Mackenzie v State of Queensland (Queensland Health)
[2023] QIRC 121
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- Unreported Judgment
- Mackenzie v State of Queensland (Queensland Health)[2023] QIRC 121
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Mackenzie v State of Queensland (Queensland Health)[2023] QIRC 121
Mackenzie v State of Queensland (Queensland Health)[2023] QIRC 121
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Mackenzie v State of Queensland (Queensland Health) [2023] QIRC 121 |
PARTIES: | Mackenzie, Beverley (Applicant) v State of Queensland (Queensland Health) (Respondent) |
CASE NO: | TD/2022/133 |
PROCEEDING: | Application for Reinstatement Referral to Full Bench on Commissioner's own initiative |
DELIVERED ON: | 5 May 2023 |
HEARING DATE: | 21 April 2023 |
FULL BENCH: | Davis J, President O'Connor, Vice President Dwyer, Industrial Commissioner |
ORDER: |
|
CATCHWORDS: | INDUSTRIAL LAW – QUEENSLAND – DISMISSALS – UNFAIR DISMISSAL – application for reinstatement – where matter referred to Full Bench – where application in existing proceedings for matter to be dismissed – where Health Employment Directive 12/21 (HED12/21) issued under s 51A of the Hospital and Health Boards Act 2011 – whether HED 12/21 inconsistent with the Anti‑Discrimination Act 1991 (Qld) and/or Human Rights Act 2019 (Qld) – whether respondent had obligation to consult with the applicant under the Work Health and Safety Act 2011 (Qld) – where applicant failed to comply with directive – where applicant failed to articulate dismissal unfair – whether further proceedings necessary or desirable in the public interest – application for reinstatement struck out – further orders issued in application for costs. |
LEGISLATION & OTHER INSTRUMENTS: | Anti-Discrimination Act 1991 (Qld) Hospital and Health Boards Act 2011 (Qld), s 15, s 19, s 51A, s 51B, s 51E, s 66 Human Rights Act 2019 (Qld), s 17 Industrial Relations Act 2016 (Qld), s 316, s 317, s 320, s 541 Industrial Relations Act 1999, s 331 Public Health Act 2005, s 362B Public Service Act 2008, s 187 Work Health and Safety Act 2011 (Qld) Workplace Relations Act 1996 (Cth), s 170CG Health Employment Directive No 12/21 - Employee COVID-19 vaccination requirements, cl 1, cl 6, cl 7.1, cl 8, cl 10 |
CASES: | Brasell-Dellow & Ors v State of Queensland, (Queensland Police Service) & Ors [2021] QIRC 356 Borough v State of Queensland (Department of Environment and Science) [2022] QIRC 357 Byrne v Australian Airlines Limited (1995) 185 CLR 410 Campbell v State of Queensland (Department of Justice and Attorney-General [2019] ICQ 18 Galletly v State of Queensland (Queensland Health) [2023] QIRC 040 G A Stewart v University of Melbourne [2000] AIRC 779 Makita (Australia) Pty Ltd v Sprowles [2001] NSWLR 705 Mocnik & Others v State of Queensland (Queensland Health) [2023] QIRC 058 R v Dunlop Rubber Australia Ltd; Ex parte Federated Miscellaneous Workers' Union of Australia (1957) 97 CLR 71 Regional Express Holdings Limited v Australian Federation of Air Pilots (2017) 262 CLR 456 Sainty v State of Queensland (Queensland Health) (No. 2) [2023] QIRC 078 State of Queensland v Lockhart [2014] ICQ 006 Tween v Qantas Airways Limited [2022] FWC 1594 |
APPEARANCES: | Mr M Bonaccorso for the Applicant. Mr L Grant, Counsel, Crown Law for the Respondent. |
Reasons for Decision
- [1]On 21 April 2023, the Full Bench heard and determined an application by the State of Queensland (Queensland Health) ('the Respondent') to dismiss an Application for Reinstatement filed by Ms Beverley Mackenzie ('the Applicant') on 12 April 2022 (TD/2022/133).
- [2]The Full Bench made the following orders:
- Pursuant to s 541 of the Industrial Relations Act 2016, the application commencing proceedings in TD/2022/133 filed in the Industrial Registry on 12 April 2022, is struck out.
- All questions of costs are reserved.
- Written reasons will be published in due course.
- [3]The following are our reasons for decision.
Application to strike out
- [4]The Applicant's employment was terminated because of her failure to comply with a direction issued to her by a responsible person, to receive or provide evidence of receiving two doses of a COVID-19 vaccine.
