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  4. Campbell v State of Queensland (Queensland Health) - [2022] QIRC 405

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Campbell v State of Queensland (Queensland Health)[2022] QIRC 405

Campbell v State of Queensland (Queensland Health)[2022] QIRC 405

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Campbell v State of Queensland (Queensland Health) [2022] QIRC 405

PARTIES:

Campbell, Nadine

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO.:

PSA/2022/630

PROCEEDING:

Public Service Appeal – Suspension without remuneration decision

DELIVERED ON:

24 October 2022

HEARD AT:

On the papers

MEMBER:

McLennan IC

ORDER:

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

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL – suspension without remuneration decision – where appellant had informally applied for an exemption – where respondent required further documentation in support of exemption request – where appellant did not provide that information within required timeframe – where respondent proceeded to determine suspension without remuneration issue – whether decision to suspend appellant without remuneration was fair and reasonable – where decision was fair and reasonable – decision appealed against confirmed

LEGISLATION & OTHER INSTRUMENTS:

Human Rights Act 2019 (Qld) s 13

Industrial Relations Act 2016 (Qld) s 451, s 562B, s 562C, s 564

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

Directive 14/20 Discipline cl 4

Directive 16/20 Suspension cl 1, cl 5

Health Employment Directive No. 12/21 cl 7, cl 8, cl 10

CASES:

Bloxham v State of Queensland (Queensland Police Service) [2022] QIRC 037

Colebourne v State of Queensland (Queensland Police Service) [2022] QIRC 018

Gilmour v Waddell & Ors [2019] QSC 170

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

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

Reasons for Decision

Introduction

  1. [1]
    Miss Nadine Campbell (the Appellant) is employed by Queensland Health, State of Queensland (the Respondent) as an AO3 Ward Administration Officer, Mental Health at Caboolture Hospital.
  1. [2]
    The Health Employment Directive No. 12/21 (Directive 12/21) mandates that particular groups of health service employees must receive the COVID-19 vaccine.[1]
  1. [3]
    Directive 12/21 was issued on 11 September 2021.
  1. [4]
    Relevantly, cl 8 of Directive 12/21 provides the following:

8.1 Existing employees currently undertaking work or moving not 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.

…

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. [5]
    The Respondent categorised the Appellant's role as falling within "Group 2" under cl 7.1 of Directive 12/21 which covers employees who work in a hospital or other facility where clinical care or support is required.
  1. [6]
    On 5 October 2021, a Senior Administration Officer at Caboolture Hospital recorded that the Appellant had "… indicated that she will be seeking an exemption based on medical concerns. Nadine has an appointment with a doctor the week commencing 18th October: Nadine indicated that she would be seeking support during this appointment in her exemption application" (the File Note).
  1. [7]
    Due to an administrative oversight, on 28 October 2021, the File Note was recorded as an exemption application instead of an intent to make such an application. The COVID Vaccination Exemption Assessment Committee subsequently and erroneously advised the Appellant that her exemption application was in the process of being considered.
  1. [8]
    The Respondent never received a formal COVID-19 Vaccine Exemption Application Form from the Appellant.
  1. [9]
    On 28 March 2022, the Respondent advised the Appellant of its decision to suspend her on normal remuneration. That correspondence gave the Appellant an opportunity to show cause for why she should not be suspended without remuneration and for why disciplinary findings should not be made in relation to the following allegation:

Allegation 1 – It is alleged that you have failed to follow a reasonable and lawful direction to comply with the vaccination requirements set out in the Directive.

(the Show Cause Notice)

