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  4. LP v State of Queensland (Queensland Health) - [2022] QIRC 432

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LP v State of Queensland (Queensland Health)[2022] QIRC 432

LP v State of Queensland (Queensland Health)[2022] QIRC 432

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

LP v State of Queensland (Queensland Health) [2022] QIRC 432

PARTIES:

LP

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

PSA/2022/92

PROCEEDING:

Public Service Appeal – Appeal against a suspension without pay decision 

Interlocutory Application – Application for suppression order

DELIVERED ON:

9 November 2022

MEMBER:

Hartigan IC

HEARD AT:

On the papers

ORDER

  1. 1.I prohibit the publication of the identity of the Appellant.
  2. 2.I direct that only the reasons for decision and orders excluding the Appellant's name be released by the Queensland Industrial Relations Commission.
  3. 3.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 – where appellant is appealing a decision of the respondent in relation to a suspension without pay decision – where appellant sought exemption from compliance with Health Employment Directive No 12/21 – where respondent considered application and individual circumstances against the purpose of vaccination requirements to protect employees, patients and the community – where appellant's exemption request rejected – where appellant was terminated from their employment –  appellant's appeal will not be heard.

EVIDENCE – MISCELLANEUOUS MATTERS – NON-PUBLICATION OF EVIDENCE – PARTICULAR CASES – application in existing proceedings for suppression order – where appellant seeks name suppression and publication suppression – where respondent does not oppose application  – where principles of open justice apply – consideration of principles of open justice and circumstances where Commission may exercise discretion to suppress identifying information – application for suppression order granted

LEGISLATION:

Industrial Relations Act 2016 (Qld), s 451, s 562 and s 580

Public Service Act 2008 (Qld), s 137, s 194 and s 197

Industrial Relations (Tribunals) Rules 2011 (Qld), r 97

CASES:

Australian Rail, Tram and Bus Industry Union of Employees v Aurizon Operations Ltd [2021] QIRC 263.

J v L & A Services Pty Ltd (No 2) [1995] 2 Qd R 10.

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

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

Reasons for Decision

Introduction

  1. [1]
    The Appellant was employed by the State of Queensland ('the Department'), in an AO3 position [position title redacted], [name of agency redacted] at the Mackay Base Hospital within the Mackay Hospital and Health Service ('MHHS').
  1. [2]
    The Appellant was an employee of the Department since approximately [date of commencement redacted].
  1. [3]
    This appeal has been commenced in the context of the Appellant allegedly failing to comply with a direction which required the Appellant to comply with the requirements of the Health Employment Directive No 12/21 – Employee COVID-19 vaccination requirements ('Directive 12/21'). Clause 8 of Directive 12/21 requires certain categories of employees to have received two doses of a COVID-19 vaccine and provide their line manager with evidence of confirmation of vaccination unless the employee has a valid exemption.[1]  Relevantly, the Appellant falls within one of those categories of employees that are required to comply with Directive 12/21.
  1. [4]
    The Appellant did not comply with Directive 12/21 and did not receive an exemption to Directive 12/21.
  1. [5]
    On 30 December 2021, the Department issued the Appellant a notice requiring her to show cause as to why a disciplinary finding should not be made against her in respect of her alleged failure to comply with the requirements of cl 8 of Directive 12/21. This notice also advised the Appellant that she would be suspended from duty on normal remuneration effective immediately and invited her to show cause as to why she should not be suspended without pay. 
  1. [6]
    On 19 January 2022, following receipt of a response from the Appellant, the Department determined to suspend the Appellant from duty without normal remuneration pursuant to s 137(1)(b) of the Public Service Act 2008 (Qld) ('the PS Act').
  1. [7]
    On 20 January 2022, the Appellant filed a notice of appeal in the Industrial Registry attaching the decision of the Department dated 30 December 2021 which determined, inter alia, to suspend the Appellant from duty on normal remuneration and provides as follows:

I have been suspended on full pay with the potential for suspension with no pay and the potential for subsequent termination of employment for not following a QLD Health directive at Mackay Hospital and Health Service (MHHS).

I believe I should not be suspended due to the following reasons:

A risk assessment has not been provided for a A03 [position title redacted] position working for Queensland Health.

In the Queensland Health, Suspension of Employees, Human Resources Policy E 14 (QH-POL-400) Consideration of Alternative Duties, it states, Before suspending an employee under section 137 of the Public Service Act, there is a legislative obligation that the delegate must consider all reasonable alternative duties the employee may be able to perform. The alternative duties do not have to form part of an established role and can be outside the employee's usual place of work. Prior to suspending an employee, consideration must also be given to (and is not limited to):

Temporary transfer to alternative duties (either in the employee's workplace or at another workplace) Working from home.