- [5]The Respondent applies to the Commission for the following orders:
- an order pursuant to s 541(b)(ii) of the Industrial Relations Act 2016 striking out or dismissing the Applicant's Application in its entirety on the basis that further proceedings by the Commission are not necessary or desirable in the public interest; and
- all questions of costs of and incidental to the proceeding be reserved; and
- any other orders that the Commission deems appropriate.
- [6]The Respondent seeks the orders in circumstances where:
- the Application is based on grounds previously (and thoroughly) advanced and determined by the Commission, and are matters now well settled against the Applicant; and
- the Applicant does not raise any unique circumstances in her application or in her reasons for refusing to be vaccinated that would merit the use of the Commission's resources to hear her application.
- [7]The Applicant opposes the application to dismiss and submits that her case proceed to hearing.
Legislation
- [8]The application for reinstatement is filed under s 317 of the Industrial Relations Act 2016 ('the IR Act') which appears in Division 2, Part 2 of Chapter 8, 'Unfair dismissals'. Section 316, which is the first section in Division 2, provides as follows:
316 When is a dismissal unfair
A dismissal is unfair if it is harsh, unjust or unreasonable.
- [9]The matters which the Commission must consider when deciding whether a dismissal was unfair are set out in s 320 of the IR Act as follows:
320 Matters to be considered in deciding an application
In deciding whether a dismissal was harsh, unjust or unreasonable, the commission must consider -
- (a)whether the employee was notified of the reason for dismissal; and
- (b)whether the dismissal related to -
- (i)the operational requirements of the employer's undertaking, establishment or service; or
- (ii)the employee's conduct, capacity or performance; and
- (c)if the dismissal relates to the employee's conduct, capacity or performance -
- (i)whether the employee had been warned about the conduct, capacity or performance; or
- (ii)whether the employee was given an opportunity to respond to the claim about the conduct, capacity or performance; and
- (d)any other matters the commission considers relevant.
- [10]Section 541 of the IR Act relevantly provides:
541 Decisions generally
The court or commission may, in an industrial cause do any of the following -
…
- (b)dismiss the cause, or refrain from hearing, further hearing, or deciding the cause, if the court or commission considers -
- (i)the cause is trivial; or
- (ii)further proceedings by the court or commission are not necessary or desirable in the public interest;
…
- [11]Section 51A of the Hospital and Health Boards Act 2011 (Qld) ('the HHB Act') provides for the issuing of health employment directives and is set out in the following terms:
51A Health employment directives
- (1)The chief executive may issue health employment directives about the conditions of employment for health service employees.
- (2)Without limiting subsection (1), a health employment directive may be about the following -
- (a)remuneration for health executives and senior health service employees;
- (b)the classification levels at which health executives and senior health service employees are to be employed;
- (c)the terms of contracts for health executives and senior health service employees;
- (d)the professional development and training of health service employees in accordance with the conditions of their employment.
- (3)A health employment directive may apply to any or all of the following -
- (a)the department, a Service or all Services;
- (b)health service employees, or a stated type of health service employee.
- [12]Section 51E(1) of the HHB Act provides that, inter alia, a health employment directive that applies to an employee of the department is binding on the employee and the department.
- [13]Section 66(1) of the HHB Act sets out the conditions of employment for a health service employee as follows:
66 Conditions of employment
The conditions of employment for a health service employee, other than for a health executive or a senior health service employee, are governed by -
- (a)this Act; and
- (b)the Industrial Relations Act 2016; and
- (c)the applied Public Service law; and
- (d)an industrial instrument that applies to the employee; and
- (e)health employment directives; and
- (f)if the employee is appointed on a contract for a fixed term - the employee's contract.
Background
- [14]Before the termination of her employment, the Applicant worked as a Dental Therapist[1] at the Innisfail Hospital within the Cairns and Hinterland Hospital and Health Service (CHHHS), Queensland Health.
- [15]The Applicant had been employed by Queensland Health for almost 40 years.[2]
- [16]On 11 September 2021, Health Employment Directive No 12/21 - Employee COVID-19 vaccination requirements (HED 12/21)[3] was issued.
- [17]Clause 1 of HED 12/21 provides that compliance with the Directive is mandatory. Clause 2 provides that the purpose of HED 12/21 is to outline COVID-19 vaccination requirements for existing and prospective employees employed in the identified high‑risk groups designated in the Directive.
- [18]Clause 6 of HED 12/21 identifies the potential risk posed to relevant employees, and the risk profile of those employees as follows:
- Risk management
The COVID-19 virus has been shown to disproportionately affect healthcare workers and health support staff and poses a significant risk to Queensland Health patients, and the broader community.