  1. [10]
    On 29 March 2022, the Appellant advised the Respondent she had not received an outcome to her request for an exemption to the mandatory vaccination requirements.
  1. [11]
    On 30 March 2022, the Respondent advised the Appellant they had no record that she had submitted an exemption application and requested she provide a copy of the application form submitted. The Appellant advised that the Senior Administration Officer had submitted the exemption application on the Appellant's behalf.
  1. [12]
    On 13 April 2022, the Appellant provided further information that her exemption request was on the grounds of a 'recognised medical contraindication' to the COVID-19 vaccination and raised concerns that she is predisposed to blood clots. On 4 May 2022, the Respondent provided the Appellant until 11 May 2022 to provide any documentation relevant to her medical concerns.
  1. [13]
    On 9 May 2022, the Appellant confirmed she had submitted her application to access her health records and advised the record processing time would take between 20 to 25 business days. On 26 May 2022, the Respondent extended the timeframe for the Appellant to provide any documentation relevant to her medical concerns to 1 June 2022 or alternatively provide details of any attempts to escalate her request.
  1. [14]
    No further response was provided by the Appellant and so by letter dated 7 June 2022, Dr Kathryn Turner[2] advised the Appellant she had determined to suspend the Appellant from duty without remuneration from 7 June 2022 to 7 September 2022 at which time she would consider the issue of her suspension afresh.
  1. [15]
    On 23 June 2022, the Appellant filed an Appeal Notice with the Industrial Registry.
  1. [16]
    Subsequently, by letter dated 28 June 2022, Dr Turner advised the Appellant her medical information had been reviewed and the advice received was that there was no evidence on the material provided to support an exemption from the vaccination requirements outlined in Directive 12/21.

Jurisdiction

The decision subject of this appeal

  1. [17]
    On p 3 of the Appeal Notice, the Appellant identifies the type of decision being appealed:

I am appealing a current discipline decision. Date discipline decision takes effect: 07 / /06 /2022

  1. [18]
    However, that is at odds with the rest of the Appeal Notice. The Appellant states, "I am appealing the decision to be placed on suspension without pay until 7th September 2022."

Further, the Appellant indicates she has attached a copy of the decision she is appealing which is dated 7 June 2022. The Appellant has attached a letter of that date from Dr Turner in which she advises the Appellant of her decision to suspend the Appellant without remuneration. I cannot discern any form of "discipline decision" within the correspondence dated 7 June 2022 and therefore it appears the Appellant has mistakenly ticked that box on the Appeal Notice. The decision subject of this appeal is the decision of Dr Turner contained in correspondence dated 7 June 2022 to suspend the Appellant without remuneration (the Decision).

  1. [19]
    Section 194(1)(bb) of the PS Act provides that an appeal may be made against a decision to suspend a public service employee without entitlement to normal remuneration under s 137. On that basis, I am satisfied the Decision is appealable.

Timeframe for appeal

  1. [20]
    Section 564(3) of the IR Act requires that an appeal be lodged within 21 days after the day the decision appealed against is given. That is the relevant inquiry with respect to timeframes. I note that despite the question posed in the Form 89 – Appeal Notice regarding when the decision was received.
  1. [21]
    The Decision was given on 7 June 2022 and the Appeal Notice was filed on 23 June 2022. Therefore, I am satisfied the Appeal Notice was filed by the Appellant within the required timeframe.

What decisions can the Commission make?

  1. [22]
    Section 562C of the Industrial Relations Act 2016 (Qld) (the IR Act) prescribes that the Commission may determine to either:
  • confirm the decision appealed against;
  • set the decision aside and return the matter to the decision-maker with a copy of the decision on appeal and any directions considered appropriate; or
  • set the decision aside and substitute another decision.

Appeal principles

  1. [23]
    Section 562B(2)-(3) of the IR Act provides that the appeal is decided by reviewing the decision appealed against "to decide whether the decision appealed against was fair and reasonable".
  1. [24]
    The appeal is not conducted by way of re–hearing, but rather involves a review of the decision arrived at by the Respondent and the associated decision–making process.
  1. [25]
    Findings made by the Respondent, which are reasonably open to it, should not be disturbed on appeal.  Even so, in reviewing the decision appealed against, the Commission may allow other evidence to be taken into account.
  1. [26]
    The relevant principles in considering whether a decision is 'unreasonable' were enunciated by Ryan J in Gilmour v Waddell & Ors (emphasis added, citations removed):[3]

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.

The pluarity in Li said:

… when something is to be done within the discretion of an authority, it is to be done according to the rules of reason and justice. That is what is meant by ‘according to law’. It is to be legal and regular, not vague and fanciful …

… there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court’s view as to how a discretion should be applied for that of a decision-maker …

… it is necessary to look to the scope and purpose of the statute conferring the discretionary power and its real object … The legal standard of reasonableness must be the standard indicated by the true construction of the statute. It is necessary to construe the statute because the question to which the standard of reasonableness is addressed is whether the statutory power has been abused.

