Janulewicz v State of Queensland (Queensland Health)
[2023] QIRC 26
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- Unreported Judgment
- Janulewicz v State of Queensland (Queensland Health)[2023] QIRC 26
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Janulewicz v State of Queensland (Queensland Health)[2023] QIRC 26
Janulewicz v State of Queensland (Queensland Health)[2023] QIRC 26
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Janulewicz v State of Queensland (Queensland Health) [2023] QIRC 026 |
PARTIES: | Janulewicz, Magdalena Agnieszka (Applicant) v State of Queensland (Queensland Health) (Respondent) |
CASE NO: | TD/2022/220 |
PROCEEDING: | Application for reinstatement |
DELIVERED ON: | 27 January 2023 |
MEMBER: | Dwyer IC |
HEARD AT: | Brisbane |
ORDER: | Pursuant to s 541(b)(ii) of the Industrial Relations Act 2016 (Qld), the proceedings TD/2022/220 is dismissed in its entirety. |
CATCHWORDS: | INDUSTRIAL LAW – DISMISSAL – APPLICATION FOR REINSTATEMENT – applicant employed by Queensland Health – where the Health Employment Directive No.12/21 – Employee COVID-19 vaccination requirements required employees to receive at least a first dose of a COVID-19 vaccine by 30 September 2021 and receive the second dose of a COVID-19 vaccine by 31 October 2021 – applicant did not comply with the vaccination requirements – applicant terminated following disciplinary process – applicant put on notice that arguments raised similar to those heard and addressed by the Commission – whether further proceeding is necessary or desirable in the public interest – consideration of relevant factors – proceedings TD/2022/220 is dismissed in its entirety |
LEGISLATION: | Industrial Relations Act 2016 (Qld), s 541 Public Service Act 2008 (Qld) s 194 Work Health and Safety Act 2011 (Qld) Health Employment Directive 12/21 Employee COVID-19 vaccination requirements Workers in a healthcare setting (COVID-19 Vaccination Requirements) Direction |
CASES: | Brassell-Dellow & Ors v State of Queensland, (Queensland Police Service) [2021] QIRC 356 Bax v State of Queensland (Queensland Health) [2022] QIRC 304 Campbell v State of Queensland (Department of Justice and Attorney General [2019] ICQ 18 Donnelly v State of Queensland (Queensland Health) [2022] QIRC 149 Slykerman v State of Queensland (Queensland Health) [2022] QIRC 039 |
APPEARANCES: | Ms M Janulewicz, the applicant Mr L Grant instructed by Ms R Maynard of Crown Law for the respondent |
Reasons for Decision
Introduction
- [1]Ms Magdalena Janulewicz ('Ms Janulewicz') was employed by Queensland Health from 19 July 2004 to 15 September 2022. At the time of her dismissal, she was employed as a Food Services Officer, Patient Services at the Caboolture Hospital within Metro North Hospital and Health Service ('MNHHS').
- [2]Ms Janulewicz was subject to the Health Employment Directive 12/21 Employee COVID-19 vaccination requirements ('the directive') which came into effect on 11 September 2021. Ms Janulewicz did not comply with the directive. She applied for an exemption on the grounds of genuinely held religious belief. The application was refused, and Ms Janulewicz was given seven days to comply with the directive.
- [3]In accordance with her request, an internal review was conducted. Ms Janulewicz also indicated Novavax was consistent with her religious belief and would be available for use in the upcoming weeks. The internal review was completed and the decision to refuse the exemption was confirmed on 21 March 2022. Ms Janulewicz did not exercise her right to have this decision reviewed.[1]
- [4]Ms Janulewicz was suspended with pay from 30 May 2022 to 20 June 2022, before being suspended without pay from 21 June 2022 until her employment was terminated on 15 September 2022.
- [5]Ms Janulewicz filed an application for reinstatement on 29 September 2022. In her application for reinstatement, Ms Janulewicz contends inter alia that:
- At the beginning of the pandemic there were 'numerous' epidemiologists 'around the word' that challenged the World Health Organisation, but their views were restricted from access to mainstream media;
- Details of the side effects of vaccines were not available to the general public. The 'official papers' produced by the 'pharmaceutical industry' were suppressed from the main-stream media; and
- She is suspicious and fearful of the vaccinations and their side effects because she has learned that medications that could ease the symptoms caused by corona virus were 'not allowed to be prescribed by doctors' and instead 'the vaccination agenda became the only remedy for the virus'.