In recognition of the risks posed by the virus, as well as workplace health and safety obligations incumbent upon both the organisation and employees, this HED requires health service employees who are identified as being in high risk groups to be vaccinated against COVID-19.
Prospective and existing health service employees subject to these requirements have been identified based on the following risk profile:
- They are working in an area with suspected or confirmed COVID-19 patients or an area that a COVID-19 patient may enter.
- They are coming into direct or indirect contact with people who work in an area with COVID-19 patients or an area that a suspected or actual COVID-19 patient may enter.
- They are unable to observe public health requirements (e.g. physical distancing, working in areas of high population density, rapid donning/doffing of personal protective equipment (PPE) in emergent situations).
- They have the potential to expose patients, clients, other staff or the broader community to the virus (e.g. occupying shared spaces such as lifts, cafeterias, car parks, with people working with suspected or actual COVID-19 patients).
- [19]Clause 7.1 of HED 12/21 includes a table[4] which separates Queensland Health employees into a group number based on their employee cohort.
- [20]Clause 8 of HED 12/21 sets out the mandatory vaccine requirements for existing employees as follows:
8. Existing employees
8.1 Existing employees currently undertaking work or moving into a role undertaking work listed in a cohort of Table 1, must:
- have received at least the first dose of a COVID-19 vaccine by 30 September 2021; and
- 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:
- 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.
- evidence of vaccination confirming that the employee has received the second dose of a COVID-19 vaccine by no later than 7 days after receiving the vaccine.
- An existing employee must maintain vaccine protection. Therefore, an existing employee is required to receive the prescribed subsequent dose/s of a COVID-19 vaccination (i.e. booster), as may be approved by the Australian Technical Advisory Group on Immunisation (ATAGI), within any recommended timeframe following the second dose. Evidence of vaccination, confirming the employee has received prescribed subsequent dose/s of the vaccine, is to be provided to their line manager or other designated person within 7 days of receiving the vaccine.
- An existing employee who is required to have received a first or second dose of a COVID-19 dose at an earlier date under a Chief Health Officer public health direction must be vaccinated by the dates specified in the public health direction.
- The requirements of this clause 8 do not apply to existing employees who have been granted an exemption under clause 10 of this HED.
- [21]Clause 10 of HED 12/21 provides that where an employee is unable to be vaccinated, an exemption may be granted as follows:
10. Exemptions
10.1 Where an employee is unable to be vaccinated they are required to complete an exemption application form.
10.2 Exemptions will be considered in the following circumstances:
- Where an existing employee has a recognised medical contraindication;
- Where an existing employee has a genuinely held religious belief;
- Where another exceptional circumstance exists.
10.3 If an existing employee is granted an exemption, they do not have to comply with clause 8 or 9 of this HED for the duration of that exemption.
- [22]Health service employees covered by HED 12/21 are required to comply with the Directive. Clause 8.1 of HED 12/21 requires existing employees in the categories set out in clause 7.1 to have received two doses of a COVID-19 vaccine by 31 October 2021 and provide their line manager or upload into the designated system evidence of vaccination, within seven days after receiving the vaccine.
- [23]As a Dental Therapist, the Applicant was subject to the mandatory vaccination requirements.[5] The Innisfail Hospital, fell within the scope of Group 2 of HED 12/21. Group 2 covers employees employed to work in a hospital or other facility where clinical care or support is required.
- [24]On 10 November 2021, the Chief Health Officer (CHO) issued the Workers in a healthcare setting (COVID-19 Vaccination Requirements) Direction (No. 4) (CHO Direction), which remained in place until its revocation on 2 September 2022.
- [25]The CHO Direction was issued pursuant to s 362B of the Public Health Act 2005 ('the PH Act') to assist in containing, or responding to, the spread of COVID-19 in the community.
- [26]The CHO Direction provided that a worker in health care must not enter, work in, or provide services in a healthcare setting unless the worker in health care complies with the COVID-19 vaccination requirements.
- [27]On 12 October 2021, the Applicant applied for an exemption from mandatory compliance with HED 12/21. The application was refused on 3 December 2021 and confirmed on internal review on 24 January 2022.
- [28]The Applicant did not file a public service appeal against the internal review decision to confirm the refusal of her application for exemption.
- [29]On 17 February 2022, the Applicant was issued with a show cause letter and given 14 days to respond as to why a disciplinary finding should not be made against her in relation to a contravention of HED 12/21. On the same day, the Applicant was suspended from duty on normal remuneration until 20 March 2022 or until a further decision was made.
