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  4. Patmore v State of Queensland (Queensland Health) - [2023] QIRC 47

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Patmore v State of Queensland (Queensland Health)[2023] QIRC 47

Patmore v State of Queensland (Queensland Health)[2023] QIRC 47

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Patmore v State of Queensland (Queensland Health) [2023] QIRC 047

PARTIES:

Patmore, Simon

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

PSA/2022/840

PROCEEDING:

Public Service Appeal – Appeal against a disciplinary decision

DELIVERED ON:

15 February 2023

MEMBER:

Hartigan DP

HEARD AT:

On the papers

ORDER:

  1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed.
  1. Pursuant to s 566(1)(b) of the Industrial Relations Act 2016 (Qld), the stay of the decision appealed against made on 16  September 2021 be revoked.

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – public service appeal – appeal against a disciplinary finding – where respondent alleges that appellant did not comply with Health Employment Directive No 12/21 Employee COVID-19 vaccination requirements – where allegation substantiated – where appellant submits that decision is unfair and unreasonable –  consideration of relevant factors – decision confirmed – stay of decision revoked

LEGISLATION:

Industrial Relations Act 2016 (Qld), s 562, s 562B and s 562C

Public Service Act 2008 (Qld) s 137, s 187 and s  194

Health Employment Directive No 12/21 Employee COVID-19 vaccination requirements cl 1,cl 6, cl 7, cl 8 and cl 10

Hospital and Health Boards Act 2011 (Qld) s 51A

CASES:

Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245

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

Reasons for Decision

Introduction

  1. [1]
    Mr Simon Patmore is employed by the State of Queensland (Queensland Health) ('the Department') as a Senior Technology Officer, Digital Services at Metro North Hospital and Health Service.
  1. [2]
    Mr Patmore has been employed with the Department since 2007.
  1. [3]
    Mr Patmore appeals a disciplinary decision dated 16 August 2022, made by the Department.
  1. [4]
    On 30 May 2022, the Department put an allegation, associated with Mr Patmore's failure to comply with a workplace directive, to Mr Patmore for his response. Specifically, Mr  Patmore was invited to show cause in relation to the allegation that he failed to follow Directive 12/21 ('the allegation'), which required employees to have received two (2) doses of a COVID-19 vaccine by 31 October 2021.
  1. [5]
    On 5 August 2022, Mr Patmore provided a response to the allegation.
  1. [6]
    By letter dated 16 August 2022, the Department advised Mr Patmore that the allegation was substantiated, and that the Department was proposing disciplinary action in the form of termination of his employment ('the decision'). The Department also provided Mr Patmore with seven days to show cause why disciplinary action should not be taken.
  1. [7]
    By appeal notice filed in the Industrial Registry on 12 September 2022, Mr Patmore, pursuant to Ch. 7, Pt. 1 of the PS Act, appeals the disciplinary decision. Mr Patmore relies on the following matters, as relevantly summarised, in support of his appeal:
  1. (1)
    the Department has failed to explore alternative roles for Mr Patmore so that he can continue to work for Queensland Health;
  1. (2)
    the Department has not properly considered the impacts termination of employment may have on Mr Patmore given that he has a disability and that there may be limited opportunities for him to secure alternative employment;
  1. (3)
    Mr Patmore has an exemplary employment record and has been with the Department for approximately 15 years;
  1. (4)
    the Department has not considered Mr Patmore's contribution in terms of his sporting achievements; and
  1. (5)
    that the Department has not taken into account the reasons as to why Mr  Patmore has not received the prescribed doses of a COVID-19 vaccination.
  1. [8]
    On 16 September 2022, following a review of the appeal, the Commission listed the matter for mention to seek clarification from Mr Patmore with respect to the appeal filed, in particular, identifying the relevant decision that Mr Patmore sought to appeal. 
  1. [9]
    Following the mention, the Commission issued directions for the filing and serving of written material in support of the appeal. The Commission also ordered that the decision subject of this appeal be stayed until further determination of the appeal or further order of the Commission pursuant to s 566(1) of the Industrial Relations Act 2016 (Qld) ('the IR Act').
  1. [10]
    Both parties complied with the direction.
  1. [11]
    The appeal is made pursuant to s 197 of the Public Service Act 2008 (Qld) ('the PS Act'), which provides that an appeal under Ch. 7, Pt. 1 of the PS Act is to be heard and determined under Ch. 11 of the IR Act by the Queensland Industrial Relations Commission.
  1. [12]
    Section 562B(3) of the IR Act provides that the purpose of an appeal is to decide whether the decision appealed against was fair or reasonable. Accordingly, the issue for my determination in this appeal is whether the decision is fair and reasonable.
  1. [13]
    I must decide the appeal by reviewing the decision appealed against. The word "review" has no settled meaning and, accordingly, it must take its meaning from the context in which it appears.[1]   An appeal under Ch. 7, Pt. 1 of the PS Act is not by way of re-hearing, rather, it involves a review of the decision arrived at and the decision-making process associated with it.[2] 
  1. [14]
    For the reasons contained herein, I have found that the decision was fair and reasonable.

