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  4. Drage v State of Queensland (Queensland Health) (No. 2) - [2023] QIRC 74

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Drage v State of Queensland (Queensland Health) (No. 2)[2023] QIRC 74

Drage v State of Queensland (Queensland Health) (No. 2)[2023] QIRC 74

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Drage v State of Queensland (Queensland Health) (No. 2) [2023] QIRC 074

PARTIES:

Drage, Steven

(Applicant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

TD/2022/65

PROCEEDING:

Application for reinstatement

DELIVERED ON:

3 March 2023

MEMBER:

Hartigan DP

HEARD AT:

On the papers

ORDER:

The application for reinstatement in matter TD/2022/65 is dismissed. 

CATCHWORDS:

INDUSTRIAL LAW – 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 – where applicant did not comply with the vaccination requirements – extension of time – where application filed beyond statutory time limit – length of delay – reasons for delay – prejudice to the applicant and respondent – prospects of success – whether the Commission should exercise discretion to grant extension – consideration of relevant factors – application dismissed.

LEGISLATION:

Industrial Relations Act 2016 (Qld), s 317, s 447 and s 536

Hospital and Health Boards Act 2011 (Qld), s 51E and s 66

Anti-Discrimination Act 1991 (Qld), s 7(h)

Disability Discrimination Act 1992 (Cth), s 4

CASES:

Breust v Qantas Airways Limited (1995) 149 QGIG 777

Douglas v Allen and ors [1984] FCA 77

Erhardt v Goodman Fielder Food Services Limited (1999) 163 QGIG 20

Herwin v Flexihire Pty Ltd (1995) 149 QGIF 709

Queensland Public Sector Union of Employees v Department of Corrective Services (2006) 182 QGIG 503

Rich v Chubb Protective Services (2001) 167 QGIG 159. 

Wantling v Department of Community Safety (Queensland Corrective Services) [2013] QIRC 43

Reasons for Decision

Introduction

  1. [1]
    Mr Steven Drage (“the Applicant”) applies for reinstatement[1] following the termination of his employment from his position as a Security Officer, Integrated Security Services, People and Operations at Gold Coast Hospital and Health Service (“the Department”). The Applicant contends that the dismissal was harsh, unjust and unreasonable.
  1. [2]
    I have previously released a decision in these proceedings, Drage v State of Queensland (Queensland Health) [2022] QIRC 173, granting leave to the Respondent to be legally represented pursuant to s 530(4) of the Industrial Relations Act (Qld) (“the IR Act”).
  1. [3]
    Before I consider the substance of the application, I must be satisfied that the application is one which is able to be heard.

Jurisdictional Objection

  1. [4]
    The Department raises a jurisdictional objection on the ground that the application for reinstatement was filed beyond the 21 day statutory time frame.
  1. [5]
    Section 317(2)(a) of the IR Act provides that an application for reinstatement must be made to the Commission within 21 days after the dismissal takes effect. Section 317 of the IR Act is, relevantly, in the following terms:
  1. 317
    Application for reinstatement

…

  1. (2)
    The application must be made within—
  1. (a)
    21 days after the dismissal takes effect; or
  1. (b)
    if the commission allows a further period on an application made at any time—the further period.

…

  1. [6]
    Section 317(2)(b) of the IR Act provides the Commission with a discretion to extend the time for filing of the application for reinstatement. The exercise of the discretion to extend time has been considered in previous decisions of the Commission and the Industrial Court.
  1. [7]
    In Queensland Public Sector Union of Employees v Department of Corrective Services,[2] President Hall said:

This Court has consistently adhered to the view that the 21 day limitation period imposed by s. 346 should be seen as an assessment by the legislature that in the ordinary category of case justice will be best be served by adhering to a 21 day limitation period, though on occasion the limitation period may defeat a perfectly good case.