- [30]On 1 March 2022, the Applicant responded to the First Show Cause Notice.
- [31]Relevantly, the Applicant did not deny or dispute that HED 12/21 applied to her nor that she had failed to comply with HED 12/21 insofar as she had not received a COVID-19 vaccine by 31 October 2021.
- [32]By letter dated 2 March 2022, the delegate, Ms Erica Gallagher, Executive Director People and Engagement, CHHHS advised the Applicant she was satisfied the Allegation was substantiated.
- [33]Ms Gallagher determined that, pursuant to s 187(1)(d) of the Public Service Act 2008 ('the PS Act'), the Applicant had contravened, without reasonable excuse, a direction given to her as a health service employee by a responsible person. The Applicant was afforded a period of seven days to respond to the proposed termination of her employment (Second Show Cause Notice).
- [34]On 7 March 2022, the Applicant responded to the Second Show Cause Notice.
- [35]On 9 March 2022, the delegate, Mr Steve Thacker, A/Chief Executive, CHHHS advised the Applicant that her employment was terminated, effective immediately.[6] In that letter Mr Thacker explained that he had regard to the following matters in deciding such course:
- Ms Mackenzie's response to the show cause process;
- his view that Ms Mackenzie was unlikely to accept the rationale underpinning the Directive, based on her response;
- Ms Mackenzie did not contend she was compliant with the requirements of the Directive;
- Ms Mackenzie did not have an approved exemption to the requirements of the Directive; and
- the requirements of the Directive have not been met.
Commission's power to dismiss proceedings
- [36]The Commission is vested with a discretion under s 541 of the IR Act to dismiss a cause, or refrain from hearing or deciding a cause if the Commission considers that further proceedings by the Commission are not necessary or desirable in the public interest.
- [37]
- [38]In Campbell v State of Queensland (Department of Justice and Attorney-General)[9] Martin J in dealing with the application of s 541 of the IR Act wrote:
[27] Insofar as it may confine the exercise of discretion under s 541, the purpose of the Act is stated as follows:
"3 Main purpose of Act
The main purpose of this Act is to provide for a framework for cooperative industrial relations that -
- (a)is fair and balanced; and
- (b)supports the delivery of high quality services, economic prosperity and social justice for Queenslanders."
[28] The process for consideration of an application under s 541 does not require that the respondent's case be taken at its highest. The cognate provisions in federal legislation were frequently considered by Full Benches of the federal tribunal, the Federal Court of Australia and the High Court of Australia. The accepted approach was that the applicant bore the onus of making the claim for relief. But the ascertainment in any particular case of where the public interest lay often depended on a balancing of interests, including competing public interests, and was very much a question of fact and degree.
[29] As the power given to the Commission by s 541 can prevent a party from pursuing relief otherwise available under the IR Act it is one which is to be exercised with due circumspection on a proper consideration of relevant materials. A "proper consideration" cannot be made where the case for the respondent is simply taken at its highest. While the onus remains on an applicant, the requirement to consider the "public interest" cannot be satisfied if an artificial inflation of the respondent's case is applied. Indeed, to take a respondent's case at its highest would almost always result in the dismissal of an application under this section. On an application of this type, a respondent is not relieved of any requirement to advance a case.
[30] In considering the public interest, regard must be had to the legislative basis of the principal relief sought and the evidence before the Commission …
- [39]Section 541 of the IR Act is relevantly indistinguishable from its predecessor - s 331 of the Industrial Relations Act 1999. Section 331 relevantly provided:
The court or commission may, in an industrial cause -
…
- (b)dismiss the cause, or refrain from hearing, further hearing, or deciding the cause, if the court or commission considers -
- (i)the cause is trivial; or
- (ii)further proceedings by the court or commission are not necessary or desirable in the public interest.
- [40]In State of Queensland v Lockhart,[10] the Industrial Court summarised the meaning of "public interest" in relation to the exercise of discretion under s 331 in the following terms:
[21] In O'Sullivan v Farrer, Mason CJ, Brennan, Dawson and Gaudron JJ considered the expression 'in the public interest'. Their Honours wrote:
'Indeed, the expression, 'in the public interest', when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only 'in so far as the subject matter and the scope and purpose of the statutory enactments may enable … given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view'.'
[22] In GlaxoSmithKline Australia Pty Ltd v Makin, the Full Bench of Fair Work Australia in considering what constitutes 'the public interest' wrote:
'Appeals have lain on the ground that it is in the public interest that leave should be granted in the predecessors to the Act for decades. It has not been considered useful or appropriate to define the concept in other than the most general terms and we do not intend to do so. The expression 'in the public interest', when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only by the objects of the legislation in question.
