Shield v State of Queensland (Queensland Ambulance Service)
[2022] QIRC 439
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- Unreported Judgment
- Shield v State of Queensland (Queensland Ambulance Service)[2022] QIRC 439
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Shield v State of Queensland (Queensland Ambulance Service)[2022] QIRC 439
Shield v State of Queensland (Queensland Ambulance Service)[2022] QIRC 439
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Shield v State of Queensland (Queensland Ambulance Service) [2022] QIRC 439 |
PARTIES: | Shield, Lindon (Appellant) v State of Queensland (Queensland Ambulance Service) (Respondent) |
CASE NO.: | PSA/2022/636 |
PROCEEDING: | Public Service Appeal – appeal against a suspension without pay decision |
DELIVERED ON: | 14 November 2022 |
MEMBER: | Power IC |
HEARD AT: | On the papers |
ORDER: | Pursuant to s 562A(3)(b)(iii) of the Industrial Relations Act 2016 (Qld), this appeal will not be heard. |
CATCHWORDS: | PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – Public Service Appeal – appeal against a suspension without pay decision – appeal lodged out of time – whether extension of time should be granted – where appellant terminated from employment – whether appeal should be heard |
LEGISLATION: | Industrial Relations Act 2016 (Qld), ss 562A and 564 Public Service Act 2008 (Qld), s 194 |
CASES: | A1 Rubber (Aust) Pty Ltd v Chapman (Office of Industrial Relations) [2019] ICQ 16 Blackie v State of Queensland (Queensland Police Service) [2022] QIRC 085 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Bruce Anthony Piggott v State of Queensland [2010] ICQ 35 Casson v State of Queensland (Queensland Police Service) [2022] QIRC 113 Chapman v State of Queensland [2003] QCA 172 Rae v State of Queensland (Queensland Health) [2022] QIRC 160 Rudd v State of Queensland (Queensland Health) [2022] QIRC 323 Venables v State of Queensland (Queensland Health) [2022] QIRC 137 Wantling v Department of Community Safety (Queensland Corrective services) [2013] QIRC 43 |
Reasons for Decision
Introduction
- [1]Mr Lindon Shield ('the Appellant') was employed by the State of Queensland (Queensland Ambulance Service) ('the Respondent') as an Advanced Care Paramedic within the Sunshine Coast and Wide Bay Region.
- [2]On 13 September 2021, the QAS Human Resource Procedure – COVID-19 Vaccine Requirements ('the Procedure') was published. The Procedure required all existing and prospective employees who fall within a 'high risk group'[1] to receive the first dose of a COVID-19 vaccine by 30 September 2021 and a second dose of a COVID-19 vaccine by 31 October 2021. The Procedure provides that vaccination requirements detailed within the Procedure are a mandatory condition of employment.
- [3]The Procedure provides that an exemption application will be considered where the employee has a recognised medical contraindication, the employee has a genuinely held religious belief and/or where another exceptional circumstance exists.[2]
- [4]On 31 January 2022, the Procedure was replaced by the QAS Human Resources Policy – Employee COVID-19 Vaccination Requirements ('the Policy'), which required that all existing and prospective employees must have received the first and second dose of a COVID-19 vaccine by 27 February 2022.
- [5]The Policy provides for the same basis as the Procedure upon which an exemption to the vaccination requirements could be considered.
- [6]The Appellant applied for an exemption to the mandatory vaccination requirements of the Policy, however, the application was declined on 4 March 2022. The Appellant subsequently requested for an internal review of that decision on 16 March 2022.
- [7]By letter dated 12 May 2022, Mr John Hammond, Acting Assistant Commissioner, Strategic Operations, confirmed the decision of 4 March 2022 in declining the Appellant's application for an exemption. The letter further informed the Appellant that, following the declination of his exemption application, he would be placed on leave without pay effective from 16 May 2022. The Appellant was provided with the opportunity to submit a request for access to his leave entitlements.
- [8]By appeal notice filed on 28 June 2022, the Appellant appealed against the decision to place him on leave without pay ('the decision'), pursuant to s 194 of the Public Service Act 2008 (Qld). Directions were issued on 11 July 2022 for parties to file submissions with respect to the appeal.
- [9]Both parties filed submissions in accordance with the directions order dated 11 July 2022.