  1. [8]
    In Wantling v Department of Community Safety (Queensland Corrective Services)[3] ('Wantling'), Deputy President O'Connor observed,[4] that the statutory time limit in s 74(2)(a)[5] "should only be departed from in the most compelling of circumstances and where necessary to ensure that justice is done between the parties." Relevantly, in Wantling, Deputy President O'Connor (citing a decision of President Hall)[6] stated as follows:[7]

His Honour President Hall outlined the effect of the limitation period set out in s. 74(2) as follows:

"The view which I expressed in Christie v Austotel Management Pty Ltd (1998) 159 QGIG 108 at 109 about the counterpart provision in the Workplace Relations Act 1997 (s. 218(3)) is equally applicable here. The power to allow a further period of time within which an application about an alleged unfair dismissal may be made is vested in the Commission by statute because by statute a time limit of 21 days is imposed and because the legislature recognised "that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case", Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553 per McHugh J (with whom Dawson J agreed). In exercising the power the legislature's choice of a 21 day limitation period must be respected, Thomasiello v Silverview Homes Pty Ltd (1997) 155 QGIG 1060 at 1060, Christie v Austotel Management Pty Ltd (1998) 159 QGIG 108 at 109. The limitation period of 21 days should not be seen as an arbitrary cut off point unrelated to the demands of justice and general purposes of the Act. It should be treated as representing the legislature's judgement that industry will best be served by applications about unfair dismissals being commenced within that brief limitation period, notwithstanding that on occasion the limitation period may defeat a perfectly good case: compare Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 540 at 553 per McHugh (with whom Dawson J agreed). Section 74(2)(b) should not be treated as having equal standing with s. 24(2)(a). Section 74(2) is not the equivalent of a rule of court providing that if a matter is not commenced within 21 days it may be commenced only with leave of the relevant tribunal. It is not the case that once an application for an extension of time within which to make an application about alleged unfair dismissal is made, the Commission is to exercise a broad discretion about whether to refuse or to grant the extension. The task confronting the Commission is to exercise a power to grant upon the footing that the interests of the Queensland industry and of those who work in it are best served by the 21 day limitation period at s. 74(2)(a). An applicant has the positive burden of demonstrating that the justice of the case requires the indulgence of the further period, Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 540 at 547 per Toohey and Gummow JJ and at 554 per McHugh J (with whom Dawson J agreed).

Subject to the above, the Act gives no direct guidance as to the basis upon which the power at s. 74(2)(b) is to be exercised. Notwithstanding the omission of the facilitative verb "may", it seems to me that like s. 218(3) of the Workplace Relations Act 1997 the power has to be approached upon the basis that the power to extend time is a "full and unlimited" discretionary power, compare Christie v Austotel Management Pty Ltd (1998) 159 QGIG 108 at 109. It is useful to marshall up the cases in which the power has been exercised (or not exercised) and distil "principles" or "guidelines" for the disposition of other cases in which the power at s. 74(2)(b) is invoked. However, any such set of "principles" or "guidelines" may not be treated as exhaustive. Neither may testing the circumstances of a particular case against the "principles" or "guidelines" become a substitute for the exercise of the power itself: compare Breust v Qantas Airways Limited (1995) 149 QGIG 777 at 778.

The exercise of the power at s. 74(2)(b) is a quintessential example of the exercise of discretion, compare Savage v Woolworths (Queensland) Pty Ltd (1999) 162 QGIG 354 at 354. The discretion is that of the Commission (not of the Court) and the Commission is allowed "some latitude as to the choice of the decision to be made", compare Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 74 ALJR 1348 at 1354 per Gleeson CJ, Gaudron and Hayne JJ."

(citations omitted)

  1. [9]
    In exercising the discretion to extend time vested by s 317 of the IR Act, the Commission has previously had regard to various key factors[8] including the following:
  1. (a)
    the length of the delay;
  1. (b)
    the explanation for the delay;
  1. (c)
    the prejudice to the applicant if the extension is not granted;
  1. (d)
    the prejudice to the respondent if the extension of time is granted; and
  1. (e)
    any relevant conduct of the respondent.
  1. [10]
    In Erhardt v Goodman Fielder Food Services Limited,[9] Vice President Linnane also noted as follows:
  1. (a)
    that the relevant provision vests an unlimited statutory discretion which must be exercised;
  1. (b)
    the time limit of 21 days provided for must be respected; and
  1. (c)
    that the applicant's prospects of success at the substantive hearing is always a relevant matter; that is, where it appears that the applicant has no, or very limited, prospects of success, the Commission should not grant an extension of time.
  1. [11]
    The Applicant bears the onus to demonstrate that the justice of the case requires an extension of time.[10]