… Unreasonableness is a conclusion which may be applied to a decision which lacks an evidence and intelligible justification.

Submissions

  1. [27]
    In accordance with the Directions Order issued on 27 June 2022, and as subsequently amended, the parties filed written submissions.
  1. [28]
    Pursuant to s 451(1) of the IR Act, no hearing was conducted in deciding this appeal.  The matter was decided on the papers.
  1. [29]
    I have carefully considered all submissions and annexed materials but have determined not to approach the writing of this decision by summarising the entirety of those submissions and attachments. My focus is on determining whether the Decision appealed against was fair and reasonable so I will instead refer only to the parties' key positions in my consideration of the matter.

Consideration

Relevant provisions

  1. [30]
    Section 137 of the PS Act outlines the circumstances under which a public service employee may be suspended from duty.
  1. [31]
    Pursuant to s 137(1)(b) of the PS Act, the chief executive of a department may, by notice, suspend a public service employee from duty if the chief executive reasonably believes "the employee is liable to discipline under a disciplinary law."
  1. [32]
    An employee is entitled to normal remuneration during a suspension unless the employee meets the criteria under s 137(4) of the PS Act, namely:
  1. (a)
    the person is suspended under s 137(1)(b) of the PS Act; 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. [33]
    Pursuant to s 137(9) of the PS Act, in suspending a public service employee, the chief executive must comply with the principles of natural justice, the PS Act and Directive 16/20 Suspension (Directive 16/20).
  1. [34]
    Section 187(1)(d) of the PS Act provides that the chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has "contravened, without reasonable excuse, a direction given to the employee as a public service employee by a responsible person".

Show cause response

  1. [35]
    On 13 April 2022, the Appellant responded to the Respondent's request to show cause for why she should not be suspended without pay. The Appellant did not directly respond to the request, however I have discerned that the Appellant's reasoning for why she should not be suspended without pay is that:
  • the Appellant had not yet received the outcome to her exemption application;
  • the Appellant has been a loyal employee and valued asset since 2015;
  • there is no credible or lengthy research in support of the "trial vaccines";
  • the Appellant is aware of someone who died after getting his first dose of the vaccine;
  • the Appellant is aware of people suffering adverse reactions following the vaccine;
  • the Appellant is a single mother of three children and cannot justify putting her health and life at risk for a vaccine that is still in the trial stage; and
  • personal autonomy and informed decisions should be respected.

Appellant's submissions

  1. [36]
    The Appellant relies largely on the abovementioned reasons in support of her contention that the Decision is unfair and unreasonable. During the appeal process, the Appellant further contended the Decision is unfair and unreasonable because:
  • "I went on voluntary LWOP in September 2021, and then was asked to work from home on December 2021 under the agreement signed off by executive, that I can work at home until I receive the outcome of my exemption. This was then cut short when I was placed on suspension on 28/03/2022 with normal remuneration";
  • the Appellant should be able to access the personal leave she has accrued;
  • the Appellant has not received her medical records from Caboolture Hospital;
  • the Appellant has financial obligations and has suffered financial stress as a result of the suspension without remuneration;
  • the Appellant has concerns about the safety of the COVID-19 vaccinations;
  • all other mandates have been dropped;
  • patient confidentiality has become non-existent; and
  • human rights have become non-existent.
  1. [37]
    I will now consider the Appellant's contentions.