- [6]An employer response was filed on 14 October 2022. The response details reasons for which the termination was not harsh, unjust or unreasonable, including:
- There was a valid reason for Ms Janulewicz's dismissal;
- Ms Janulewicz was afforded procedural fairness throughout her discipline process; and
- The dismissal was proportionate to Ms Janulewicz's conduct.
- [7]The matter was mentioned on 26 October 2022. At the mention, it was explained to Ms Janulewicz that her dismissal arises in circumstances which are not unique to the Commission. It was explained to Ms Janulewicz that throughout the past year the Commission has addressed a number of applications by people in a similar situation to her i.e., where they have declined to comply with a direction to be vaccinated on some or all of the grounds she outlines in her application, and that none had been successful.[2]
- [8]In those circumstances Ms Janulewicz was informed that the matter was one for consideration on a preliminary basis pursuant to section 541 of the Industrial Relations Act 2016 (Qld) ('the IR Act'), and that she would be required to provide submissions addressing why it is in the public interest that her case should be dealt with by the Commission.
- [9]Directions to that effect were issued on 26 October 2022.
Legislative Framework
- [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—
- (a)make a decision it considers just, and include provision for preventing or settling the industrial dispute or dealing with the industrial matter to which the cause relates, without being restricted to any specific relief claimed by the parties to the 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;
- (c)order a party to the cause to pay another party the expenses, including witness expenses, it considers appropriate.
(Emphasis added)
- [11]
[26] In the earlier case of Quaedvlieg & Ors v Boral Resources (Qld) Pty Ltd Hall P, in dealing with an application to strike out for want of prosecution, cited with approval the reasoning of Thomas JA in Quinlan v Rothwell as follows:
“There is now a consciousness of the need for some level of efficiency in the use of the courts as a public resource. That, of course, must not displace the need for reasonable access to the courts and the provision of justice according to law in each matter, but it highlights the fact that the former laissez faire attitude by courts towards the leisurely conduct of actions at the will of the parties has ended. At the same time the rules of court are not an end in themselves. They do not exist for the discipline of practitioners or clients, or for the protection of courts from inefficient litigants, but rather as a means of ensuring that issues will be defined in an orderly way and that parties have the opportunity of full preparation of their case before the trial commences. The rules also afford defendants the means of bringing to an end actions in which the other party will not abide by the rules.”
[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.
(Emphasis added)
Submissions of the parties
Submissions of Ms Janulewicz
- [12]In ought to be noted at the outset that the submissions filed by Ms Janulewicz deviate from her various veiled references to conspiracies set out in her application. There are still hints of mistrust and allusion to sinister motives,[5] but they are less prominent than e.g., the assertion that she was denied procedural fairness.
- [13]Ms Janulewicz requests that she is reinstated on the basis that Queensland Health did not afford her with procedural fairness when considering the termination of her employment. She submits that no risk assessment was completed in relation to the vaccine. She contends that the directive was based on superficial evidence and 'pseudoscience', thus making the directive invalid.
- [14]Ms Janulewicz submits she applied for the religious exemption as she has strong religious views against the use of foetal cells in the production and testing of vaccines. She contends she was willing to take the Novavax vaccine as it did not use foetal stem cells in its production. She contends that the denial of her religious exemption was unfair as she was not provided with any reasoning or explanation or evidence that the decision was impartial.
- [15]Ms Janulewicz submits she was denied representation by her union 'due to their affiliation with the Australian Labor Party' and that at the time the media was negatively portraying those who would not get vaccinated.
- [16]Despite previously stating she would be willing to take Novavax, Ms Janulewicz then contends that she decided she would not receive Novavax because the Premier was 'demanding' all healthcare workers to receive COVID-19 vaccines 'every three months'.
- [17]Ms Janulewicz contends that correspondence sent to her on 27 May 2022 indicated that public service employees must disclose a history of serious disciplinary action which includes the discussion to terminate their employment. She submits that this exceeds the initial punishment of only terminating her employment, and that this rule is not fair or just.
- [18]She contends that she did not, at any time, do anything to warrant serious disciplinary action as she obeyed all directives to no longer enter any Metro North facility.
- [19]Ms Janulewicz contends that Queensland Health has failed to show justification for their decision-making and have failed to update their decision-making process as new information becomes available.
- [20]Ms Janulewicz concludes her submissions by contending that 'hospitals were not mandated under federal law. No scientific evidence was presented or exists for justification of the vaccine thus making the directive invalid'.[6] She also contends she knows doctors who are unvaccinated and remain with MNHHS as there is a shortage of doctors.