- [10]On 22 August 2022, the Respondent informed the Commission that the Appellant's employment had been terminated. Correspondence was subsequently sent to the Appellant by the Industrial Registry, requesting that he advise whether he intended on proceeding with the appeal by 31 August 2022.
- [11]No response was received by 31 August 2022. On 6 September 2022, further directions were issued to parties, directing parties to file submissions as to whether the appeal should be heard pursuant to s 562A(3)(b)(iii) of the Industrial Relations Act 2016 ('the IR Act'). Section 562A(3)(b)(iii) of the IR Act relevantly provides:
562ACommission may decide not to hear particular public service appeals
…
- (3)The commission may decide it will not hear a public service appeal against a decision if—
…
- (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—
…
- (iii)should not be heard for another compelling reason.
- [12]For the reasons contained herein, the appeal will not be heard.
Appellant's submissions
- [13]The Appellant did not file any submissions in accordance with the further directions.
Respondent's submissions
- [14]The Respondent submits that a number of compelling reasons exists as to why the appeal should not be heard. Those reasons include:
- (a)the Appellant's failure to comply with directions;
- (b)the Appellant's failure in filing the appeal within the 21 day statutory time limitation; and
- (c)that the Appellant's termination was for failing to comply with a lawful direction.
- [15]The Respondent further refers to and relies on the decision of Deputy President Merrell in Venables v State of Queensland (Queensland Health) ('Venables'),[3] submitting that any decision made will have no practical effect on his continued employment given that he has been terminated.
Consideration
- [16]This appeal was filed against a decision to place the Appellant on leave without pay following the decision confirming the declination of the Appellant's application for an exemption. The appeal was filed outside the 21 day statutory time period.
- [17]Section 564 of the IR Act provides for the time limit for appeal:
564Time limit for appeal
- (1)An appeal against a decision to an industrial tribunal must be started, as required under the rules, within the appeal period.
- (2)However, on an application made during or after the appeal period, the industrial tribunal may allow an appeal to be started within a longer period.
- (3)In this section—
appeal period, for an appeal against a decision to an industrial tribunal, means the period within 21 days after—
- (a)if the decision is given at a hearing—the announcement of the decision at the hearing; or
- (b)if the decision is given through the registrar—the release of the decision; or
- (c)if the decision is a promotion decision—the decision is publicly notified under the Public Service Act 2008; or
- (d)if, under another Act, the decision is given in another way—the decision is given in the other way.
- [18]
On an application to extend time, the approach of this Court was described by President Hall in the Neophytos Foundadjis v Collin Bailey [2007] ICQ 10 in the following way:
"This Court has traditionally adhered to the view that s. 346 of the Industrial Relations Act 1999 represents a legislative assessment that in the ordinary category of cases, justice will best be served by adhering to a 21 day limitation period, though on occasion the limitation may defeat a perfectly good case and that the discretion to extend time should be exercised only where the applicant for an extension of time discharges a positive burden of demonstrating that the justice of the case requires the indulgence of a further period."
- [19]The matters to be considered when exercising the discretion were outlined in A1 Rubber, where President Martin J stated:
In order to be successful, an applicant must ordinarily discharge the burden in three ways: first, the applicant must demonstrate that the justice of the case requires the indulgence sought; secondly, the applicant must demonstrate that the case sought to be appealed has prospects of success; thirdly, there must be an explanation of the delay between the expiry of the time period and the time at which the application was filed…[6]
Explanation for delay
- [20]The decision relevant to this appeal was made on 12 May 2022. The appeal was filed on 28 June 2022 and was therefore filed 26 days beyond the 21 day time limitation period. This is a significant delay beyond the statutory timeframe.
- [21]In responding to the decision, the Appellant had initially advised the Respondent that he did not intend to appeal the decision, stating:
… I will NOT, and can NOT, proceed in good conscience with following your direction at this time, and will remain on leave without pay effective from Monday, 16 May 2022, until further notice …
… I have given measured consideration for external review and my predisposition is NOT to lodge a public service appeal at present.
- [22]In the appeal notice, the Appellant stated the following:
… Prior to, and subsequently, being notified 12 May 2022, of impending LWOP, commencing 16 May 2022, I have been dealing with marital divorce, which has consumed my time, energy and attention. Only now am I finding opportunity to respond to my employer's unreasonable expectation and submit an appeal.