Exemption application outcome

  1. [38]
    The Appellant contends the Decision was unfair and unreasonable because she had not yet received an outcome to her exemption application.
  1. [39]
    The Respondent has outlined an administrative error with respect to advising the Appellant they had received an exemption application when in fact they had not received a formal application. However, that issue was brought to the parties' attention as early as 30 March 2022. On 4 May 2022, the Respondent sought further information from the Appellant in relation to the recognised medical contraindication she alleged to have. The Appellant was afforded a period of 7 days to provide any documentation relevant to her medical concerns. At the Appellant's request, the Respondent granted an extension until 1 June 2022 so that the Appellant could access her health records.
  1. [40]
    Despite the extension, the Respondent did not receive a response from the Appellant by 1 June 2022. The Respondent waited a further week before issuing the Appellant with the Decision on 7 June 2022.
  1. [41]
    The Appellant had, at the very least, a period of four weeks within which she knew that more information was required to support her request for an exemption. When the deadline came and passed, the Appellant did not take the initiative to contact the Respondent for a further extension. On that basis, I do not find it unreasonable that the Respondent proceeded to determine the matter of whether or not to suspend the Appellant without remuneration.
  1. [42]
    The Appellant outlined a number of medical concerns relating to adverse reactions. However, an exemption request on medical grounds requires a letter from the Appellant's treating specialist medical practitioner outlining a medical contraindication to the COVID-19 vaccine. In the absence of the Appellant providing any evidence of specific adverse medical conditions in relation to the issues she raised, including any contraindications to her being able to be safely administered the current vaccines – it was not unreasonable for the Respondent to proceed to consider suspension without remuneration.
  1. [43]
    In any event, the information that the Appellant was ultimately able to obtain did not satisfy the Royal Brisbane and Women's Hospital Staff Specialists that the Appellant should be granted an exemption.

Personal leave

  1. [44]
    The Appellant appears to indicate the Decision is unfair and unreasonable because she has been unable to access the personal leave she has accrued. However, this is an appeal against the Decision to suspend the Appellant without remuneration - not an appeal against a decision (if any) to deny the Appellant access to her leave entitlements while suspended without remuneration.
  1. [45]
    In any event, the Respondent's position is that the Appellant was advised that if she was to be suspended without remuneration, she could then request to access her leave entitlements. The Respondent contends that as at 4 August 2022, the Respondent had not received any further requests from the Appellant to access her leave entitlements while suspended without remuneration. If that is still the case, this decision will no doubt prompt the Appellant to do so and that should be worked out between the parties accordingly.

Alternative arrangements

  1. [46]
    The Appellant makes vague reference to an alleged agreement whereby she could work from home until she received her exemption outcome. The Appellant contends that this alleged agreement was "cut short" when she was suspended on normal remuneration. The Appellant does not provide evidence of such an agreement which is not persuasive in circumstances where the Respondent also disputes its existence.
  1. [47]
    This appeal is concerned with the Decision – that is, the determination that the Appellant would be suspended without remuneration. I cannot assess the reasonableness of any alleged agreement that was "cut short" back in March 2022 – particularly when the Appellant's reference to this arrangement has been so vague. I cannot discern from the Appellant's submissions how that arrangement is relevant and what I am to make of it.
  1. [48]
    I will however turn to consider the matter of alternative arrangements in light of cl 5.2(c) of Directive 16/20 which provides:

Employers are required to document and provide to the employee what duties or other options had been identified and considered, including any reason why the employee could not undertake those alternative options. This could include:

  1. (i)
    Temporary transfer to alternative duties (either in the employee's workplace or at another workplace)
  2. (ii)
    Directing the employee to work under close supervision or with another employee
  3. (iii)
    Asking the employee if they wish to access accrued recreation and/or long service leave (access to accrued leave is at the discretion of the employee)
  1. [49]
    The Respondent submits the Show Cause Notice outlines that there were no alternative working arrangements available or appropriate for the Appellant to perform and this was a decision open to be made, having regard to the objectives of Directive 12/21. The Respondent highlights that the Appellant is employed as a Ward Administration Officer which necessarily requires her presence in a hospital.
  1. [50]
    In the Show Cause Notice, Dr Turner reasonably considered and concluded:

I have considered whether there are any reasonable alternatives to suspending you from duty, including alternative duties, a temporary transfer (either in your current workplace or another workplace) or another alternative working arrangement, or asking if you wish to access accrued recreation and/or long service leave.