From 01/11/2021 I was given permission to work 100% from home given that a [position title redacted] role can be effectively carried out 100% from home. A [position title redacted] role can be, and is carried out, 100% from home for many Health Services.

In the past two months the MHHS had been seriously considering outsourcing [position title redacted] work to a company that provided 100% at-home [position title redacted] services and were only prevented in doing so due to a system issue.

There are no system issues preventing me from continuing to carry out my role 100% from home for QLD Health.

Working 100% from home also poses no health risk to colleagues, patients, and the general public, but also given that COVID-19 double vaccinated people are still contracting COVID-19, myself and my family's health risks are also minimised.

The Queensland Health website also states the following: Critical Workforce Shortage

17. The responsible person for a healthcare setting may permit a worker in healthcare who has not complied with the COVID-19 vaccination requirements to enter, work in, or provide services in the healthcare setting, for a maximum period of three months from 17 December 2021 or until the critical workforce shortage can be resolved.

[position title redacted] at MHHS has reached an all-time high critical status which is impacting on patient care and safety.

I do not believe MHHS, QH have seriously considered that my [position title redacted] role can be carried out effectively and efficiently 100% based from home, as I had been doing so from 01/11/2021 and I do not believe that suspension is a fair and reasonable decision based on the above.

  1. [8]
    Essentially, the Appellant argues that she should be permitted to work from home to avoid her obligation to comply with Directive 12/21.
  1. [9]
    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 IR Act by the Queensland Industrial Relations Commission.
  1. [10]
    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.[2] Section 562B(3) of 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. [11]
    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.[3] 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.[4]
  1. [12]
    During the course of the appeal, the Appellant filed an application seeking the suppression of her identity, it is convenient to deal with the application at first instance before I consider the substance of the appeal.

Application for suppression order

  1. [13]
    On 20 April 2022, the Appellant filed an application seeking that her identifying information be suppressed from publication by the Queensland Industrial Relations Commission in relation to an appeal brought pursuant to s 194(1)(bb) of the PS Act.
  1. [14]
    The Appellant relies on the following grounds in support of the application:

Due to the disclosure of deeply private and personal information contained in my Appeal regarding [personal circumstances redacted] being the basis of not following a Queensland Health directive, I am applying for name suppression in relation to my Appeal, PSA/2022/92.

This was an extremely private and traumatic time for me and I would like to request my privacy be respected and considered. I have not shared this information with work colleagues, or some friends and family members and I do not believe this information should be available to the general public.

  1. [15]
    Directions were issued requiring the parties to provide written submissions with respect to the Appellant's suppression order. The Respondent did not file any submission with respect to the application but did send email correspondence on 7 May 2022, indicating that it did not object to the application.
  1. [16]
    The Appellant bears the onus of demonstrating that circumstances exists which would justify the making of the proposed suppression order.

Relevant legislation and authorities

  1. [17]
    Section 451 of the Industrial Relations Act 2016 (Qld) ('the IR Act') bestows general powers on the commission, and relevantly provides:

451  General powers

  1. (1)
    The commission has the power to do all things necessary or convenient to be done for the performance of its functions.
  2. (2)
    Without limiting subsection (1), the commission in proceedings may—

…

  1. (c)
    make an order it considers appropriate.
  1. [18]
    Section 580 of the IR Act provides for the directions the commission may give in respect of confidential material and is set out in the following relevant terms:

580  Confidential material tendered in evidence

…

  1. (5)
    The court, commission or registrar may direct—
  1. (a)
    a report, or part of a report, of proceedings in an industrial cause not be published; or
  2. (b)
    evidence given, records tendered or things exhibited in proceedings for an industrial cause be withheld from release or search.

…

  1. (7)
    The direction may be given if the court, commission or registrar considers —
  1. (a)
    disclosure of the matter would not be in the public interest; or
  2. (b)
    persons, other than parties to the cause, do not have a sufficient legitimate interest in being informed of the matter.
  1. [19]
    Rule 97 of the Industrial Relations (Tribunals) Rules 2011 (Qld) ('the IR Rules') provides the Commission with a power to de-identify judgements and redact information for judgements if there is good reason to do so. Rule 97 relevantly provides as follows:

97  Publishing decisions etc.

  1. (1)
    The registrar may publish on the QIRC website –
  1. (a)
    a decision of the court, commission, or registrar; and
  2. (b)
    the notice of the making or the amended of a bargaining instrument
  1. (2)
    The registrar must, if the commission directs, publish an amendment of an instrument on the QIRC website.

