De Martin v State of Queensland (Queensland Health)
[2023] QIRC 265
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- De Martin v State of Queensland (Queensland Health)[2023] QIRC 265
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De Martin v State of Queensland (Queensland Health)[2023] QIRC 265
De Martin v State of Queensland (Queensland Health)[2023] QIRC 265
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | De Martin v State of Queensland (Queensland Health) [2023] QIRC 265 |
PARTIES: | De Martin, Renai (Applicant) v State of Queensland (Queensland Health) (Respondent) |
CASE NO: | TD/2022/54 |
PROCEEDING: | Application for reinstatement |
DELIVERED ON: | 14 September 2023 |
MEMBER: | Dwyer IC |
HEARD AT: | On the papers |
ORDER: |
|
CATCHWORDS: | INDUSTRIAL LAW – DISMISSAL – APPLICATION FOR REINSTATEMENT – applicant employed by the State of Quenesland (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/2022/54 is dismissed in its entirety |
LEGISLATION AND OTHER INSTRUMENTS: | Anti-Discrimination Act 1991 (Qld) Health and Hospital Boards Regulation 2012 (Qld) Health Employment Directive 12/21 Employee COVID-19 vaccination requirements Human Rights Act 2019 (Qld) Industrial Relations Act 2016 (Qld) s 3, s 317, s 541 Industrial Relations Act 1999 (Qld) s 331 Public Service Act 2008 (Qld) s 3 |
CASES: | Campbell v State of Queensland (Department of Justice and Attorney-General) [2019] ICQ 18 Mocnik & Others v State of Queensland (Queensland Health) [2023] QIRC 058. State of Queensland v Lockhart [2014] ICQ 006 Tilley v State of Queensland (Queensland Health) [2023] QIRC 262. |
Reasons for Decision
Introduction and background
- [1]Ms Renai De Martin was employed by the State of Queensland (Queensland Health) ('the Respondent') as a Registered Nurse within the Gold Coast Hospital and Health Service.
- [2]On 11 September 2021, the Health Employment Directive 12/21 Employee COVID-19 vaccination requirements ('the directive') came into effect. As a Registered Nurse, Ms De Martin was subject to the directive. The directive required inter alia that employees receive:
- the first dose of a COVID-19 vaccine by 30 September 2021; and
- the second dose of a COVID-19 vaccine by 31 October 2021.
- [3]On 30 September 2021, Ms De Martin applied for an exemption to the directive, citing that 'other exceptional circumstances' precluded her from receiving the required doses of a COVID-19 vaccine.
- [4]On 27 October 2021, Ms De Martin's exemption application was declined by the Respondent. Ms De Martin subsequently requested an internal review of the Respondent's decision to decline her exemption application.
- [5]On 1 December 2021, Ms De Martin was issued correspondence advising her that the Respondent had upheld their decision to decline her exemption application. Ms De Martin was further directed to comply with the directive and was put on notice that non-compliance may result in disciplinary action.
- [6]Following a further failure to comply with the directive, Ms De Martin was subject to disciplinary action that included the issuance of two show cause letters. Ms De Martin's response to the first show cause letter was regarded by the Respondent as inadequate. Ms De Martin failed to respond to the second show cause letter entirely. The termination of her employment ensued and was effective from 27 January 2022.
- [7]On 18 February 2022, Ms De Martin filed in the Industrial Registry a Form 12 – Application for reinstatement pursuant to s 317 of the Industrial Relations Act 2016 (Qld) ('IR Act'). Ms De Martin's application for reinstatement sets out the following:
Dismissal from my employment is unfar (sic) for the following reasons.
- Risk assessments re non-vaccinated staff bringing Covid-19 into the workplace were not completed at a ward level as requried (sic) by Safe Work Australia.
- Employer had failed to consult staff in relation to the change of work i.e. mandatory Covid-19 vaccinations.
- During the course of employment, mandatory Covid-19 vaccinations resulted in the employment changing without consultation by my employer as required by the Work Health and Safety Act 2011.
- The COVID-19 Vaccination Requirements for Workers in a high-risk settings, Direction (No. 2), section 27 states that non-vaccinated employees may return to the workforce to relive critical staff shortage.