I do not consider the alternative duties, or a temporary transfer, or other alternative working arrangements, to be available or appropriate in the current circumstances. In considering this, I have undertaken an assessment of the Allegation and your role within the Health Service and whether your continuation in the role or another role presents any potential risk to patients, other employees or others. I have also determined that no working from home arrangements may be accommodated as it is not viable or practical for a Ward Administration Officer to work from a home-based setting given your role requires that you are present in the workplace. Any working from home arrangements were granted on a temporary basis to allow flexible working arrangements during the COVID-19 pandemic to protect the health and safety of yourself, other employees and others. It is also a condition of your employment that your role is located at the Caboolture Hospital, which necessarily requires your attendance at this location. Further, it is alleged that you have not followed a reasonable and lawful direction and I do not consider other alternative working arrangements to be appropriate until the show cause process is complete.

  1. [51]
    I note that the role description for a Ward Administration Officer includes the following responsibilities:
  • contribute to patient flow efficiencies on the ward and throughout the hospital by liaising with a range of staff to coordinate appointments, resources and movements on the behalf of patients;
  • consult with patients to obtain correct details for the completion of admissions to the ward and record information accurately into the hospital based information systems;
  • assist with patient discharges and transfers;
  • respond to general reception enquiries by answering incoming telephone calls and ensuring accurate transfer of messages;
  • assist and direct visitors by accessing patient information; and
  • provide effective and courteous front counter service.[4]
  1. [52]
    In Tilley v State of Queensland (Queensland Health), Industrial Commissioner Hartigan concluded the following:

I am satisfied the Department considered alternative working arrangements for Mr Tilley. I consider that the view formed that there were no alternative working arrangements available for Mr Tilley to perform was a decision open to be made, having regard to the Department's responsibility to manage the risks associated with COVID-19 in the workplace which is frequented by employees, patients and the broader community. [5]

  1. [53]
    Similarly, I am satisfied the decision maker considered the Appellant's submission regarding the possibility of working remotely. Further, I am satisfied the decision-maker considered alternative options. However, in light of the various responsibilities that fall under the Appellant's role, I find that it was fair and reasonable for the Respondent to form the view that there were no alternative working arrangements available having regard to the Department's responsibility to manage the risks associated with COVID-19.
  1. [54]
    The Respondent documented its consideration in the Show Cause Notice as outlined in [50] above. The Respondent identified various alternative options with reference to the objective of Directive 12/21 and reasoned why those alternative options were not appropriate. I accept those reasons to be fair and reasonable in the circumstances.

Human Rights

  1. [55]
    The Appellant broadly and vaguely contends that human rights have become non-existent. The Appellant does not expand on this submission with specific reference to the Human Rights Act 2019 (Qld) (the HR Act).
  1. [56]
    Clause 4.5 of Directive 14/20 stipulates:

Under the Human Rights Act 2019 a decision maker has an obligation to act and make decisions in a way that is compatible with human rights, and when making a decision under this directive, to give proper consideration to human rights.

  1. [57]
    Section 13(1) of the HR Act provides that "A human right may be subject under law only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom." Section 13(1) of the HR Act clearly indicates that rights are generally not absolute and are allowed to be limited in justifiable circumstances.
  1. [58]
    Upon review of the Decision, it is clear that the decision-maker took the Appellant's human rights into careful consideration and reasonably concluded:

I acknowledge that my decision to suspend you from duty without normal remuneration and the conditions placed on you during the course of your suspension may potentially limit your human rights including, but not limited to, your recognition and equality before the law; protection from torture and cruel, inhuman or degrading treatment; freedom of movement; freedom of thought, conscience, religion and belief; freedom of expression; and the right to take part in public life through employment in the public service.

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

Further, the Health Service has an obligation to manage public resources efficiently, responsibly and in a fully accountable way. I am persuaded that you have been provided with sufficient opportunity to understand the requirements of you and provide an offer to comply. I therefore consider that the limits placed upon your human rights, by the decisions contained within this letter, justify the potential impact on your human rights.

  1. [59]
    For the reasons outlined above and as I similarly concluded in Bloxham v State of Queensland (Queensland Police Service),[6] the Respondent thoroughly considered and appropriately concluded that any limitation of a human right by virtue of the Decision is reasonable and justified in light of competing interests and the seriousness of those interests. On that basis, I reject the Appellant's argument that the Decision was not fair and reasonable by virtue of the consideration of her human rights.