Note -

For other documents the registrar must publish on the QIRC website, see sections 160, 215, 230 and 459 of the Act.

  1. (3)
    The court, commission or registrar may, in the public interest or for another reason the court, commission or registrar considers appropriate –
  1. (a)
    withhold publication of a document; or
  2. (b)
    modify a document, before publication, in a way that does not affect the essence of the document.
  1. [20]
    The Queensland Court of Appeal in the case of J v L & A Services Pty Ltd (No 2),[5] ('J v L& A Services Pty Ltd') established six principles governing the exercise of discretion to issue suppression orders which are as follows:
  1. Although there is a public interest in avoiding and minimising disadvantages to private citizens from public activities, paramount public interest in the due administration of justice, freedom of speech, a free media and an open society require that court proceedings are able to be reported and discussed publicly.
  2. The public may be excluded and publicity prohibited when public access or publicity would frustrate the purpose of a court proceeding by preventing the effective enforcement of some substantive law and depriving the court's decision of practical utility…
  3. The permitted exceptions to the requirement of open justice are not based upon the premise that parties would be reasonably deterred from bringing court proceedings by an apprehension that public access or publicity would deprive the proceeding of practical utility, but upon the actual loss of utility which would occur, and the exceptions do not extend to proceedings which parties would be reasonably deterred from bringing if the utility of the proceedings would not be affected. Courts do not have access to the information needed to determine whether or not parties are reasonably deterred by openness or publicity from bringing particular kinds of proceedings; for example, sexual complaints. Legislatures are better equipped than courts to make informed decisions on such matters.
  4. No unnecessary restriction upon public access or publicity in respect of court proceedings is permissible.
  5. Different degrees of restraint are permissible for different purposes. Although the categories tend to coalesce, they are broadly as follows:
  1. (a)
    Exclusion of the public or a substantive restraint upon publicity is not permissible unless abstractly essential to the practical utility of a proceeding; for example, prosecutions for blackmail or proceedings for the legitimate protection of confidential information…
  2. (b)
    A limited exclusion or restraint is permissible if necessary to ensure that a proceeding is fair; for example, witnesses may be required to absent themselves from hearings, parts of jury trials may take place in the absence of the jury and limited or temporary restrictions on publicity may be imposed during the course of jury proceedings.
  3. (c)
    An incidental, procedural restriction is permissible if necessary in the interests of a party or witness in a particular proceeding; for example, identities of witnesses or details of particular activities which are not directly material such as engaging in covert law enforcement operations or providing information to police may be suppressed.
  1. ... information may not be withheld from the public merely to save a party or witness from loss of privacy, embarrassment, distress, financial harm, or other 'collateral disadvantage', to use the expression adopted in R. v. Tait. Additionally, when it is the interests of a party or a witness which is relied on as the basis for a proposed restraint, those considerations must be balanced against other factors, including the interests of others involved in the proceeding and others who may be affected. Open justice is non-discriminatory, whereas exceptions to the principle of open justice deny equal rights to the disputing litigants and provide a benefit to some litigants which is unavailable to members of the general public…
  1. [21]
    In Australian Rail, Tram and Bus Industry Union of Employees v Aurizon Operations Ltd[6]('Aurizon') the respondent sought to have the names of the individual workers who were involved in the dispute to be de-identified. The application was supported by the applicant union. His Honour, O'Connor VP relevantly held as follows:
  1. [40]
    The starting point in considering an application to suppress or to withhold names of witnesses or parties is a fundamental principle of open justice; ‘that justice should not only be done but should manifestly and undoubtedly be seen to be done’. This is a central feature of the administration of justice under the common law.
  2. [41]
    The open justice principle operates not only as an overarching principle guiding judicial decision-making and various aspects of procedure, it also gives rise to a number of substantive open justice rules that, in the usual course of events, a court must follow. Such rules include: first, that judicial proceedings are conducted, and decisions pronounced, in ‘open court’; second, that evidence is communicated publicly to those present in the court; and third, that nothing should be done to discourage the making of fair and accurate reports of judicial proceedings, including by the media.
  3. [42]
    However, the rules to which the open justice principle gives rise are not absolute. Whilst the principles of open justice will usually require the publication of the names of those involved in the proceedings, there are numerous statutory exceptions.
  4. [43]
    The Commission has the power to de-identify judgments and redact information from judgments if there is a good reason to do so.  Rule 97 of the Industrial Relations (Tribunals) Rules 2011 (Qld) recognises that power.