- [23]The Appellant did not provide any further explanation as to the reason the appeal had been filed out of time. If the Appellant had addressed the out of time issue in submissions, it may have been possible to assess the impact of the Appellant's circumstances on his ability to file an appeal within time. In the absence of further submissions, I am unable to conclude that an adequate explanation has been provided for the delay.
- [24]In circumstances where the statutory time period is 21 days, the delay of 26 days in filing this appeal is significant. The parliament has legislated a 21 day time period for an appeal to be filed and the existence of compelling reasons for any delay are required to extend this timeframe. Such reasons are not evident in this matter.
Prospects of success
- [25]
…In determining whether it is proper to grant the extension, it is appropriate to consider the merits of the substantive application… An extension of time will not be granted if the court considers the appeal to be plainly hopeless…
- [26]The 21 day time limit should not easily be dispensed with, and where it appears that the Appellant has no, or very limited, prospects of success, the Commission would not normally grant an extension of time.[8] Having considered the material before me, I am not of the view that this appeal has good prospects of success.
- [27]The consequence of the Chief Health Officer's Direction was that the Appellant was unable to attend work as a result of his vaccination status. This Commission has determined in a number of similar matters that employees may reasonably be suspended without remuneration following a failure to comply with the relevant policy mandating the receipt of COVID-19 vaccinations.[9] There is no material before me to indicate a different outcome would be arrived at in this matter.
- [28]Similarly, whilst the Appellant's views on the vaccination mandate were made clear to the decision maker, no material has been provided to the Commission to support a determination that the decision to confirm the declination of the Appellant's application for an exemption was not fair and reasonable.
- [29]In consideration of the above, I am of the view that the appeal has limited prospects of success.
Justice of the case
- [30]The prejudice to the Respondent in allowing the appeal is that it will not be able to rely upon the statutory time limit, despite advising the Appellant of his appeal rights and specifically noting that time limits applied.
- [31]The prejudice to the Appellant will be that the appeal against the decision will not be subject to independent consideration, however, as noted above, I consider the prospects of success in this matter to be limited.
- [32]As considered in Wantling v Department of Community Safety (Queensland Corrective services),[10] the statutory time limit should only be departed from in the most compelling of circumstances. I am not persuaded that such circumstances exist in this matter. In these circumstances, I am not of the view that the justice of the case requires an extension of the statutory timeframe.
Conclusion
- [33]The Appellant was dismissed from employment on 22 August 2022. In circumstances where the Appellant is no longer a public service employee, there is no utility in allowing this appeal to progress. A decision to either set aside the Respondent's decision, or to confirm the decision appealed against, will have no practical effect as the Appellant is no longer employed by the Respondent.
- [34]In Venables, Deputy President Merrell considered a matter concerning a former employee in similar factual circumstance to that of the Appellant. Deputy President Merrell made the following determination:
… 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.
- [35]In circumstances where the Appellant:
- (a)has filed the appeal outside of the statutory time period, in circumstances that do not warrant an extension as outlined above;
- (b)has declined to comply with directions to file submissions as to why this appeal should be heard; and
- (c)is no longer employed by the Respondent.
I am not of the view that this matter should proceed for determination.
- [36]Accordingly, I decline to hear the Appellant's appeal against the decision.
Order
- [37]I make the following order:
Pursuant to s 562A(3)(b)(iii) of the Industrial Relations Act 2016 (Qld), this appeal will not be heard.
Footnotes
[1]'High risk group' is identified under cl 3.3.2 of the Procedure.
[2]The Procedure, cl 3.6.2.
[3][2022] QIRC 137.
[4]Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541.
[5][2019] ICQ 16, 2.
[6]Ibid.
[7][2003] QCA 172, [3].
[8]Bruce Anthony Piggott v State of Queensland [2010] ICQ 35.
[9]See e.g., Rudd v State of Queensland (Queensland Health) [2022] QIRC 323; Blackie v State of Queensland (Queensland Police Service) [2022] QIRC 085; Casson v State of Queensland (Queensland Police Service) [2022] QIRC 113; Rae v State of Queensland (Queensland Health) [2022] QIRC 160.
[10][2013] QIRC 43.