Length of Delay

  1. [12]
    The application for reinstatement was made on 4 March 2022. The application was filed one day beyond the statutory time limit.
  1. [13]
    The Department submits that while this is not a lengthy delay, the delay must be examined in circumstances where the legislation has seen fit to allow 21 days only.
  1. [14]
    Additionally, the Department notes that its submissions should be considered in light of the fact that the letter of termination notified Mr Drage of the 21 day time limit. The letter clearly stated Mr Drage’s rights to file an application for reinstatement as follows:

Application for reinstatement

You may lodge an application for reinstatement in accordance with Chapter 8, Part 2 of the Industrial Relations Act 2016 with the Queensland Industrial Relations Commission within 21 Calendar days of receipt of this letter. Information about lodging an application for reinstatement can be obtained from the website www.qirc.qld.gov.au.

…

  1. [15]
    Mr Drage received the letter of termination on 10 February 2022, meaning that the application should have been filed on or before 3 March 2022 in order to comply with s  317(2)(a) of the IR Act. I am satisfied that the application was filed out of time.

Reasons for the delay

  1. [16]
    Mr Drage contends that the reason for the delay in filing the application for reinstatement was due to the following factors, as relevantly summarised:
  1. (a)
    Mr Drage was engaging in ongoing correspondence with the Department;
  1. (b)
    Mr Drage did not have legal representation;
  1. (c)
    Mr Drage was unable to properly communicate with the Nurses Professional Association of Queensland Union ('the NPAQ') and as a result did not receive adequate support;
  1. (d)
    Mr Drage had experienced technical difficulties on the day the application was due to be filed; and
  1. (e)
    Mr Drage was dealing with a “great deal of stress”.
  1. [17]
    Mr Drage contends that one of the reasons for the delay was that “in [his] mind, [he] was still corresponding with his employer in an attempt to resolve the dispute” with his employer.
  1. [18]
    On 1 February 2022, Mr Drage sent a show cause response to his employer. Attached to the show cause response was a purported affidavit of Mr Drage and a number of other documents. Mr Drage’s show cause response commenced with the following passages:

…

This is a final notice and statement of truth addressed to RON CALVERT, GRANT BROWN, DR  JOHN WAKEFIELD, Higher Authorities of Gold Coast University Hospital, Queensland health and you are afforded this final opportunity to rebut the affidavit before this matter goes before the court.

This notice is written in concern of a requirement made unto me, to undertake a medical treatment for the Covid-19 virus, as made on the basis that I may contract the disease and infect others thereafter and that the vaccination required of me is to safeguard the community from that disease.

It appears from the notice given, you are claiming to be acting on public health orders issued by the Chief Health Officer of the State which have not accompanied any of your previous notices in order to inspect whether such orders are mandating (contracting) and are enforceable and binding on me.

  1. [19]
    In concluding the show cause response, Mr Drage stated as follows:

…

If within twenty-eight days (28) of this notice you are not able to rebut or produce the evidence requested It shall be taken to be unwarranted coercion, workplace harassment and breach of contract agreement for which substantial compensation may be due.