…

  1. [44]
    It is accepted that the discretion to anonymise a decision might be exercised in favour of not identifying persons who are the victim of sexual assault or discrimination, children, or persons whose private financial affairs are relevant to a decision. It is also accepted that the discretion may be exercised in circumstances where it is necessary to avoid prejudice to the administration of justice in particular proceedings or to avoid some other relevant harm.
  2. [45]
    In my opinion, the application to withhold the names of the two workers can be best explained on the basis that in the absence of a restriction on publicity, damage will be caused to the individuals to such an extent and of such a kind as requiring some relief, in the interests of justice
  3. [46]
    As was observed by Mahoney J in John Fairfax Group Pty Ltd v The Local Court of New South Wales, these are the 'unacceptable' consequences that sometimes arise in litigation. Of course, as observed by Pincus JA in J v L A Services Pty Ltd (No 2), 'there is a balancing exercise involved, with an initial heavy weighting in favour of publicity – an exercise involving considerations of fairness'.

(citations omitted)

The Appellant's submissions

  1. [22]
    In the Appellant's written submissions,[7] the Appellant has made a request for 'name suppression/publication suppression'.
  1. [23]
    The Appellant submits that the information disclosed in her exemption application is deeply personal and was disclosed confidentially in circumstances where the health directive, namely Directive 12/21, put her in a position where the Appellant had to disclose such information.
  1. [24]
    The Appellant submits that the personal information contained in her exemption application has not been disclosed to some of her family, friends or work colleagues, and submits that she does not 'see it appropriate that the general public have access to [her] personal circumstances'.
  1. [25]
    The Appellant further submits in support of the application for suppression orders that she and her children are the subject of a domestic violence order, and that any information that is shared publicly in relation to the Appellant puts both the Appellant and her children at risk.

Consideration

  1. [26]
    At the outset, I note that the Department does not oppose the application for suppression orders sought by the Appellant.[8]
  1. [27]
    The Appellant is seeking the suppression/nonpublication order on the following grounds:
  1. (a)
    the Appellant was required to disclose personal information to her employer that she has not disclosed with some family members, friends and colleagues and she does not consider it appropriate that the general public have access to her personal information; and
  2. (b)
    the Appellant and her children are the subject of a domestic violence order, and the Appellant is concerned for her safety and the safety of her children should her identifying information be published.
  1. [28]
    The orders sought by the Appellant include that any publication by the Queensland Industrial Relations Commission of the Appellant's name be suppressed.
  1. [29]
    In the circumstances of this matter, taking into account the disclosure of the Appellant's personal medical information and because of the existence of a domestic violence order involving the Appellant, I consider that it is appropriate to issue an order suppressing the Appellant's identifying information. I consider that such information should include the Appellant's name and position held.
  1. [30]
    Before addressing the substance of the appeal, I must also be satisfied that the appeal is one which is able to be heard.

Jurisdictional objection

  1. [31]
    Directions were issued by the Commission requiring the parties to file written submissions in support of their position with respect to the appeal.
  1. [32]
    Both parties complied with the directions.
  1. [33]
    In the Appellant's written submissions,[9] the Appellant confirms that she was suspended without pay on 19 January 2022 and details reasons as to why she considers she should not be suspended. Essentially, the Appellant argues that the decision maker failed to consider alternative positions or to consider that she work from home to avoid the obligation to comply with Directive 12/21.
  1. [34]
    In the Department's written submissions,[10] the Department raised a jurisdictional objection to the appeal on the basis that the decision which the Appellant sought to appeal is not a decision which can be appealed under the PS Act.
  1. [35]
    The Appellant filed submissions in reply[11] which stated, inter alia:

I was of the understanding that I had 21 days to lodge a Form 89 Appeal Notice with Queensland Industrial Relations Commission once I had been suspended with pay, that being 30 December 2021. Given that I was then further suspended without remuneration on the 19 January 2022, within the 21-day timeframe that I had been given, I am unsure how this further suspension without remuneration is to be addressed? Could you please advise?

  1. [36]
    On 25 March 2022, the matter was listed for a mention to address the jurisdictional objection raised by the Respondent.
  1. [37]
    During the mention, it was brought to the Commission's attention that the Appellant had in fact been suspended without remuneration on 19 January 2022[12], which predates the filing of the appeal.
  1. [38]
    Consequently, the Commission issued further directions requiring the Department to file written submissions clarifying their position with respect to the jurisdictional objection and also providing the Appellant with an opportunity to respond.
  1. [39]
    Both parties complied with the further directions.