As nursing colleagues have been working short staffed with the ratio of 1:5 (notably against legal requirements as outlined by the Office of the Chief Nursing and Midwifery Officer), my employer should have provided the opportunity to work relief shifts.
- As per Nurses and Midwives (Queensland Health and Department of Education) Certified Agreement (EB10) 2018, section 40.1 and 40.2: Gold Coast University Hospital is requried (sic) to maxamise (sic) job security for permanent Nurses and Midwives in addition to provide workforce stability, cohesion, and motivation.
- No aemployer (sic) ction (sic) was taken to manage greivances (sic) as per policy E21 (QH-POL-140).
- I was one of the original Registered Nurses who worked on the COVID-19 ward at Robina Hospital during the initial outbreak in 2019. We were all trained in infection control processes, and managing patient deterioration to adequately protect patients, colleagues and the community. My care for patients, diligence and dedication providing best evidence based care while staying loyal to Queensland Health did not waver during this time and has not changed during the course of employment.
- [8]At a mention of the matter before the Commission on 31 January 2023, it was explained to Ms De Martin (through her representative at the time) that the matters that were the subject of her application for reinstatement had been considered by the Commission on a number of occasions.[1]
- [9]Accordingly, the parties were directed to provide submissions as to why the Commission should not dismiss the matter pursuant to s 541(b)(ii) of the IR Act in circumstances where further proceedings by the Commission are not necessary or desirable in the public interest.
- [10]Directions to that effect were issued on 31 January 2023.
Legislative Framework
- [11]Section 541 of the IR Act provides:
541 Decisions generally
The court or commission may, in an industrial cause do any of the following—
- 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;
- dismiss the cause, or refrain from hearing, further hearing, or deciding the cause, if the court or commission considers—
- the cause is trivial; or
- further proceedings by the court or commission are not necessary or desirable in the public interest;
- order a party to the cause to pay another party the expenses, including witness expenses, it considers appropriate.
(Emphasis added)
- [12]In Campbell v State of Queensland (Department of Justice and Attorney-General),[2] Justice Martin considered the power in s 541:
- [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—
- is fair and balanced; and
- 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)
- [13]Section 541 of the IR Act is, in principle, indistinguishable from its predecessor, s 331 of the Industrial Relations Act 1999 (Qld). Section 331 provided:
331 Decisions generally
The court or commission may, in an industrial cause –
- make a decision it considers just, and include in the decision a provision it considers appropriate for preventing or settling the industrial dispute, or dealing with the industrial matter, the cause relates to, without being restricted to any specific relief claimed by the parties to the cause; or
- dismiss the cause, or refrain from hearing, further hearing, or deciding the cause, if the court or commission considers –
- the cause is trivial; or
- further proceedings by the court or commission are not necessary or desirable in the public interest.
…
- [14]In State of Queensland v Lockhart,[3] Deputy President O'Connor (as His Honour then was) considered the meaning of “public interest” in relation to the exercise of the discretion under s 331:
- [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 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."
Ms De Martin's submissions
- [15]Ms De Martin opens her submissions by agreeing that it is not in the public interest for the Commission to hear arguments that have been previously advanced by parties and decided upon by the Commission. But in acknowledging this, Ms De Martin submits that the circumstances of her dismissal are distinguishable from the many other applicants who have commenced similar proceedings in this Commission.