Although the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters, it seems to us that none of those elements is present in this case.' (citations omitted)
Application for Reinstatement
- [41]The Applicant's application for reinstatement sets out the following:
- The reason for dismissal was because I was unlikely to accept the theories, beliefs or phenomena which the Health Employment Directive 12/21 is founded. I have sought evidence (scientific and/or statistical) from QLD Health to substantiate their claims and to prove the safety of the COVID injections but they have not responded to my safety concerns; some of which were shared by way of scientific evidence and data presented by other respected professionals with differing beliefs (and agenda) to QLD Health.
- My employment was terminated for not complying with the unlawful QLD Employee Health Directive 12/21.
- Directive 12/21 was issued under Section 51A of the Hospital and Health Boards Act 2011. Section 51C(1) states that 'if a health employment directive is inconsistent with an industrial instrument, the industrial instrument prevails to the extent of the inconsistency'. WHS Act 2011, Anti-Discrimination Act 1991 and Human Rights Act 2019 all prevail to the extent of the inconsistency which is coercion to participate in an experimental injection program at risk of termination of employment.
- QLD Health have not complied with WHS regulations in assessing risk of COVID vs risk of COVID injections.
- QLD Health have ignored the WHS consultation process and refused to supply me with information relating to the safety of the proposed injections including but not limited to injection ingredients, potential of adverse reactions and probability of these events. QLD Healths failure to supply information requested is in breach of the Australian Immunisation Handbook's requirement for 'informed consent'.
- QLD Health has not fulfilled their duty in relation to 'management of change' process and/or reassessed the risk of the COVID injections in relation to harm caused by the COVID injections when this potential for harm was brought to their attention. They have continued to insist on employees complying with the mandate dispite [sic] the significant risk of severe injury or death and the relative insignificant risk of COVID.
- I did not comply with the directive under Sect 84 of the WHS Act as to comply would put me at risk of harm or death. These outcomes are confirmed by the TGA. QLD Healths termination is a breach of the WHS Act and is considered discriminatory action under section 105 of the WHS Act.
- QLD Health has also discriminated against me in a number of other ways. Firstly by allowing unvaccinated people into the clinics and not totally excluding them as they have unvaccinated employees. Secondly, because even though vaccinated employees are equally able to contract [sic] and transmit COVID, they also were not excluded from the workplace.
- QLD Health has failed to show that the direction was 'reasonably necessary' in accordance with section 108 of the Anti-Discrimination Act. In addition, due to QLD Healths failure to achieve the stated purpose of the directive, they cannot show that the limitation of human rights is reasonable or justifiable as per Human Rights Act - Sect 13.
- The coercion to participate in a medical experiment or lose my job, the failure of QLD Health in applying WHS legislation, the unjustifiable disregard for Human Rights and the Anti-Discrimination Act, is what makes the dismissal unfair and unlawful.
- [42]During oral submissions before the Full Bench, Mr Bonaccorso, the Agent for the Applicant accepted the validity of HED 12/21.
- [43]
- [44]In Brasell-Dellow & Ors v State of Queensland, (Queensland Police Service) & Ors[12] a Full Bench of this Commission was called on to consider the lawfulness of a direction by the Queensland Police Commissioner that staff of the Queensland Police Service be vaccinated with one of three approved COVID-19 vaccines in use in Australia. The Full Bench held:
[65] A direction given to an employee does not, without more, become a term or condition of employment. This is made clear in the management prerogative cases. Where a directive is within the scope of employment and it is not contrary to the employment contract, the award or any certified agreement, the direction must be obeyed provided compliance does not involve illegality and the directive is reasonable.[13]
- [45]
[19] Whilst I do not accept that the mandating of vaccinations is a 'direction' in relation to the proper management of the health services, it would nevertheless be a direction which must be obeyed by an employee because it was reasonable and does not involve illegality.
[20] It is accepted that the Chief Executive's power to issue a HED is limited only by the directive being about the conditions of employment and the obligation under s 51AA of the HHB Act to consult with the health services and employees who are represented by an employee organisation.
[21] Clause 7.1 of HED 12/21 states that Clauses 8 and 9 of the directive require all existing and prospective employees who are or are to be employed to work in the cohorts as categorised in accordance with Table 1, to be vaccinated as a condition of employment, subject to certain limited exemptions described in clause 10 of HED 12/21.
