive may apply to any or all of the following—
  1. (a)
    the department, a Service or all Services;
  2. (b)
    health service employees, or a stated type of health service employee.

…

  1. [34]
    Section 51(1) of the HHB Act provides that, inter alia, a health employment directive that applies to an employee of the department is binding on the employee and the department.
  1. [35]
    Clause 1 of HED 12/21 provides that compliance with the Directive is mandatory.
  1. [36]
    Clause 2 provides that the purpose of HED 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. [37]
    Clause 6 of HED 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 HED 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. [38]
    Clause 7 of HED 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 HED 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 HED.

  1. [39]
    Clause 7.1 of HED 12/21 also includes a table[7] which separates Queensland Health employees into a group number based on their employee cohort. Ms Grainey falls within Group 2, which covers an employee cohort of all health service employees who are employed to work in a hospital or other facility where clinical care or support is provided.
  1. [40]
    Clause 8 of HED 12/21 sets out the mandatory vaccine requirements for existing employees as follows:

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 HED.
  1. [41]
    Clause 10 of HED 12/21 provides that where an employee is unable to be vaccinated, and exemption may be granted as follows:

10.1 Where an employee is unable to be vaccinated they are required to complete an exemption application form.

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.

10.3 If an existing employee is granted an exemption, they do not have to comply with clause 8 or 9 of this HED for the duration of that exemption.

Whether the decision was fair and reasonable

  1. [42]
    It is not in dispute that the Department issued a directive to Ms Grainey in the terms of cl 8 HED 12/21. Relevantly, Ms Grainey was required to have received two (2) doses of a COVID-19 vaccine by 31 October 2021, and to provide her line manager, or to upload into the designated system, evidence of having received the vaccine by no later than seven (7) days after having the received vaccine.
  1. [43]
    Further, it is not controversial that Ms Grainey did not provide evidence, in accordance with cl 8 of HED 12/21, that she had received the required two (2) doses of a COVID-19 vaccine by 31 October 2022.
  1. [44]
    It also appears to be accepted that Ms Grainey has not provided the evidence required by cl 8 of the HED 12/21 prior to the first decision to suspend her from duties without normal remuneration on 12 April 2022 and prior to the decision subject of this appeal being made.
  1. [45]
    The Appellant's submissions in reply focus on a submission that the decision was not fair and reasonable on the basis that Ms Grainey was temporarily working from home prior to being suspended from duty in April 2022.
  1. [46]
    A review of the material filed discloses that Ms Grainey was initially suspended from duties on normal remuneration on 28 March 2022. Ms Grainey's suspension on normal remuneration continued until 12 April 2022 when the first decision suspending Ms  Grainey from duties without normal remuneration was made.
  1. [47]
    The initial suspension of 28 March 2022 occurred following the completion of a review process in which Ms Grainey sought to be exempted from complying with the vaccination requirements. Whilst that review process occurred it appears that Ms Grainey was temporarily permitted to work from home.
  1. [48]
    As noted above, Ms Grainey did not seek to appeal the refusal to grant her an exemption and that decision remains in place.
  1. [49]
    Consequently, a separate disciplinary process has been commenced with respect to Ms Grainey's alleged failure to comply with a reasonable and lawful direction. It is within that context that the Department has suspended Ms Grainey from duty.
  1. [50]
    The Department contends that prior to suspending Ms Grainey with remuneration, the Department considered whether there were any reasonable alternatives, including alternative duties or adjustments. I consider that it was reasonable to conclude that there were no reasonable alternative roles or adjustments available particularly in consideration of Ms Grainey's role as a registered nurse, which is a frontline operational position in a hospital.  
  1. [51]
    The clinical nature of Ms Grainey's work means that her duties could not, in the long term, reasonably be undertaken from home.
  1. [52]
    In the decision to extend Ms Grainey's suspension from duties without normal remuneration, the decision maker had regard to the Department's obligation which include a statutory obligation to manage public resources efficiently, responsibly and in a fully accountable way. In doing so, the decision maker had regard to the alleged failure to comply with the directive and confirmed that the allegation was viewed as serious. These are relevant considerations to be had and I do not consider that such considerations amount to an error or unfairness in the approach taken by the decision maker.

Conclusion

  1. [53]
    Ultimately, I consider the approach taken by the decision maker and the decision made to be fair and reasonable.

Order

  1. [54]
    Accordingly, I make the following order:

The appeal is dismissed.

Footnotes

[1] Appeal filed 20 May 2022.

[2] [2022] QIRC 301.

[3] See the Public Service and Other Legislation Amendment Act 2020 (Qld).

[4] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261 (Mason CJ, Brennan and Toohey JJ).

[5] Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018).

[6] Grainey v State of Queensland (Queensland Health) [2022] QIRC 301.

[7] Table 1.

Close

Editorial Notes

  • Published Case Name:

    Grainey v State of Queensland (Department of Health) (No. 2)

  • Shortened Case Name:

    Grainey v State of Queensland (Department of Health) (No. 2)

  • MNC:

    [2022] QIRC 403

  • Court:

    QIRC

  • Judge(s):

    Hartigan IC

  • Date:

    21 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
1 citation
Jump To
Cite 1 - [1995] HCA 10
Grainey v State of Queensland (Queensland Health) [2022] QIRC 301
2 citations
Jump To
Cite 1 - [2022] QIRC 301
Cite 2 - [2022] QIRC 301

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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