The decision

  1. [15]
    As referred to above, the decision, which is the subject of this appeal, is the disciplinary decision imposing the penalty action.
  1. [16]
    The decision relates to an allegation put by the Department on 30 May 2022 ('the show cause notice') to Mr Patmore regarding his alleged conduct as follows:

Allegation 1

It is alleged that you have failed to follow a reasonable and lawful direction to comply with the vaccination requirements set out in the Directive.

  1. [17]
    The decision maker provided the following in support of the decision:

I have now considered all the information available to me. This letter is to inform you of my decision and how I intend to proceed.

Your Response

In your response dated 5 August 2022, you advise (in part) that:

  • "My fiancé miscarried around the same time as staff were being pressured to become vaccinated or lose their job."
  • "I don't work in a facility that provides healthcare. I work in an office that is not on a hospital site"
  • "Metro North has failed to explore alternative roles for me so that I can continue to work for Queensland Health."
  • "I therefore request that the disciplinary process be put on hold until alternative employment options have been adequately explored."
  1. My Decision

As advised in my previous letter I must decide whether the events described in the Allegation is likely to be accurate using the "the balance of probabilities".

I have carefully considered the Allegation and the relevant information that I have been provided including your response dated 5 August 2022. I have decided:

  1. Allegation 1 is likely to have occurred and is therefore substantiated

I have attached a "Statement of Reasons" (Attachment 1) to this letter which explains why I made this decision.

  1. [18]
    The Statement of Reasons provides as follows:

I have carefully considered all of the information available to me, including your response dated 5  August 2022, however all the information may not be specifically mentioned in my decision.

Allegation 1: You failed to follow a reasonable and lawful direction to comply with the vaccination requirements set out in the Directive.

You provided a response to this allegation dated 5 August 2022.

It is the Health Service's view that due process has been followed regarding this matter. The Directive came into effect on 11 September 2021 and the Health Service made its employees aware of the requirements of the Directive and provided sufficient time for employees to comply with the Directive.

Further, you were provided with an opportunity to show cause as to why you should not be disciplined in relation to the Allegation and any suspension without pay. I advise the Allegation and supporting particulars were outlined in my correspondence to you dated 30 May 2023 (Show Cause Letter) and you were provided with a reasonable timeframe of 14 days to respond.

The decision to direct you to comply with the vaccination requirements set out in the Directive was made considering the significant risk to the health and safety of healthcare workers, support staff, their families, and the patients under our care. I note the serious nature of your conduct and the risk for the health and safety of yourself, other employees and others within the Health Service.

I note on 13 January 2023, Mr Alister Whitta, Chief Finance and Corporate Officer, the Health Service provided you with a reasonable and lawful direction to comply with the Directive. I note to date you have not provided evidence that you have complied with the Directive or are intending to comply with the Directive.

Accordingly, I find on the balance of probabilities Allegation 1 is substantiated.