[22] By virtue of s 66(1)(e) of the HHB Act, the conditions of employment for a health service employee are governed by, inter alia, health employment directives made pursuant to s 51A of the HHB Act. Under s 51E(1) of the HHB Act a health employment directive that applies to an employee of the Department is binding on the employee and the Department.
[23] It is clear to me that HED 12/21 is a health employment directive about 'conditions of employment'. The legislative scheme under the HHB Act empowers the Chief Executive to issue health employment directives about the conditions of employment for health service employees. HED 12/21 is a condition of employment to be vaccinated unless an exemption is granted. It follows therefore, that HED 12/21 is a health employee directive, about "conditions of employment", within the meaning of section 51A of the HHB Act.[15]
- [46]Section 51(1) of the HHB Act makes clear that a health employment directive that applies to an employee of the department is binding on the employee and the department. It is not in contention that the Applicant did not comply with HED 12/21.
- [47]What is contended by the Applicant and has always been contended, is that the Applicant had a reasonable excuse for not complying with HED 12/21.
- [48]Her reasons for her non-compliance were expressed in her written submission filed on 19 April 2023. In those submissions she states:
- The Applicant's reasonable excuse is that the novel gene therapy injections are unsafe (WHS ACT s 31.1) and ineffective and that the purpose stated by the Respondent was incapable of being achieved therefore the limitations placed on the Applicant's human rights were not demonstrably justified (HR Act s 13).
- Expert opinion is the lowest level of evidence because it is highly prone to bias. Expert opinion of the kind postulated over the last two years in support of gene therapy mandates is inferior to the data accumulated from recognised government sources and peer reviewed publications.
- The 'science' of 12-18 months ago is less accepted in the community and fast being understood to be the propaganda that it really was. The underlying facts in relation to COVID remain largely unchanged. The information that was brought to the attention of the PCBU by the Applicant which was ignored demonstrated a recklessness of the PCBU to the safety of employees. It is time for the proof to displace the rationale of QLD Health claims and for the evidence to be brought before the Commission and to be tested for reasonableness.
- [49]The 'reasonable excuse' relied upon by the Applicant was said to involve three grounds. The first was, safety; the second was that the vaccines were ineffective; and the third, was that the purpose of HED 12/21 could not be achieved.
- [50]Whilst the Applicant did not adduce any expert evidence (indeed any evidence) to support her contentions, she sought to rely on a series of articles and extracts apparently sourced from the internet. The Crown objected to that documentation being received into evidence.
- [51]The Crown argues that there are fundamental flaws with the Applicant's case:
- First, the Applicant's evidence is either inadmissible or lacks the requisite probity or relevance to support a case. To the extent the Applicant asserts her evidence is 'medical' and 'statistical', it falls within the realm of expert evidence and is subject to the rules in Makita (Australia) Pty Ltd v Sprowles.[16]
- While the rules of evidence do not bind the Commission, it does not mean the rules may be ignored. The Commission must act judicially, and rules should only be departed from in the clearest of circumstances where the interests of justice require it to be done.
- The Applicant is not qualified to speak to most of the material relied on, or otherwise capable of being usefully cross-examined on it; given none of the material is her own. It is the Applicant's opinion evidence. The interests of justice are not served by a departure from the rules in these circumstances. This evidential issue is not one that can be readily ameliorated by the Applicant at this stage of the conduct of proceedings.
- On the claim that HED 12/21 is inconsistent with the AD Act, the Applicant has not identified a claim for unlawful discrimination capable of response. For example, in all the material no 'protected attribute' could be identified. Where no claim for unlawful discrimination is even articulated, no argument of inconsistency can follow.
- The Applicant has not articulated how it is alleged HED 12/21 breached s 17 of the HR Act nor has she adduced any evidence to support the contention.
- [52]What the submissions disclosed is a reluctance or hesitancy on behalf of the Applicant to have the vaccine administered to her. It has been consistently held by this Commission that 'vaccination hesitancy' does not constitute a reasonable excuse.[17]
- [53]In the Fair Work Commission decision of Tween v Qantas Airways Limited[18] Deputy President Easton wrote:
Qantas was entitled to bring matters of vaccination to a head in 2021 and to require employees to provide proof of vaccination in 2021. Some in the community have been described as ''vaccine-hesitant". From a group wide perspective, to allow some employees to defer vaccination decisions for months or years without a compelling medical reason for doing so, would be operationally unworkable'.[19]
- [54]In our view, HED 12/21 is objectively reasonable. As is evident from cl 6 of the Directive, the COVID-19 virus has been shown to disproportionately affect health care workers and health support staff and pose a significant risk to Queensland Health patients and the broader community. In such circumstances, it is entirely reasonable, and necessary, that having regard to the identified risks, coupled with the workplace health and safety obligations incumbent upon the Department and employees, that the Department required employees in high-risk groups to be vaccinated against COVID-19.
