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  4. Hurley v State of Queensland (Queensland Health) - [2022] QIRC 406

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Hurley v State of Queensland (Queensland Health)[2022] QIRC 406

Hurley v State of Queensland (Queensland Health)[2022] QIRC 406

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Hurley v State of Queensland (Queensland Health) [2022] QIRC 406

PARTIES:

Hurley, Frank

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO.:

PSA/2022/697

PROCEEDING:

Public Service Appeal - Discipline decision

DELIVERED ON:

25 October 2022

HEARING DATE:

On the papers

MEMBER:

McLennan IC

HEARING AT:

Brisbane

ORDER:

Pursuant to s 562A(3)(b)(iii) of the Industrial Relations Act 2016, the Appellant's appeal will not be heard.

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL – Appellant employed as a Senior Analyst Clinical Costing – Appellant failed to comply with cl 8 of the Health Employment Directive No. 12/21 – Employee COVID‑19 vaccination requirements – Appellant did not apply for an exemption – Appellant subsequently dismissed – where Appellant appeals decision to terminate his employment – whether appeal against decision should be heard – appeal not heard because of the compelling reason that the decision to terminate is not appealable under Public Service Appeal pathway – in the alternative, appeal not heard because Appellant is no longer a public service employee

LEGISLATION & OTHER INSTRUMENTS:

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

Public Service Act 2008 (Qld) s 194

Health Employment Directive No. 12/21 - Employee COVID-19 vaccination requirements, cl 7, cl 8, cl 10

CASES:

Venables v State of Queensland (Queensland Health) [2022] QIRC 137

Reasons for Decision

Introduction

  1. [1]
    Mr Frank Hurley (the Appellant) was employed by Queensland Health, State of Queensland (the Respondent) as a Senior Analyst Clinical Costing, Finance and Corporate Services within the Children's Health Queensland Hospital and Health Service. 
  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:
  1. 8.1
    Existing employees currently undertaking work or moving not a role undertaking work listed in a cohort of Table 1, must:
  1. a.
    have received at least the first dose of a COVID-19 vaccine by 30 September 2021; and
  1. b.
    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. a.
    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.
  1. b.
    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 Appellant did not receive the COVID-19 vaccination and did not submit an application for an exemption from the requirement to be vaccinated in accordance with Directive 12/21.
  1. [6]
    On 10 January 2022, the Respondent commenced a disciplinary process with respect to the allegation that, "In contravention of a direction given to you by a responsible person, you have not received your second dose of a COVID-19 vaccine by 31 October 2021." The Respondent advised the Appellant of the belief that he may be liable to disciplinary findings pursuant to s 187(1)(d) of the Public Service Act 2008 (Qld) (the PS Act) and provided him with the opportunity to show cause why such a disciplinary finding should not be made (the Show Cause Notice).
  1. [7]
    On 23 March 2022, the Respondent determined that the allegation against the Appellant is substantiated on the balance of probabilities and advised that serious consideration was being given to the disciplinary action of "termination of employment" (the Disciplinary Finding Decision). The Appellant was given the opportunity to show cause why the proposed disciplinary action should not be taken. The Appellant responded on 30 March 2022.
  1. [8]
    By letter dated 6 July 2022, the Respondent advised the Appellant of the decision to terminate his employment with immediate effect (the Termination Decision).
  1. [9]
    On 4 August 2022, the Appellant filed an Appeal Notice with the Industrial Registry. Also on that date, the Respondent emailed the Industrial Registry to advise:

Mr Hurley’s employment was terminated on 7 July 2022. As such, he is no longer a public service employee and cannot bring a public service appeal. If Mr Hurley wishes to dispute his dismissal, he needs to file an application for reinstatement (as advised in the letter dated 6 July 2022).

CHQHHS also notes that any application for reinstatement was required to be filed by 28 July 2022, which was 21 days after he received the letter dated 6 July 2022.

  1. [10]
    On 5 August 2022, the Industrial Registry responded in the following terms:

We refer to the appeal filed by Mr Hurley on 4 August 2022 and Ms Davie’s correspondence below advising Mr Hurley’s employment was terminated on 7 July 2022. 

We note that reinstatement is not a remedy that can be obtained through the Public Service Appeal pathway.