…

  1. [20]
    It is clear that in the show cause response, Mr Drage continued to contest the lawfulness and reasonableness of the direction in similar terms included in his prior responses in the disciplinary process. It also appears that he purported to make a demand on his employer to “rebut” or produce the evidence requested. These demands were made in the context of the Department having substantiated the allegation and placed Mr Drage on notice that it was considering commencing disciplinary action against Mr Drage.
  1. [21]
    On 10 February 2022, the Department wrote to Mr Drage in correspondence, that firstly, considered the matters he had raised in his show cause responses and, secondly, informed him that his employment was to be terminated effective immediately from the date Mr  Drage received the letter. Additionally, the correspondence of 10 February 2022, expressly declined to provide the “legal assurances” and other information sought from Mr Drage and made clear that the correspondence of 10 February 2022 formed the entirety of the Department’s response to Mr Drage.
  1. [22]
    In the same correspondence, Mr Drage was advised of the 21 day time limitation to file an application for reinstatement.
  1. [23]
    Given that Mr Drage was advised that his employment had been terminated with immediate effect and that he was advised of his rights with respect to lodging a reinstatement application, I do not consider that it was reasonable for Mr Drage to consider the parties were still attempting to resolve the “dispute” by way of correspondence. The Department clearly identified and communicated to Mr Drage on 10 February 2022, that the employment was at an end.
  1. [24]
    Accordingly, I do not consider that this reason relied on by Mr Drage proffers a reasonable explanation for the delay.
  1. [25]
    Mr Drage also contends that a further reason for the delay was because he did not have legal representation and he did not receive adequate support from the Nurses Professional Association of Queensland Union (“the NPAQ”).
  1. [26]
    It could not be said that a failure to have legal representation is, in and of itself, a reasonable explanation for the delay. Self-represented litigants regularly file documents within the prescribed statutory time frame and appear before the Commission. Here, Mr Drage was advised of his entitlements with respect to filing an application and the time limits that applied to such an application at the time of the termination of his employment. He was advised that such an application could be lodged with the Commission and was provided with the Commission’s website details.
  1. [27]
    I am satisfied that despite Mr Drage choosing not to be legally represented that Mr Drage was made aware by the Department of his entitlement to lodge an application for reinstatement in the Commission within 21 calendar days at the time his employment ended.
  1. [28]
    Mr Drage also refers to and attaches correspondence to and from Leigh Kendall. Mr  Drage does not identify who Leigh Kendall is beyond their name. It can be inferred from the documents attached to Mr Drage’s reply that Leigh Kendall had forwarded to Mr Drage a document he refers to as a “Liability Contract and Continuance Document”. This document refers to Leigh Kendall acting as Mr Drage’s “representative” although it is not identified in what representative capacity. Mr Drage submits that he received the document on 24 February 2022, and ultimately formed the view that he did not wish to sign the document or have Leigh Kendall represent him.
  1. [29]
    Mr Drage submits that he had a conversation with Leigh Kendall on 2 March 2022 which was disconnected during the course of the conversation.
  1. [30]
    Mr Drage further submits that he sent a message to Leigh Kendall on 2 March 2022 advising that he did not want to sign the document. Mr Drage states that on 3  March  2022, Leigh Kendall sent him a message, at 7:53am, to say they would not represent him.
  1. [31]
    The application for reinstatement was due to be filed by no later than 3 March 2022.
  1. [32]
    Mr Drage’s correspondence and communication with Leigh Kendall and his ultimate decision not to engage Leigh Kendall as a representative does not provide a reasonable explanation for the delay. Relevantly, Mr Drage’s discussions with Leigh Kendall were conducted whilst Mr Drage was on notice of the time limitation to file the application for reinstatement. Further, the decision to not engage Leigh Kendall was communicated within the 21 day period.
  1. [33]
    Mr Drage submits that following his discussions with Leigh Kendall he “needed to seek further legal advice at which time the details were provided to another party for consultation and better advice”. Mr Drage does not provide any evidence to support this submission including the details of whom he contacted and the nature of his enquiry for advice and when he received such advice, if indeed he did.
  1. [34]
    It appears on the material before me that instead of filing the application for reinstatement on 3 March 2022, after being advised that Leigh Kendall would not represent him, Mr  Drage chose to take alternative steps which purportedly included him seeking further legal advice. I do not consider this to be a reasonable explanation for the delay.
  1. [35]
    A further reason Mr Drage relies on as an explanation for the delay is that he had prior dealings with the NPAQ which were unsatisfactory.
  1. [36]
    Mr Drage lists interactions with the NPAQ before the termination of his employment. Relevantly, he contends that he was not satisfied with their assistance during the show cause process and he was concerned about using the NPAQ going forward.
  1. [37]
    It appears that while Mr Drage contacted the NPAQ shortly after the termination of his employment, he did not engage them to act on his behalf in this matter. Mr Drage’s interaction with the NPAQ, on his submissions, ceased on 17 February 2022, well within the 21 day time limit to file the application for reinstatement.
  1. [38]
    I do not consider that Mr Drage’s dissatisfaction with the NPAQ provides a reasonable explanation for the delay.
  1. [39]
    Mr Drage further contends that he encountered technical issues with filing his application for reinstatement on 4 March 2022. Mr Drage’s application for reinstatement was ultimately accepted for filing on 4 March 2022. Mr Drage’s alleged difficulties with filing the application for reinstatement on 4 March 2022, can not provide a reasonable explanation for the delay as the 21 day time period had already lapsed prior to Mr Drage’s attempt to file the application.
  1. [40]
    Finally, Mr Drage seeks to explain the delay on the basis that he was suffering from stress. It is accepted, as a general proposition, that an employee who finds themselves in a position where their employment has been terminated following a show cause process may feel stressed. In order for such a condition to be accepted as a reasonable explanation for the delay, the employee must provide probative information, potentially in the form of medical evidence, to support their position that the condition was the cause of the delay. Mr  Drage does not provide any probative information to support his general claim that he was feeling stressed. Relevantly, Mr Drage does not address how the alleged stress caused him to delay filing the application within time. I do not consider this to be a reasonable explanation for the delay.
  1. [41]
    I am not satisfied that Mr Drage has provided a reasonable explanation for the delay.