- [55]Nothing raised by the Applicant in her submissions displaces the widely accepted view, and a view accepted by this Commission in a myriad of cases that vaccination is a reasonably practicable control measure to manage risks arising out of the COVID-19 pandemic. COVID-19 places a person at a high risk of developing serious illness which may lead to death; all the available COVID-19 vaccines are effective at preventing symptomatic infection and reducing the risk of serious illness or death; and any adverse effects are usually mild with a low probability of developing serious complications.[20]
- [56]The underlying rationale for the Directive is that the relevant Departmental staff must be vaccinated against COVID-19 in order to minimise the effects of the virus on the relevant employees and to ensure that the Department can maintain the required number of health service employees to deliver public health services in Queensland.
- [57]Under the HHB Act, a 'health service' is defined as a 'service for maintaining, improving, restoring, or managing people's health and wellbeing'.[21] Section 19(1) of HHB Act provides that 'A Service's main function is to deliver the hospital services, other health services, teaching, research and other services stated in the service agreement for the Service'. It was incumbent on Dr Wakefield to take all reasonable steps to ensure the maintenance and continuation of a health service during the pandemic.
- [58]It was contended by the Applicant that HED 12/21 was inconsistent with both the Anti‑Discrimination Act 1991 (Qld) ('the AD Act'); and/or the Human Rights Act 2019 (Qld) ('the HR Act') within the meaning of s 51B of the HHB Act. However, in Mocnik the Commission determined that no inconsistency arose. We follow Mocnik.
- [59]Whilst it was not agitated before the Full Bench during the hearing, it was contended that the Health Department did not conduct appropriate consultations with employees and their representatives prior to implementing HED 12/21 in contravention of the Work Health and Safety Act 2011.
- [60]That issue has been previously dealt with by the Commission in Brasell-Dellow & Ors v State of Queensland, (Queensland Police Service) & Ors where the Commission found:
[128] When considering in any particular case what consultation is "reasonably practicable", regard must be had not only to the particular circumstances, but also to the legislative intention behind ss 47 and 48. The point of s 47 is to enable workers who may be affected by workplace, health and safety issues to have input into the management of those issues before an employer imposes conditions upon them. Obviously, the desirable outcome is agreement between the employer and employees as to the work, health and safety measures.
[129] Here, the unions agreed with the directive. In other words, the consultation reached the level where the directive was not a matter of contention. The unions, with total coverage over the workforce, agreed with it.[22]
- [61]A similar view was taken in Mocnik, where the Commission found:
[88] The evidence is that the Respondent consulted with the unions with total coverage over the workforce and agreed with it. It is well-established that trade unions may negotiate with employers, not only on behalf of their members, but also on behalf of workers who are eligible for membership.[23]
- [62]In respect of the unfair dismissal application, the Applicant submits that:
- Whilst the Respondent has focused on termination of employment due to non-compliance and the process followed in that termination, the Applicant has always been focused on health and safety and the incumbent obligations that apply to both the employer and the employee and the roles they play in relation to this unfair dismissal case.
- It is contended, and has always been contended, that the Applicant had a reasonable excuse for not complying with Health Employment Direction 12/21 (HED 12/21).
- The Applicants arguments are not misconceived or settled. The applicant is not debating the process of termination; the applicant is debating the reasoning behind the termination and its non-compliance with existing legislation.
- [63]Under s 317 of the IR Act, the onus rests on the Applicant to demonstrate on the balance of probabilities that her dismissal was unfair; that her dismissal was harsh, unjust and unreasonable.[24]
- [64]In assessing an application under s 317, the Commission is both informed and constrained by s 320 of the IR Act which prescribes the circumstances which must be considered in such an assessment.
- [65]Guidance on what might constitute "harsh, unjust, or unreasonable" can also be found in the judgment of McHugh and Gummow JJ in Byrne v Australian Airlines Limited ('Byrne'):[25]
… It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted."[26]
- [66]In G A Stewart v University of Melbourne,[27] Ross VP considered s 170CG(3) of the Workplace Relations Act 1996 (Cth) in which he followed the joint judgment of McHugh and Gummow JJ in Byrne. Ross VP wrote:
… a termination of employment may be:
harsh, because of its consequence for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct;
unjust, because the employee was not guilty of misconduct on which the employer acted; and/or
unreasonable, because it was decided on inferences which would not reasonably have been drawn from the material before the employer.[28]
- [67]The submissions of the Applicant fail to address any of the matters contained in s 320 of the IR Act. Ms Mackenzie has fundamentally failed to grapple with the true nature of her application for reinstatement and has, instead, focused on trying to mount an argument to justify her decision not to obey a lawful direction of her employer.