Employment status of the Appellant

  1. [40]
    On 13 June 2022, the matter was listed again for a mention to address email correspondence received by the Industrial Registry from the Appellant advising that her employment with the Respondent was terminated on 31 May 2022.
  1. [41]
    The Commission issued directions in the mention requiring the Appellant to advise the Industrial Registry if she wished to proceed with the Appeal by 20 June 2022. The Appellant was advised that if she indicated that she wished to proceed with the appeal then she would be asked to show cause why the appeal should be heard given the employment had ceased.
  1. [42]
    The Appellant did not comply with the direction and no further communication has been received from the Appellant.
  1. [43]
    Section 562A(3) of the IR Act provides for circumstances where the Commission may decide not to hear a particular public service appeal as follows:

562A  Commission may decide not to hear a particular public service appeals

-

  1. (3)
    The commission may decide it will not hear a public service appeal against a decision if—
  1. (a)
    the appellant has made an application to a court or tribunal relating to the decision, whether or not the application has been fully decided; or
  2. (b)
    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—
  1. (i)
    is frivolous or vexatious; or
  2. (ii)
    is misconceived or lacks substance; or
  3. (iii)
    should not be heard for another compelling reason.

…

  1. [44]
    Relevantly, the subject matter of this appeal relates to the decision to suspend the Appellant from duty without remuneration. The powers of the Commission, in respect of the orders it may make in relation to this appeal, include the power to confirm the decision appealed against or to set aside the decision appealed against and substitute it with another decision or return the matter to the decision maker.
  1. [45]
    I consider that the factual progression of this matter, that included the show cause process which resulted in the termination of the Appellant's employment and the grounds relied upon by the Appellant, result in there being limited utility in me hearing this appeal.
  1. [46]
    Having regard to the history of the matter, the subject matter of the decision subject to this appeal and the termination of the Appellant's employment together with the limited effect (given the termination of the employment) of any potential orders I may make, it is my view that I should exercise my discretion and not hear the Appellant's appeal.
  1. [47]
    Whilst, I have considered the consequences to the Appellant if I refuse to hear the appeal, including that the Appellant will lose the opportunity to seek the relief sought in the notice of appeal, I consider that the reasons referred to above are compelling reasons as to why I should decline to hear the appeal.

Order

  1. [48]
    I make the following order:
  1. 1.I prohibit the publication of the identity of the Appellant.
  2. 2.I direct that only the reasons for decision and orders excluding the Appellant's name be released by the Queensland Industrial Relations Commission.
  3. 3.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 – Employee COVID-19 vaccination requirements, cls 1, 7.1 and 8.1. 

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

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

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

[5][1993] QCA 012; [1995] 2 Qd R 10.

[6] [2021] QIRC 263 [40] – [46].

[7] Filed on 28 April 2022.

[8] Email correspondence received by the Industrial Registry from the Respondent dated 7 May 2022.

[9] Filed on 3 February 2022.

[10] Filed on 11 February 2022.

[11] Filed on 17 February 2022

[12] T1 -3, ll 43 – 46.

Close

Editorial Notes

  • Published Case Name:

    LP v State of Queensland (Queensland Health)

  • Shortened Case Name:

    LP v State of Queensland (Queensland Health)

  • MNC:

    [2022] QIRC 432

  • Court:

    QIRC

  • Judge(s):

    Hartigan IC

  • Date:

    09 Nov 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
Australian Rail, Tram and Bus Industry Union of Employees v Aurizon Operations Ltd [2021] QIRC 263
2 citations
Jump To
Cite 1 - [2021] QIRC 263
Cite 2 - [2021] QIRC 263
Brandy v Human Rights & Equal Opportunity Commission (1995) 183 CLR 245
2 citations
Jump To
Cite 1 - (1995) 183 CLR 245
Cite 2 - (1995) 183 CLR 245
Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10
2 citations
Jump To
Cite 1 - [1995] HCA 10
Cite 2 - [1995] HCA 10
Goodall v State of Queensland [2018] QSC 319
2 citations
Jump To
Cite 1 - [2018] QSC 319
Cite 2 - [2018] QSC 319
J v L & A Services Pty Ltd[1995] 2 Qd R 10; [1993] QCA 12
3 citations
Jump To
Cite 1 - [1993] QCA 12
Cite 2 - [1995] 2 Qd R 10
Cite 3 - [1995] 2 Qd R 10

Cases Citing

Case NameFull CitationFrequency
LP v State of Queensland (Queensland Health) (No. 2) [2023] QIRC 825 citations
Patterson v State of Queensland (Queensland Corrective Services) [2024] QIRC 1932 citations
TB v State of Queensland (Queensland Health) (No. 2) [2025] QIRC 1402 citations
1

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