Prejudice to the parties

  1. [42]
    The Department submits that although the prejudice they may suffer may not be substantial, this should not justify granting Mr Drage an extension of time. The Department submits that it does not inevitably follow that an absence of prejudice to the employer means that the Commission should accept the application.
  1. [43]
    I accept that the absence of prejudice to the employer is not of itself, sufficient to justify an extension of time.[11] Accordingly, I consider prejudice to the employer to be a neutral consideration.
  1. [44]
    The prejudice to Mr Drage is clear, in so far as, if an extension of time is not granted, he will be unable to proceed to have his application for reinstatement heard and determined.

Merits of the Application

  1. [45]
    The onus rests on Mr Drage to demonstrate, that, if an extension of time were to be granted, he has reasonable prospects of success.
  1. [46]
    It has been held that an Applicant’s prospects of success are always a relevant matter.[12] For instance, where it appears that an Applicant has no, or very limited prospects of success, the Commission should not grant an extension of time.
  1. [47]
    In Herwin v Flexihire Pty Ltd,[13] Mackenzie P noted:

It is not the function of an Industrial Commissioner to examine minutely the merits of the case upon an application for extension of time in which to apply under s 175. However, where it is patently clear that the basic facts are essentially uncontested, and that on those facts the prospects of success are minimal, is not an error principal for the Industrial Commissioner to take that into account in refusing leave to appeal.

  1. [48]
    The Department terminated the Applicant's employment following the substantiation of the following allegation:

Allegation:Between 11 September 2021 and 8 November 2021, you did not provide the Health Service with evidence of vaccination confirming that you have received the prescribed number of doses of a COVID-19 vaccine.

('the allegation').

  1. [49]
    The Department determined that Mr Drage had contravened, without reasonable excuse, a direction given to him as a public service employee pursuant to s 187(1)(d) of the Public Service Act 2008[14] (“the PS Act”). The Department submits that the decision to terminate Mr  Drage's employment was procedurally fair.
  1. [50]
    Mr Drage does not deny that he failed to provide the Department with evidence of vaccination confirming that he has received the prescribed number of doses of a COVID- 19 vaccine. To that extent, the basic facts of this matter are uncontested.
  1. [51]
    Rather, Mr Drage submits that the termination of his employment with the Department was harsh, unjust and unreasonable for the following summarised reasons:
  1. (a)
    that Mr Drage was discriminated against on the basis of disability;
  1. (b)
    that Mr Drage's human rights were restricted during the disciplinary process;
  1. (c)
    that the Department breached his employment contract because the contract did not state that receiving the prescribed doses of a COVID-19 vaccine was a condition of employment or that vaccines are in a trial phase;
  1. (d)
    that the Department did not conduct adequate risk assessments of the COVID-19 vaccine; and
  1. (e)
    that the Department submitted a leave request form on Mr Drage's behalf without his approval.
  1. [52]
    From the material filed in this proceeding the following further matters appear to be uncontentious:

…

  1. On 29 January 2020, a public health emergency was declared for the whole of Queensland under the Public Health Act 2005, due to the outbreak of COVID-19 and the health implications to Queensland.
  1. On 11 September 2021, Dr John Wakefield PSM, Director-General, Department of Health issued the Directive (attached as R-1). The Requirements were issued in September 2021 and adopt the operative clauses of the Directive (attached as R-2).
  1. The Directive and Requirements set 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. Sections 51 A of the HHB Act provides for the issuing of health employment directives and is set out in the following terms:
  1. 51A
    Health employment directives
  1. (1)
    The chief executive may issue health employment directives about the conditions of employment for health service employees.
  1. (2)
    Without limiting subsection (1), a health employment directive may be about the following –
  1. (a)
    remuneration of health executives and senior health service employees;
  1. (b)
    the classification levels at which health executives and senior health service employees are to be employed;
  1. (c)
    the terms of contracts for health executives and senior health service employees;
  1. (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;
  1. (b)
    health service employees, or stated type of health service employee.