- [68]The Applicant has not argued, nor does the material before the Full Bench suggest, that she was denied procedural fairness. Indeed, the termination letter of 9 March 2022 from Mr Thacker clearly, and in some detail, notified her of the reasons for her dismissal and that her dismissal related to her conduct as an employee of the Respondent. The Applicant was given an opportunity to explain her refusal to obey HED 12/21; she was sent a show cause letter on 17 February 2022 particularising the allegations against her and given an opportunity to respond; she was invited through a show cause process to demonstrate why her employment should not be terminated; and on 9 March 2022, her employment was terminated with four weeks' pay in lieu of notice.
- [69]The Applicant has failed to articulate why her dismissal was arguably unfair.
Conclusion
- [70]For the reasons advanced above, we are of the view that further proceedings in the Commission are not necessary or desirable in the public interest.
- [71]The arguments advanced by the Applicant in her application for reinstatement are not novel or unique. They raise no reasonable excuse and ventilate many arguments which have already been the subject of much judicial determination both within this jurisdiction and elsewhere.
- [72]On any view of the material before the Full Bench and having the benefit of hearing from the representative of the Applicant, there are insufficient prospects of success to justify the matter progressing to hearing. Accordingly, we are of the view that we ought to refrain from hearing the cause as further proceedings by the Commission are not necessary or desirable in the public interest.
Costs
- [73]In the application to strike out, the Crown seeks an order for costs. As foreshadowed at the conclusion of the hearing, the Full Bench makes the following further orders:
- The Respondent, file in the Industrial Registry and serve on the Applicant, any submissions in support of the application for costs by 19 May 2023.
- The Applicant, file in the Industrial Registry and serve on the Respondent, any reply submissions on costs by 2 June 2022.
- All parties have liberty to apply for leave to make oral submissions on costs by filing an application on or before 9 June 2023.
- In the absence of any application being filed by 9 June 2023, the question of costs will be decided on the written submissions without further oral hearing.
Footnotes
[1]Health Practitioner Level 3 classification.
[2]From 28 February 1983 to 9 March 2022.
[3]Exhibit 2.
[4]Health Employment Directive No 12/21 - Employee COVID-19 vaccination requirements, clause 7 Requirement for vaccination, Table 1.
[5]Ms Mackenzie was categorised as an employee falling within Group 2 of Table 1, cl 7.1 of the Directive.
[6]Ms Mackenzie received payment in lieu of notice.
[7]Campbell v State of Queensland (Department of Justice and Attorney-General) [2019] ICQ 18, [29].
[8]Ibid, [32].
[9][2019] ICQ 18.
[10][2014] ICQ 006.
[11]Mocnik & Others v State of Queensland (Queensland Health) [2023] QIRC 058 (Mocnik).
[12][2021] QIRC 356.
[13]Brasell-Dellow & Ors v State of Queensland, (Queensland Police Service) & Ors [2021] QIRC 356.
[14][2023] QIRC 058.
[15]Mocnik & Others v State of Queensland (Queensland Health) [2023] QIRC 058.
[16]Makita (Australia) Pty Ltd v Sprowles [2001] NSWLR 705, [58].
[17]Galletly v State of Queensland (Queensland Health) [2023] QIRC 040; Sainty v State of Queensland (Queensland Health) (No. 2) [2023] QIRC 078; Borough v State of Queensland (Department of Environment and Science) [2022] QIRC 357.
[18][2022] FWC 1594.
[19]Ibid, [134].
[20]Mocnik & Others v State of Queensland (Queensland Health) [2023] QIRC 058, [44].
[21]Hospital and Health Boards Act 2011 (Qld), s 15(1).
[22][2021] QIRC 356.
[23][2023] QIRC 058; R v Dunlop Rubber Australia Ltd; Ex parte Federated Miscellaneous Workers' Union of Australia (1957) 97 CLR 71 and Regional Express Holdings Limited v Australian Federation of Air Pilots (2017) 262 CLR 456.
[24]Section 316, IR Act 2016.
[25]185 CLR 410.
[26]Byrne v Australian Airlines Limited (1995) 185 CLR 410, 465.
[27][2000] AIRC 779.
[28]G A Stewart v University of Melbourne [2000] AIRC 779, [74].