Further, the attached Decision recently given by Deputy President Merrell concerns a matter where an appellant’s appeal was not heard because he was no longer a public service employee. His Honour’s reasons are explained in the Decision and Mr Hurley is asked to reflect on whether that is also the case here.

If Mr Hurley wishes to continue with his appeal, it will be necessary to provide written submissions on why the Commission should hear the appeal in circumstances where he is no longer employed. Alternatively, Mr Hurley may discontinue his appeal by filing a Form 27 Request to discontinue proceeding which can be accessed here: Forms | Queensland Industrial Relations (qirc.qld.gov.au).

Ms Davie advises that Mr Hurley was aware of his rights to file an Application for re-instatement in the event he wished to dispute his dismissal. Whilst it appears the deadline for filing that Application has passed, in the event that Mr Hurley wishes to file such an application, whether or not it is out of time and if so, whether it would be heard out of time, would first need to be decided by the Commission.

Mr Hurley, please provide a response by 4:00pm on 12 August 2022.  

  1. [11]
    The Appellant did not respond and so on 15 August 2022, the Industrial Registry sent further correspondence in the following terms:

We refer to the email below of 5 August 2022 in which the Industrial Registry requested that Mr Hurley respond by 12 August 2022 as to which course he intends to adopt, either:

  1. (1)
    Continue with the appeal (in which case Commissioner McLennan will issue directions  to the parties as to whether the appeal should be heard in circumstances where Mr Hurley is no longer employed); or
  2. (2)
    Discontinue the appeal.

Mr Hurley, please provide a response by 4:00pm tomorrow, 16 August 2022. If you do not advise the Commission of the action you will take by that time, the Commission will assume that you elect to press your appeal and will issue directions for parties to provide written submissions about that.

  1. [12]
    The Appellant did not respond and so on 24 August 2022, I issued a Directions Order requiring written submissions from both parties addressing whether the appeal should be heard in circumstances where the Appellant is no longer a public service employee. The Appellant did not comply with that Directions Order.
  1. [13]
    This appeal first requires the determination of two preliminary issues:
  • is the decision subject of this proceeding appealable under the PS Act? And
  • should the appeal be heard in circumstances where the Appellant is no longer a public service employee?
  1. [14]
    Section 562A(3)(b)(iii) of the Industrial Relations Act 2016 (the IR Act) provides that the Commission may decide it will not hear a public service appeal against a decision if the Commission reasonably believes, after asking the appellant to establish by oral or written submissions that the appellant has an arguable case for the appeal, that the appeal should not be heard for another compelling reason.
  1. [15]
    This is my decision about whether or not I should hear the appeal. For the reasons that follow, I decline to hear the appeal.

Is the decision subject of this proceeding appealable under the PS Act?

  1. [16]
    On p 3 of the Appeal Notice, the Appellant appears to identify two types of decision being appealed:

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

I am appealing a disciplinary declaration made in relation to my former employment with a Department/Agency. Date discipline decision takes effect: 06 / 07 / 2022

  1. [17]
    In the Appeal Notice, the Appellant states he is appealing "the decision of disciplinary action dated 6th July 2022 received by certified mail on 18th July 2022".  However, the Appellant also indicates he has attached a copy of the decision he is appealing and that he received that decision on 20 July 2022. There are numerous decisions attached to the Appeal Notice. As the Appellant failed to correspond with the Industrial Registry either on his own initiative or in response to the numerous emails and Directions Order, his position on the matter is unclear. However, based on the material before me, it appears the decision the Appellant is seeking to appeal is contained within the letter dated 6 July 2022 and that is the Termination Decision. 
  1. [18]
    Peculiarly, in the Appeal Notice the Appellant declares he is a permanent public service employee - which was inaccurate as he had been terminated prior to filing the Appeal Notice.
  1. [19]
    Section 194(1) of the PS Act prescribes the types of decisions against which an appeal may be made. Subsection (b) provides that an appeal may be made against:

(b) a decision under a disciplinary law to discipline—

  1. (i)
    a person (other than by termination of employment), including the action taken in disciplining the person; or
  1. (ii)
    a former public service employee by way of a disciplinary declaration made under section 188A, including if the disciplinary action that would have been taken was termination of employment;
  1. [20]
    From the materials filed, I cannot identify the existence of a "disciplinary declaration made in relation to" the Appellant's former employment and the Respondent disputes its existence in any event. Therefore, there is no discernible decision before me that could fall under s 194(1)(b)(ii) of the PS Act.
  1. [21]
    The disciplinary action imposed on the Appellant was termination and therefore s 194(1)(b)(i) of the PS Act does not apply either. The Termination Decision clearly advised the Appellant that in accordance with the IR Act, he may lodge an 'application for reinstatement' with the Commission within 21 calendar days of receipt of the letter. The Respondent reiterated this point in correspondence dated 4 August 2022 in which they advised the Appellant, "If Mr Hurley wishes to dispute his dismissal, he needs to file an application for reinstatement (as advised in the letter dated 6 July 2022)." The reasons for why the Appellant elected to file a public service appeal and to continue with the proceeding despite that advice will remain unclear because of his failure to respond to Registry emails and comply with Directions.
  1. [22]
    In light of the above, the decisions the Appellant seeks to appeal either do not exist (in the case of the disciplinary declaration) or are not appealable through this appeal pathway (in the case of the Termination Decision). That is a compelling reason not to hear this appeal pursuant to s 562A(3)(b)(iii) of the IR Act.
  1. [23]
    Even if I am wrong on this point and the Appellant was seeking to appeal another decision within the disciplinary process, I will now proceed to explain why I will not hear this appeal in light of the Appellant's dismissal.

Should the appeal be heard in circumstances where the Appellant is no longer a public service employee?

  1. [24]
    The Appellant indicated in his Appeal Notice that he seeks reinstatement – that is not a remedy available to him under the Public Service Appeal pathway.
  1. [25]
    Section 562C of 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.
  1. [26]
    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. [27]
    In Venables v State of Queensland (Queensland Health),[2] Deputy President Merrell considered the issue of whether to continue hearing an appeal in circumstances where the appellant was no longer a public service employee and relevantly provided:
  1. [20]
    Having considered the submissions of both Ms Venables and the Department, my view is that I should exercise my discretion and not hear Ms Venables' appeal. This is for the compelling reason that given that Ms Venables is no longer an employee, there can be no practical effect from any decision I make in respect of her appeal.
  1. [21]
    If I confirmed the decision appealed against, that decision can be of no effect on Ms Venables because her employment has been terminated.
  1. [22]
    Similarly, if I set the decision appealed against aside and substituted a new decision, namely, that Ms Venables should have been granted an exemption under the Directive, that decision can have no practical effect on Ms Venables because she is no longer an employee.
  1. [23]
    In my view, in general, the Commission's time should only be spent hearing and determining public service appeals where there will be some practical effect upon the employee's continued employment. In Ms Venables' case, any decision I make will have no practical effect on her continued employment.
  1. [24]
    This is a compelling reason not to hear Ms Venables' appeal.
  1. [28]
    I adopt his Honour's reasoning and similarly conclude that, in the event the Appellant was seeking to appeal some other decision that arose during the disciplinary process (i.e., the Disciplinary Finding Decision), there can be no practical effect from any decision I could make in respect of an appeal of that decision.
  1. [29]
    If I confirmed the decision appealed against, that decision can be of no effect on the Appellant because his employment has been terminated.
  1. [30]
    Similarly, if I set the decision appealed against aside and substituted a new decision, namely, that the disciplinary allegation should not have been substantiated, that decision can have no practical effect on the Appellant because he is no longer an employee.
  1. [31]
    I agree with his Honour's conclusion that the Commission's time should only be spent hearing public service appeals where there will be some practical effect upon the employee's continued employment. That is not the case here and that is a compelling reason not to hear the appeal.

Conclusion

  1. [32]
    For the reasons I have given, I decline to hear the appeal.

Order

  1. [33]
    I make the following order:

Pursuant to s 562A(3)(b)(iii) of the Industrial Relations Act 2016, the Appellant's appeal will not be heard.

Footnotes

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

[2] [2022] QIRC 137.

Close

Editorial Notes

  • Published Case Name:

    Hurley v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Hurley v State of Queensland (Queensland Health)

  • MNC:

    [2022] QIRC 406

  • Court:

    QIRC

  • Judge(s):

    McLennan IC

  • Date:

    25 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
Venables v State of Queensland (Queensland Health) [2022] QIRC 137
2 citations
Jump To
Cite 1 - [2022] QIRC 137
Cite 2 - [2022] QIRC 137

Cases Citing

No judgments on Queensland Judgments cite this judgment.

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