…

  1. [53]
    Section 51E of the HHB Act relevantly states:

51E Health employment directives binding

  1. (1)
    A health employment directive that applies to an employee of the department is binding on the employee and the department.
  1. (2)
    A health employment directive that applies to an employee of a Service is binding on the employee and the Service.

Note –

A health employment directive may apply to both employees of a department and a Service. See section 51A(3).

  1. [54]
    It appears that Mr Drage contends that the Directive was not reasonable or lawful on the basis of the matters referred to in paragraph 51 herein.
  1. [55]
    With respect to Mr Drage’s contention that he was discriminated against on the basis of a disability, he has failed to provide submissions or evidence that might relevantly establish that he has the attribute of an “impairment”[15] within the meaning of that term in the Anti-Discrimination Act 1991 (Qld) (“the AD Act”), or a “disability”[16] within the meaning of that term in the Disability Discrimination Act 1992 (Cth) (“the DD Act”) and that he had been subjected to either direct or indirect discrimination within the meaning of those terms in the AD Act and DD Act, respectively.
  1. [56]
    Further, Mr Drage has not asserted how the reason nominated by the Department for the termination of his employment, namely that he failed to provide evidence of vaccination confirming that he had had the prescribed number of doses of the COVID-19 vaccine, is discriminatory on the basis of him having an impairment or disability.
  1. [57]
    I am not satisfied that Mr Drage has established that he has reasonable prospects of success with respect to this contention.
  1. [58]
    With respect to Mr Drage’s contention that his human rights were restricted; that contention does not appear to be in dispute. The letter of termination had regard to Mr Drage’s human rights as follows:

Human Rights considerations

I acknowledge my decision to take the disciplinary action of termination of your employment may impact your human rights, including the right to take part in public life (through employment with the public service) and the right to privacy and reputation (which extends to protect professional relationships and reputation), as the disciplinary action of termination of your employment will form part of your formal disciplinary history, which may need to be disclosed in certain circumstances.

However, in my view, any limitation on your human rights caused by the disciplinary action of termination of your employment is demonstrably justified. This is because of the public interest in ensuring the Health Service is ready and able to respond to the COVID-19 pandemic and maintaining public trust and confidence in the Health Service and its employees outweighs the impacts on your human rights. Further, as detailed above, you were afforded an opportunity to respond to the proposed disciplinary action of termination of your employment before I made a decision in this regard and, in making my decision, I considered the alternative disciplinary action available to me.