Other matters

  1. [60]
    The Appellant has also made a series of other arguments with respect to vaccine efficacy concerns, trials, disclosing medical records and adverse reactions. Those matters have now been considered in numerous decisions within this jurisdiction.
  1. [61]
    In response to those matters, I refer to Tilley v State of Queensland (Queensland Health) in which Industrial Commissioner Hartigan concluded the following:
  1. [39]
    The other matters, referred to above, raised by Mr Tilley form the basis of his personal preference not to receive a vaccine. I do not consider the matters relied on by Mr Tilley result in Directive 12/21 being unreasonable. In this regard, cl 6 of Directive 12/21 identifies the risk posed by the virus to staff, patients and the broader community and the Directive is aimed at minimising such a risk. I consider that to be reasonable.

…

[52]  Finally, Mr Tilley relies on the financial impact of suspension without remuneration as a ground to argue that the decision was not fair and reasonable. There is no doubt that Mr Tilley will suffer a financial detriment associated with the loss of income. I consider that to be a serious matter. However, it must be considered in the context of all the relevant circumstances of the matter.

[53] The circumstances of this matter include, Mr Tilley failing to comply with a directive which consequently formed a condition of his employment. Further, Mr Tilley's submission indicates that he does not intend to comply with the condition in the immediate future. Given the nature of the substantiated allegation, I consider that it was available, on the information before the decision maker, to conclude that it was not appropriate for Mr Tilley to receive remuneration during the remainder of the disciplinary process. The Department confirms in its written submissions that Mr Tilley is not precluded from seeking alternative employment with another employer. I am satisfied that in making the decision, the Department has complied with s 137 of the PS Act.[7]

  1. [62]
    I similarly conclude that the remaining matters raised by the Appellant evince her personal preference not to receive the COVID-19 vaccination. I do not consider those matters to render the Decision unfair or unreasonable. The Appellant's personal and financial impacts have been taken into consideration and I accept the Respondent has reasonably balanced those potential impacts with the other circumstances relevant to this matter.
  1. [63]
    The significant number of reasons for why the Appellant takes issue with Directive 12/21 indicates that the Appellant does not intend to comply in the immediate future. That factor suggests it is appropriate to suspend her without remuneration for the remainder of the disciplinary process.

Statutory requirements

  1. [64]
    I have considered the Appellant's grounds of appeal and rejected each for the reasons outlined above. Although the following matters were not raised by the Appellant as a specific appeal ground, for completeness I will consider whether the decision maker has complied with the statutory requirements in arriving at the Decision.

Sections 137(1)(b) & 187(1)(d)

  1. [65]
    Section 137(1)(b) of the PS Act permits the chief executive to suspend a public service employee from duty if the chief executive reasonably believes the employee is liable to discipline under a disciplinary law. The decision maker reached that conclusion based on s 187(1)(d) of the PS Act, in that the Appellant contravened, without reasonable excuse, a direction given to her.[8]
  1. [66]
    The Appellant makes submissions with respect to the COVID-19 vaccinations only being in the "trial" stage and argues that all other areas have revoked the mandates with the exception of Queensland Health. Those arguments are not supported by evidence but rather appear to be musings of the Appellant and in any event, the fact that the Appellant had refused and was refusing to comply with Directive 12/21 is sufficient to induce in the mind of the decision-maker that there was a reasonable belief that the Appellant was liable to discipline under a disciplinary law.[9]

Section 137(4)(b)

  1. [67]
    Pursuant to s 137(4)(b) of the PS Act, a public service employee is entitled to normal remuneration during a suspension unless the chief executive considers it is not appropriate, having regard to the nature of the discipline to which the chief executive believes the person is liable.
  1. [68]
    The decision-maker reasonably considered the nature of the discipline to which she believes the Appellant is liable and I am satisfied that was thoroughly outlined in justification of suspension without pay as follows:

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. 