- [16]In summary, Ms De Martin submits that:
- the Respondent discriminated against her on the grounds of her religious beliefs. The Respondent's discrimination is also submitted to be in breach of the Nurses and Midwives (Queensland Health and Department of Education) Certified Agreement (EB11) 2022, the International Labour Organisation ('ILO') Convention 122 – Employment Policy (1964) and ILO Convention 111 – Discrimination (Employment and Occupation) (1958);
- her employment with the Respondent was terminated prior to the conclusion of a grievance in contravention of the 'Nurses and Midwives (Qld Health and Department of Education) Enterprise Agreement 2023'.[4] Ms De Martin further submits that this was an unreasonable abuse of power on behalf of the Respondent and was in contradiction of s 3 of the Public Service Act 2008 (Qld);
- certain decisions of the Commission[5] are not legally binding and should be reassessed in light of Part 2 Division 1 of the Human Rights Act 2019 (Qld) ('HR Act');
- the Respondent did not apply decency, context, evidence or reasonably practicable alternatives;
- the Respondent's enforcement of the directive has exacerbated staff shortages as a result of terminations;
- nurses have been discriminated against by the Queensland Government due to “incongruency of treatment between different departments”;
- her termination is unjust in light of s 3(b) of the IR Act;
- the “astronomical financial expenditures” resulting from the directive are at the cost of the community and are not necessary or desirable in the public interest; and
- the differential treatment between employees of different health services is demonstrative of subjective decision-making by the Respondent and discrimination towards her.
Submissions of the Respondent
- [17]In response to the submissions of Ms De Martin, the Respondent submits, in summary:
- it would be an inefficient use of the Commission's resources to allow Ms De Martin's proceedings to continue in circumstances where the Commission has, in the past, disposed of the same arguments relied on by Ms De Martin;
- the decision of Mocnik & Others v State of Queensland (Queensland Health)[6] ('Mocnik') established that:
- the Nurses and Midwives (Queensland Health) Award – State 2015 ('the Award') does not require a decision to be held in abeyance where there is a genuine safety issue (such as the COVID-19 pandemic);
- the directive is not inconsistent with the Anti-Discrimination Act 1991 (Qld) ('AD Act') and the HR Act;
- expert evidence establishes that all available COVID-19 vaccines are effective at preventing infection and reducing the risk of serious illness or death;
- the availability of alternatives which may accommodate the specific interests of an individual does not establish that a condition or requirement is unreasonable; and
- the directive is reasonable and justifiable.
- the directive has been applied consistently across various health services;
- Ms De Martin elected not to lodge a public service appeal in respect of the decision to refuse her exemption application; and
- Ms De Martin was afforded procedural fairness throughout the disciplinary process that led to her termination.
Ms De Martin's reply submissions
- [18]Ms De Martin filed her reply submissions on 21 March 2023.
- [19]In her reply submissions, Ms De Martin has included a number of points not previously raised in her submissions filed on 21 February 2023. The Respondent did not seek an opportunity to respond to these fresh submissions.
- [20]In summary, Ms De Martin submits that:
- the Commission ought to consider newfound evidence pertaining to the efficacy of COVID-19 vaccines;
- she is unable to provide informed consent to participate in a clinical trial;
- she has suffered direct and indirect discrimination as contemplated by the AD Act;
- the Respondent denying her religious exemption was unfair and unreasonable;
- the directive is inconsistent with the provisions of the Hospital and Health Boards Regulation 2012 (Qld) pertaining to nurse-to-patient and midwife-to-patient ratios;
- she elected not to lodge a public service appeal in respect of the decision to refuse her exemption application due to her poor mental health.
Consideration
- [21]When the matter came before the Commission for mention on 31 January 2023 Ms De Martin was given an unambiguous account of the Commission's concerns regarding the viability of her application. Ms De Martin and her (then) lawyer were even taken to specific case references of decisions that had already comprehensively dealt with matters she raised in her application.[7]
- [22]Nevertheless, Ms De Martin was given the opportunity to persuade the Commission that her application, which bore substantial similarity to many others already dispensed with, ought to be heard.
- [23]Further, in the course of exchanging submissions between the parties, Ms De Martin received from the Respondent explicit references to numerous authorities of this Commission that conclusively dismissed identical arguments to those that she now seeks to advance.
- [24]Ms De Martin had two opportunities to demonstrate (through her submissions) why it was in the public interest for the Commission to hear and determine a matter founded on arguments already made (and lost) by other litigants who came before her. Ms De Martin filed substantive and reply submissions.
- [25]To the extent that Ms De Martin's submissions demonstrate any familiarity with the numerous authorities cited to her, they are not accompanied by a demonstration of corresponding understanding of those decisions or their effect. Ms De Martin's analysis of each of them is limited to inter alia a conclusion that they are not binding because they are decisions of a single Commissioner, or that they rely on information that is outdated or unreliable.