…

  1. [59]
    Accordingly, it is evident that regard was had to Mr Drage’s human rights and the potential restriction of those rights by the decision to terminate Mr Drage’s employment. Ultimately, the decision maker determined that any limitation of Mr Drage’s human rights by the termination of his employment is demonstrably justified. Mr Drage does not provide any submissions that contends that the conclusion formed by the decision maker, when undertaking the human rights consideration of the impact of the decision to terminate Mr Drage’s employment, is flawed or renders the dismissal as unfair within the meaning of the Act.
  1. [60]
    Mr Drage further contends that the Department breached his employment contract because his contract of employment did not include the vaccination requirement as a condition of his employment. In making this submission, Mr Drage does not address s  66 of the HHB Act which states that the conditions of employment are governed by the HHB Act, the IR Act, the applied Public Service law, the applicable industrial instrument, health employment directives and if a fixed term contract employee – the terms of that contract.
  1. [61]
    Further, Mr Drage’s submissions do not address, despite it being raised in the Employer’s Response and during the show cause process, the effect of s 51E of the HHB Act and how he would overcome, at the hearing of the matter, the effect of s 51E of the HHB Act. Relevantly, s 51E of the HHB Act provides that a directive applies to an employee of the Department and is binding on the employee and the Department.
  1. [62]
    Mr Drage has not attempted to address how he would attempt to overcome the operation of s 51E and s 66 of the HHB Act with respect to this contention. Consequently, on the material before me, I consider Mr Drage has limited prospects of success with respect to this contention.
  1. [63]
    Mr Drage also contends that the Department did not conduct adequate risk assessments and further, that the Department did not consult with Mr Drage regarding the proposed changes to his employment terms.
  1. [64]
    These contentions are a repetition of the matters raised by Mr Drage during the show cause process. In response, during the show cause process, the Department wrote to Mr Drage[17] setting out the occasions and the method adopted by Queensland Health to undertake risk assessments and to consult with respect to the Directive. Mr Drage is in receipt of that information. Mr Drage does not identify, in any particularised or meaningful manner, the alleged inadequacies with the Department’s risk assessment and consultation process nor does he articulate the arguments he would raise to dispute the Department’s position that such risk assessments and consultations occurred. Rather, Mr Drage baldly asserts his position without putting forward any meaningful arguments he would raise to dispute the Department’s position. Further, Mr Drage’s submissions contain a number of propositions and questions which are put rhetorically and fail to clearly articulate Mr Drage’s point. I consider this contention has limited prospects of success.
  1. [65]
    Finally, Mr Drage submits that his dismissal is unfair because the Department submitted a leave request form on behalf of Mr Drage. Mr Drage does not articulate in his submissions why this contention supports a conclusion that the dismissal was unfair.
  1. [66]
    From the material filed in the proceedings, it appears that a leave request form was submitted by Mr Drage’s work unit who were unaware that Mr Drage had been suspended on full pay. Mr Drage raised the issue with the Department’s human resources unit on 30 December 2022. The Department contends that the leave request was made in error and on 4 January 2022, the Department reversed the leave request.
  1. [67]
    The Department properly acknowledges that an error was made, and it is noted that the Department remedied the error within five days of being notified of it by Mr Drage. Accordingly, it appears that the issue was resolved prior to the termination of Mr Drage’s employment.
  1. [68]
    Mr Drage does not identify how this matter is relevant to the determination to be made by the Commission as to whether the dismissal was unfair within the meaning of the Act. Mr Drage has failed to establish the relevance of this contention to his matter. Accordingly, I consider Mr Drage has limited prospects of success with respect to this contention.
  1. [69]
    I do not consider that the matters raised by Mr Drage are matters which fall in Mr Drage’s favour when assessing the merit of his matter.

Conclusion

  1. [70]
    For the reasons I have identified above, I have concluded that the application for reinstatement was filed out of time in circumstances where the 21 day time period within which to file had been communicated to Mr Drage. I am not satisfied that the numerous reasons put forward by Mr Drage establishes a reasonable explanation for the delay. I have further determined that Mr Drage has limited prospects of success and this is a factor which I consider weighs against the exercise of my discretion to extend the time for filing the application. Having regard to the circumstances of this matter, there are no other factors present that would persuade me to extend time.
  1. [71]
    Accordingly, Mr Drage has failed to discharge the onus placed on him to establish that the justice of this case supports the exercise of my discretion to grant an extension of time.
  1. [72]
    For these reasons, I have determined not to exercise my discretion to extend time to Mr Drage within which to lodge his application for reinstatement.

Order

  1. [73]
    Accordingly, I make the following order:

The application for reinstatement in matter TD/2022/65 is dismissed.

Footnotes

[1] Industrial Relations Act 2016 (Qld), s 317.

[2] (2006) 182 QGIG 503. 

[3] [2013] QIRC 43. 

[4] Ibid, [49].

[5] s 74(2)(a) of the Industrial Relations Act 1999 (Qld) is in the same terms as s 317 of the Industrial Relations Act 2016 (Qld).

[6] Rich v Chubb Protective Services (2001) 167 QGIG 159. 

[7] Ibid, [26].

[8] See Breust v Qantas Airways Limited (1995) 149 QGIG 777.

[9] (1999) 163 QGIG 20.

[10] Rich v Chubb Protective Services (2001) 167 QGIG 159. 

[11] Douglas v Allen and ors [1984] FCA 77.