Section 137(9)(a)

  1. [69]
    Pursuant to s 137(9)(a) of the PS Act, in suspending a public service employee, the chief executive must comply with the principles of natural justice. The Appellant did not make specific submissions in this regard.
  1. [70]
    I note that the Show Cause Notice provides:

Before I decide as to how to proceed in relation to the Allegation and any suspension without pay. I would like to receive your views on the Allegation and any suspension without pay. Accordingly, I now afford you the opportunity to show cause, in writing, why you should not be disciplined in relation to the Allegation and why you should not be suspended without remuneration.

I will consider all relevant information that you choose to provide prior to making a decision in relation to the Allegation and any suspension without remuneration…

Your response should be provided to me within fourteen (14) days of receipt of this letter…

  1. [71]
    I have considered and concluded that natural justice was fairly and reasonably afforded to the Appellant in this matter.

Section 137(9)(c)

  1. [72]
    Pursuant to s 137(9)(c) of the PS Act, in suspending a public service employee under this section, the chief executive must comply with Directive 16/20.
  1. [73]
    Clause 6 of Directive 16/20 relevantly provides:

6.  Suspension without remuneration

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

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

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

  1. (a)
    the nature of the discipline matter
  1. (b)
    any factors not within the control of the agency that are preventing the timely conclusion of the discipline process
  1. (c)
    the public interest of the employee remaining on suspension with remuneration.
  1. [74]
    I have already concluded above that the Respondent has extensively considered the nature of the discipline matter. With respect to public interest, the Decision stipulated:

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. Further, you were provided until 1 June 2022 to provide any documentation relevant to your medical concerns or alternatively, your attempts to request the hospital urgently provide your medical documentation. To date, we have not received any documentation relevant to your medical concerns or evidence that you have contacted the hospital to escalate your request. Therefore, I do not consider it is an appropriate use of public monies for you to remain on suspension with remuneration for any further period.

  1. [75]
    In light of the above excerpt, I am satisfied the Respondent complied with Directive 16/20.

Finding

  1. [76]
    For the reasons outlined above, I find the decision-maker complied with the statutory requirements and have not identified any element that renders the Decision anything other than fair and reasonable.

Conclusion

  1. [77]
    The Decision set out evidence in support of the ultimate conclusion to suspend the Appellant without remuneration.
  1. [78]
    I am satisfied the Decision included intelligible justification following consideration of relevant matters. The allegation against the Appellant is serious and the evidence supporting the Decision is compelling in my view.
  1. [79]
    I order accordingly.

Order

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

Footnotes

[1] Health Employment Directive No. 12/21 cls 1, 7-8.

[2] Executive Director, Metro North Mental Health.

[3] [2019] QSC 170, [207]-[210], citing Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, [63]-[76].

[4] Role Description – Ward Administration Officers, Metro North Mental health – Redcliffe Caboolture.

[5] [2022] QIRC 002.

[6] [2022] QIRC 037, 11 [47].

[7] [2022] QIRC 002.

[8] Letter from Dr K. Turner to the Appellant, 28 June 2022.

[9] Colebourne v State of Queensland (Queensland Police Service) [2022] QIRC 018, [28]-[30].

Close

Editorial Notes

  • Published Case Name:

    Campbell v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Campbell v State of Queensland (Queensland Health)

  • MNC:

    [2022] QIRC 405

  • Court:

    QIRC

  • Judge(s):

    McLennan IC

  • Date:

    24 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
Bloxham v State of Queensland (Queensland Police Service) [2022] QIRC 37
2 citations
Jump To
Cite 1 - [2022] QIRC 37
Cite 2 - [2022] QIRC 37
Colebourne v State of Queensland (Queensland Police Service) [2022] QIRC 18
2 citations
Jump To
Cite 1 - [2022] QIRC 18
Cite 2 - [2022] QIRC 18
Gilmour v Waddell [2019] QSC 170
2 citations
Jump To
Cite 1 - [2019] QSC 170
Cite 2 - [2019] QSC 170
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
2 citations
Jump To
Cite 1 - (2013) 249 CLR 332
Cite 2 - (2013) 249 CLR 332
Tilley v State of Queensland (Queensland Health) [2022] QIRC 2
3 citations
Jump To
Cite 1 - [2022] QIRC 2
Cite 2 - [2022] QIRC 2
Cite 3 - [2022] QIRC 2

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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