Relevant legislation

  1. [19]
    Section 194 of the PS Act relevantly identifies the decisions against which appeals may be made:

194  Decisions against which appeals may be made

  1. (1)
    An appeal may be made against the following decisions—

…

  1. (b)
    a decision under a disciplinary law to discipline—
  1. (i)
    a person (other than by termination of employment), including the action taken in disciplining the person;

…

  1. [20]
    Section 187 of the PS Act sets out the grounds for discipline and disciplinary action generally as follows:

187 Grounds for discipline

  1. (1)
    A public service employee’s chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has—
  1. (a)
    engaged in repeated unsatisfactory performance or serious under performance of the employee’s duties, including, for example, by performing duties carelessly, incompetently or inefficiently; or
  1. (b)
    been guilty of misconduct; or
  1. (c)
    been absent from duty without approved leave and without reasonable excuse; or
  1. (d)
    contravened, without reasonable excuse, a direction given to the employee as a public service employee by a responsible person; or
  1. (e)
    used, without reasonable excuse, a substance to an extent that has adversely affected the competent performance of the employee’s duties; or

(ea) contravened, without reasonable excuse, a requirement of the chief executive under section 179A(1) in relation to the employee’s appointment, secondment or employment by, in response to the requirement—

  1. (i)
    failing to disclose a serious disciplinary action; or
  1. (ii)
    giving false or misleading information; or
  1. (f)
    contravened, without reasonable excuse, a provision of this Act; or
  2. (g)
    contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action.

…

  1. [21]
    Directive 12/21 sets out the mandatory vaccination requirements for all current and prospective health service employees employed under the Hospital and Health Boards Act 2011 (Qld) ('HHB Act').
  1. [22]
    Section 51A of the HHB Act provides for the issuing of health employment directives and is set out in the following terms:

51A Health employment directives

  1. (1)
    The chief executive may issue health employment directives about the conditions of employment for health service employees.
  2. (2)
    Without limiting subsection (1), a health employment directive may be about the following—
  1. (a)
    remuneration for health executives and senior health service employees;
  2. (b)
    the classification levels at which health executives and senior health service employees are to be employed;
  3. (c)
    the terms of contracts for health executives and senior health service employees;
  4. (d)
    the professional development and training of health service employees in accordance with the conditions of their employment.
  1. (3)
    A health employment directive may apply to any or all of the following—
  1. (a)
    the department, a Service or all Services;
  2. (b)
    health service employees, or a stated type of health service employee.

…

  1. [23]
    Section 51(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.
  1. [24]
    Clause 1 of Directive 12/21 provides that compliance with the Directive is mandatory.
  1. [25]
    Clause 2 provides that the purpose of Directive 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.
  1. [26]
    Clause 6 of Directive 12/21 identifies the potential risk posed to relevant employees, and the risk profile of those employees as follows:

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).
  1. [27]
    Clause 7 of Directive 12/21 sets out the requirements for vaccination. Relevantly, cl 7.1 states:

In acknowledgment of the risks posed by the COVID-19 virus to the health and safety of Queensland Health employees, patients and the broader community, clauses 8 and 9 of this HED 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 (below), to be vaccinated as a condition of employment, subject to certain limited exemptions described in clause 10 of this HED.

  1. [28]
    Clause 7.1 of Directive 12/21 also includes a table[3] which separates Queensland Health employees into a group number based on their employee cohort. Mr Patmore falls within Group 3, which covers an employee cohort of all health service employees who are employed to work in a hospital or other facility where clinical care or support is provided.
  1. [29]
    Clause 8 of Directive 12/21 sets out the mandatory vaccine requirements for existing employees as follows:

8.1  Existing employees currently undertaking work or moving into a role undertaking work listed in a cohort of Table 1, must:

  1. have received at least the first dose of a COVID-19 vaccine by 30 September 2021; and
  2. 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:
  1. 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.
  2. 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.
  1. [30]
    Clause 10 of Directive 12/21 provides that where an employee is unable to be vaccinated, and exemption may be granted as follows:

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.

…

Whether the decision was fair and reasonable

  1. [31]
    As noted above, the role of the Commission in an appeal such as this, is to conduct a review of the decision to determine whether it is fair and reasonable. Relevantly, the decision Mr Patmore appeals is a decision substantiating the allegation. Whilst Mr  Patmore is placed on notice that following the substantiation of the allegation, the Department is considering imposing disciplinary action, including the termination of his employment, no decision with respect to the disciplinary action has yet been made.
  1. [32]
    In his written submissions, Mr Patmore refers to the nature of the appeal and properly makes the following concession:

10. However, having considered the outcomes of other Public Service Appeals (and similar processes) relating to vaccination compliance, including decisions of the QIRC, I recognise any further challenge to disciplinary action being taken against me is likely to be unsuccessful.