[12] Erhardt v Goodman Fielder Food Services Limited (1999) 163 QGIG 20.

[13] (1995) 149 QGIG 709.

[14] The Public Service Act 2008 (Qld) has since been repealed and the equivalent provision currently applicable is s 91 of the Public Sector Act 2022 (Qld).

[15] Anti Discrimination Act 1991 (Qld), s 7(h).

[16] Disability Discrimination Act 1992 (Cth), s 4.

[17] Correspondence from Queensland Health to Supportah Australia Pty Ltd – Annexure R-12 to Employer Response.

Close

Editorial Notes

  • Published Case Name:

    Drage v State of Queensland (Queensland Health) (No. 2)

  • Shortened Case Name:

    Drage v State of Queensland (Queensland Health) (No. 2)

  • MNC:

    [2023] QIRC 74

  • Court:

    QIRC

  • Judge(s):

    Hartigan DP

  • Date:

    03 Mar 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
Breust v Qantas Airways Limited (1995) 149 QGIG 777
3 citations
Jump To
Cite 1 - (1995) 149 QGIG 777
Cite 2 - (1995) 149 QGIG 777
Cite 3 - (1995) 149 QGIG 777
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
1 citation
Jump To
Cite 1 - (1996) 186 CLR 541
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 540
2 citations
Jump To
Cite 1 - (1996) 186 CLR 540
Cite 2 - (1996) 186 CLR 540
Christie v Austotel Management Pty Ltd (1998) 159 QGIG 108
3 citations
Jump To
Cite 1 - (1998) 159 QGIG 108
Cite 2 - (1998) 159 QGIG 108
Cite 3 - (1998) 159 QGIG 108
Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 74 ALJR 1348
1 citation
Jump To
Cite 1 - (2000) 74 ALJR 1348
Douglas v Allen and ors [1984] FCA 77
2 citations
Jump To
Cite 1 - [1984] FCA 77
Cite 2 - [1984] FCA 77
Drage v State of Queensland (Queensland Health) [2022] QIRC 173
1 citation
Jump To
Cite 1 - [2022] QIRC 173
Erhardt v Goodman Fielder Food Services Ltd. (1999) 163 QGIG 20
3 citations
Jump To
Cite 1 - (1999) 163 QGIG 20
Cite 2 - (1999) 163 QGIG 20
Cite 3 - (1999) 163 QGIG 20
Herwin v Flexihire Pty Ltd (1995) 149 QGIF 709
1 citation
Jump To
Cite 1 - (1995) 149 QGIF 709
Herwin v Flexihire Pty Ltd (1995) 149 QGIG 709
1 citation
Jump To
Cite 1 - (1995) 149 QGIG 709
Savage v Woolworths (Queensland) Pty Ltd (1999) 162 QGIG 354
1 citation
Jump To
Cite 1 - (1999) 162 QGIG 354
Shane Rich v Chubb Protective Services (2001) 167 QGIG 159
4 citations
Jump To
Cite 1 - (2001) 167 QGIG 159
Cite 2 - (2001) 167 QGIG 159
Cite 3 - (2001) 167 QGIG 159
Cite 4 - (2001) 167 QGIG 159
The Queensland Public Sector Union of Employees v Department of Corrective Services (2006) 182 QGIG 503
2 citations
Jump To
Cite 1 - (2006) 182 QGIG 503
Cite 2 - (2006) 182 QGIG 503
Thomasiello v Silverview Homes Pty Ltd (1997) 155 QGIG 1060
1 citation
Jump To
Cite 1 - (1997) 155 QGIG 1060
Wantling v Department of Community Safety (Queensland Corrective Services) [2013] QIRC 43
3 citations
Jump To
Cite 1 - [2013] QIRC 43
Cite 2 - [2013] QIRC 43
Cite 3 - [2013] QIRC 43

Cases Citing

Case NameFull CitationFrequency
Claus v Rockhampton Regional Council [2025] QIRC 882 citations
Drage v State of Queensland (Queensland Health) [2023] ICQ 225 citations
Koenders v State of Queensland (Queensland Corrective Services) [2023] QIRC 3203 citations
Taylor v State of Queensland (Queensland Corrective Services) [2023] QIRC 2312 citations
Zadravec v Mornington Shire Council [2025] QIRC 941 citation
1

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