Submissions of Queensland Health
- [21]The respondent submits that the matters raised by Ms Janulewicz have already been extensively considered and determined in numerous reinstatement applications and public service appeals. They note none of the matters raised in her application and submissions have been in favour of employees thus far.
- [22]The respondent notes the requirement to have a vaccine has consistently been found to be a lawful and reasonable direction.[7] They also note at the time of her termination, Ms Janulewicz was legally prohibited from attending her workplace due to the operation of the Workers in a healthcare setting (COVID-19 Vaccination Requirements) ('CHO direction').
- [23]The respondent notes Ms Janulewicz's claim that the directive is invalid due to being based on 'superficial evidence and pseudoscience' is misconceived and appears to be based on her belief without demonstrating how she has come to this conclusion.
- [24]The respondent submits Ms Janulewicz's belief that she is entitled to an exemption on the grounds of her religious beliefs is incorrect. The obligation of clause 10 of the directive is for the Queensland Health to consider an application for exemption; it is not required to grant the exemption. The respondent submits her dissatisfaction with the outcome of her exemption application is not an exceptional circumstance warranting an exemption from non-compliance with the directive.
- [25]The respondent notes Queensland Health was not required to demonstrate the safety and efficacy of the COVID-19 vaccines to Ms Janulewicz for the directive to be applicable to her. The respondents note in any event, they provided a number of resources and information sessions to employees, and recommended they raise concerns with their general practitioners.
- [26]The respondent submits Ms Janulewicz had a considerable period of time to consider and obtain another available COVID-19 vaccine, as she received the decision confirming the exemption refusal six months after the directive took effect.
- [27]The respondent also notes that Novavax came into effect in February 2022, one month before Ms Janulewicz was issued with the first show cause notice. To date, she has provided no explanation as to why she has not received the Novavax vaccine, despite indicating she was willing to do so.
- [28]The respondent also rejects Ms Janulewicz's submissions in relation to natural immunity and note it does not amount to sufficient medical evidence to warrant an exemption.
- [29]The respondent submits Queensland Health complied with their obligations to consult in relation to the vaccine mandate in accordance with the Work Health and Safety Act 2011 (Qld).
- [30]The respondent notes Ms Janulewicz was dismissed following her failure to comply with a direction given to her. They submit a failure to comply with a lawful and reasonable direction, especially where the direction is made in the context of attempts to manage the impact of a highly contagious and potentially deadly virus, is a significant act of insubordination, and the obligation of an employee to comply with such a direction is embedded into every employment relationship.
- [31]The respondent concludes their submissions by contending that in circumstances where no evidence was provided as to Ms Janulewicz being vaccinated, it was open to the decision maker to conclude she failed to comply with a lawful and reasonable direction to comply with the directive. They contend the matters dealt with in her application and submissions have been addressed previously by the Commission and have not been successful nor favourable to an employee; thus, the decision to terminate her employment was fair and reasonable.
Reply submissions of Ms Janulewicz
- [32]Ms Janulewicz files brief submissions in reply on 10 January 2023. She contends the submission of the respondent that her submissions are misconceived is speculation and not supported by evidence. She contends that the submission that no reinstatement applications or submissions have been successful for employees 'brings nothing to this dispute' and should thus be rejected.[8]
- [33]The other submissions by Ms Janulewicz relate to allegations of censorship, human rights and misinformation.
Consideration
- [34]The discretion available under s 541 of the IR Act should not be exercised without due circumspection. It is a significant step to deprive a litigant of the right to advance their proceedings, especially in the context of proceedings where the litigant has lost secure employment that they held for 18 years (as in this case).
- [35]Further, in evaluating whether it is not desirable in the public interest to hear Ms Janulewicz's application, it is important to ensure that the consideration of the Commission is not limited to acceptance of Queensland Health's case at its highest.
- [36]Having regard to these considerations, and the submissions filed by each of the parties, it can be confidently concluded that it would not be desirable in the public interest for the Commission to hear Ms Janulewicz's application for reinstatement.
- [37]The Application for Reinstatement filed by Ms Janulewicz is replete with the all too familiar conspiracy theories that have circulated since the beginning of the pandemic. Further (and again in an all too familiar pattern) her allegations of plots by governments or 'the pharmaceutical industry' to suppress information and contrary voices are entirely unsupported by evidence (other than her own fervent assertions). Ms Janulewicz portrays herself in her application for reinstatement as being punished for her 'strong beliefs' in these theories, while all the while ignoring the glaring reality that the strength of a belief alone does not give it merit.