- [26]It is not necessary to descend into a line by line consideration of the many ways in which Ms De Martin's submissions misunderstand, misstate, or misrepresent the legal and medical propositions underpinning the vaccine mandate. Suffice to say that the case Ms De Martin's seeks to advance before the Commission is best illustrated by the particulars of her application set out above. The references in her application to lack of adequate risk assessment and consultation give immediate insight to the flawed foundations of the application. The other matters raised are either misconceived or irrelevant.
- [27]Further, the subsequent references in Ms De Martin's filed submissions to e.g. discrimination, 'clinical trial', human rights, ineffectiveness of vaccines, and other breaches of statutes reveal that the essence of the case brought by Ms De Martin remains identical to dozens of others that have already been dismissed.
- [28]The Commission has considered and determined many applications made by individuals aggrieved by sanctions imposed on them for non-compliance with vaccine mandates. The numerous authorities, many of which are cited by the parties in this matter, have established a reliable body of law that has considered, over and over, the same arguments now sought to be advanced by Ms De Martin. Try as she might to describe her arguments as unique, a simple analysis of her submissions reveals that the same tedious themes lie at the foundation of her claim.
- [29]The Commission as currently constituted recently observed in Tilley v State of Queensland (Queensland Health) ('Tilley'):[8]
The Commission's resources must be reserved for matters of genuine controversy. They ought not to be made available to unreasonable individuals who, despite overwhelming legal precedent and accepted mainstream medical and scientific opinions, insist on arguing (and re-arguing) the same tedious points in a vain attempt to have their baseless views affirmed, or to delay the inevitable sanctions awaiting them for their non-compliance with a lawful direction.
- [30]While Tilley was a matter considered under s 562A of the IR Act, the basis of the Commission's consideration was largely identical, and the comment extracted above is apposite.
- [31]There is nothing unique or novel about Ms De Martin's claim. It is plainly not in the public interest for the Commission to continue expending resources dealing with individuals unable or unwilling to accept that science, medicine, and the law are overwhelmingly against them. For these reasons the application ought to be dismissed.
- [32]For completeness, it is noted that the disciplinary process undertaken in respect of Ms De Martin's non-compliance with the directive was not fully utilised. Ms De Martin did not respond to her second show cause letter and, in doing so, became disengaged with a critical aspect of the process designed to afford her procedural fairness. Importantly, this occurred in a context where Ms De Martin would have been aware that the Respondent was at that time still only considering termination of her employment.
- [33]There are no submissions before the Commission that explain Ms De Martin's decision in this regard.[9] It cannot be concluded on the current evidence that her disengagement was a deliberate or wilful repudiation of the show cause process. But it is worthy of observation that Ms De Martin's application would equally be in peril of being dismissed if the full facts confirmed that her failure to provide a response to the second show cause letter was an act of defiance, protest, or wilful disregard. Such circumstances would give rise to a compelling argument that the public interest was not served by the Commission considering the rights of an individual who had wilfully forfeited the opportunity to mitigate the outcome that they now complain of.
Orders
- [34]Accordingly, I make the following order:
- Pursuant to s 541(b)(ii) of the Industrial Relations Act 2016 (Qld), the proceeding TD/2022/54 is dismissed.
Footnotes
[1] See for example: Janulewicz v State of Queensland (Queensland Health) [2023] QIRC 026; 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.
[2] [2019] ICQ 18. Citations omitted.
[3] [2014] ICQ 006. Citations omitted.
[4] This is presumably a reference to the Nurses and Midwives (Queensland Health and Department of Education) Certified Agreement (EB11) 2022.
[5] Namely Slykerman v State of Queensland (Queensland Health) [2022] QIRC 039 and Edwards v State of Queensland (Queensland Health) [2022] QIRC 091.
[6] [2023] QIRC 058.
[7] T 1-5 – T 1-6.
[8] [2023] QIRC 262 at [33]
[9] The reply submissions purport to explain why Ms De Martin did not file a Public Service Appeal regarding the refusal of her exemption application, but do not address her failure to respond to the second show cause letter.