…

  1. [33]
    Mr Patmore, continues however by submitting that:

11. I remain hopeful however that Metro North will finally engage with me to explore alternative employment options other than the termination of my employment to resolve this issue and provide me with ongoing employment.

12. It has the opportunity resolve this issue fairly and equitably - without the need for a decision to be made by the Commission, or for potential escalation of this matter either politically or publicly.

…

  1. [34]
    Mr Patmore’s submissions focus primarily on what he considers to be a failure by the Department to explore alternative employment opportunities for Mr Patmore to allow him to avoid compliance with Directive 12/21, and why he considers the proposed disciplinary action of termination of employment should be reconsidered. Those matters are not relevant to my consideration of whether the decision substantiating the allegation was fair and reasonable.
  1. [35]
    Mr Patmore’s submissions do not go far to address why he considers the decision to substantiate the allegation was not fair and reasonable.
  1. [36]
    Relevantly, Mr Patmore has not identified any error in the conclusion that he failed to follow a reasonable and lawful direction to comply with the vaccination requirements set out in Directive 12/21. Indeed, on the material it is clear that Mr Patmore, after failing to be granted an exemption, did not comply with Directive 12/21 and by his submissions, it is clear that Mr Patmore does not intend to do so in the future.
  1. [37]
    Neither has Mr Patmore sought to argue any error with respect to the facts relied on in support of the decision to substantiate the allegation. Indeed he accepts that he has not become vaccinated for what he calls “personal reasons”.
  1. [38]
    Mr Patmore objects to being described as “vaccine hesitant” and submits that he is not and “anti-vaxer” and that he has received a range of vaccinations in order to travel to and compete as an athlete in different countries. Relevantly, however, Mr Patmore has not been vaccinated in accordance with his employer’s direction.
  1. [39]
    Whilst Mr Patmore is entitled to hold a personal view with respect to the vaccine, the exercise of his personal choice to refuse to comply with Directive 12/21 (in the absence of an exemption) as required by his employer, necessarily will have consequences for him in the workplace.
  1. [40]
    Whilst Mr Patmore clearly has a personal view with respect to the vaccine, it is not incumbent upon his employer to accept Mr Patmore’s view nor, as his submissions seem to suggest, it is incumbent on his employer to find alternative roles in order for Mr  Patmore to avoid his workplace obligations to comply with Directive 12/21.
  1. [41]
    The facts on the material before me support a conclusion that Mr Patmore has not followed a lawful and reasonable direction to receive the prescribed doses of a COVID- 19 vaccination. Accordingly, I consider it was open on the material available to the decision maker to make a disciplinary finding against Mr Patmore. I have concluded that the decision is fair and reasonable.

Order

  1. [42]
    Accordingly, I make the following orders:
  1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed.
  1. Pursuant to s 566(1)(b) of the Industrial Relations Act 2016 (Qld), the stay of the decision appealed against made on 16 September 2021 be revoked.

Footnotes

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

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

[3] Table 1.

Close

Editorial Notes

  • Published Case Name:

    Patmore v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Patmore v State of Queensland (Queensland Health)

  • MNC:

    [2023] QIRC 47

  • Court:

    QIRC

  • Judge(s):

    Hartigan DP

  • Date:

    15 Feb 2023

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Brandy v Human Rights & Equal Opportunity Commission (1995) 183 CLR 245
2 citations
Jump To
Cite 1 - (1995) 183 CLR 245
Cite 2 - (1995) 183 CLR 245
Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10
2 citations
Jump To
Cite 1 - [1995] HCA 10
Cite 2 - [1995] HCA 10
Goodall v State of Queensland [2018] QSC 319
2 citations
Jump To
Cite 1 - [2018] QSC 319
Cite 2 - [2018] QSC 319

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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