- [38]These matters identified by Ms Janulewicz in her application and upon which she relies to argue her dismissal was unfair are so obviously devoid of merit that they do not require or warrant further consideration. The public interest is not served by the Commission's resources being expended listening to theories which, despite their prevalence in certain unregulated forums, remain wholly incapable of substantiation in any court or tribunal where they have been scrutinised.
- [39]Having been on notice of this view being held on a preliminary basis, Ms Janulewicz had the opportunity to demonstrate some merit in her written submissions. Unfortunately, while a different angle was adopted by Ms Janulewicz, her submissions were equally unmeritorious. In her written submissions Ms Janulewicz includes numerous assertions (on various grounds) that she was denied procedural fairness. Nothing could be further from reality.
- [40]The procedures employed by the public sector in matters such as this involve an abundance of procedural fairness. Ms Janulewicz's dismissal was preceded by the typical multitude of layers of show cause letters and opportunities to respond. The process extended over many months. Apart from her assertions that she considered the outcome at each review or show cause stage to be unfair, there is no evidence that the process adopted by Queensland Health miscarried.
- [41]Indeed, Ms Janulewicz has (on at least two occasions) eschewed opportunities to respond or further challenge decisions made as part of the process. Firstly, Ms Janulewicz did not take the opportunity to appeal the internal review decision refusing her religious exemption despite having the right to do so. Further, in her written submission Ms Janulewicz confirms she 'declined the offer to respond at any length' to a show cause letter in May 2022 because she felt that any explanation 'would not be handled fairly'.
- [42]Ms Janulewicz can hardly complain about denial of procedural fairness of a process that, because of her own subjective suspicions, she failed to engage with.
- [43]Further, Ms Janulewicz appears to submit that she was denied procedural fairness because the process itself was unjustified. This is variously said to be because of the unlawfulness of the directive or the lack of risk assessment or the lack of proof of the efficacy of vaccines etc. Again, these submissions are so lacking in merit they do not warrant detailed consideration given that similar submissions have been the subject of numerous decisions of this Commission.[9]
- [44]Having regard to the written submissions of Ms Janulewicz, it is difficult to find a high point from which to consider her matter. The most favourable characterisation of Ms Janulewicz's submissions is that they are a stream of misconceived theories and ideas which thinly veil a deep distrust of her employer, the government, and other entities. The submissions reveal that the grounds relied on by Ms Janulewicz to support the assertion that her dismissal was unfair are entirely without merit.
- [45]In all of those circumstances it is more than clear that it is not desirable in the public interest for this matter to proceed to hearing.
Orders
- [46]Accordingly, I make the following order:
- Pursuant to s 541(b)(ii) of the Industrial Relations Act 2016 (Qld), the proceeding TD/2022/220 is dismissed in its entirety.
Footnotes
[1] Public Service Act 2008 (Qld) s 194(1)(eb).
[2] See for example: Brasell-Dellow & Ors v State of Queensland, (Queensland Police Service) & Ors [2021] QIRC 356; Tilley v State of Queensland (Queensland Health) [2022] QIRC 002; Slykerman v State of Queensland (Queensland Health) [2022] QIRC 039; Higgins v State of Queensland (Queensland Health) [2022] QIRC 030; Sunny v State of Queensland (Queensland Health) [2022] QIRC 119; Collins v State of Queensland (Queensland Health) [2022] QIRC 215; Edwards v State of Queensland (Queensland Health) [2022] QIRC 091; Barbagallo v State of Queensland (Queensland Health) [2022] QIRC 195; McPaul v State of Queensland (Queensland Health) [2022] QIRC 175; Knight v State of Queensland (Queensland Ambulance Service) [2022] QIRC 283; Brown v State of Queensland (Queensland Ambulance Service) [2022] QIRC 312; Godwin v State of Queensland (Queensland Health) [2022] QIRC 240; Lamb v State of Queensland (Queensland Health) [2022] QIRC 237. There are numerous others.
[3] [2019] ICQ 18.
[4] Citations omitted.
[5] See for example the Applicant's reference to certain 'heads of government' who were 'shuffled into their positions' by the Premier to 'implement vaccine mandating'.
[6] Submissions of the applicant, page 3.
[7] Slykerman v State of Queensland (Queensland Health) [2022] QIRC 039; Bax v State of Queensland (Queensland Health) [2022] QIRC 304; Donnelly v State of Queensland (Queensland Health) [2022] QIRC 149.
[8] Reply submissions of the applicant, paragraph 2.
[9] See for example Brassell-Dellow & Ors v State of Queensland, (Queensland Police Service) [2021] QIRC 356; Slykerman v State of Queensland (Queensland Health) [2022] QIRC 039 to name but two examples.