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Foenander v State of Queensland (Queensland Health)[2024] QIRC 253

Foenander v State of Queensland (Queensland Health)[2024] QIRC 253

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Foenander v State of Queensland (Queensland Health) [2024] QIRC 253

PARTIES:

Foenander, David

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

PSA/2023/236

PROCEEDING:

Public Sector Appeal – Disciplinary Decision

DELIVERED ON:

30 October 2024

MEMBER:

McLennan IC

HEARD AT:

On the papers

ORDERS:

Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appealed against is confirmed.

CATCHWORDS:

PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – public sector appeal – appeal against a disciplinary decision – where the appellant did not comply with Health Employment Directive No. 12/21 to receive two doses of the vaccine by the prescribed date – whether the disciplinary action decision was fair and reasonable – where the penalty imposed is a reduction of remuneration – where decision is fair and reasonable

LEGISLATION AND INSTRUMENTS:

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

Industrial Relations Act 2016 (Qld) s 451, s 562B, s 562C, s 564

Public Sector Act 2022 (Qld) s 3, s 19, s 92, s 93, s 131, 134

Directive 05/23: Discipline cl 9, cl 13

Health Employment Directive No. 12/21 cl 7, cl 8

CASES:

Bakhash v State of Queensland (Department of Education) [2022] QIRC 362

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

Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320

State of Queensland (Queensland Health) v Hume [2024] ICQ 3

Stevens v Epworth Foundation [2022] FWC 593

Tilley v State of Queensland (Queensland Health) (Disciplinary Decision) [2024] QIRC 252

Tilley v State of Queensland (Queensland Health) [2022] QIRC 2

Wong v Commonwealth of Australia and Anor Selim v Lele, Tan and Rivett constituting the Professional Services Review Committee No 309 [2009] HCA 3

Reasons for Decision

  1. [1]
    On 8 December 2023, Mr David Foenander (the Appellant) submitted an appeal of the decision of Ms Tanya Kelly, Acting Deputy Director-General, Queensland Health (the Respondent) dated 16 November 2023, to impose the disciplinary action of a reduction in remuneration level from AO7.4 to AO7.1 (the Disciplinary Action Decision).
  2. [2]
    The disciplinary action was taken against Mr Foenander after he was found to have contravened, without reasonable excuse, a direction given to him to comply with the Health Employment Directive No. 12/21 (HED 12/21) to receive the COVID-19 vaccination.

Background

  1. [3]
    Mr Foenander is employed as a Principal Project Officer within the Healthcare Informatics Team, Digital Health Branch.
  2. [4]
    On 11 September 2021, HED 12/21 was issued which required existing employees in the categories set out in cl 7.1 to receive two doses of a COVID-19 vaccine.[1]
  3. [5]
    Mr Foenander was categorised as an employee falling within Group 3 under cl 7.1 of HED 12/21 and was subject to the mandatory vaccination requirements at cl 8.1 of HED 12/21.
  4. [6]
    Relevantly, cl 8.1 of HED 12/21 provides the following:

8.1 Existing employees currently undertaking work or moving not a role undertaking work listed in a cohort of Table 1, must:

a. have received at least the first dose of a COVID-19 vaccine by 30 September 2021; and

b. 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:

a. 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.

b. 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.

…

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. [7]
    On 15 October 2021, Mr Foenander applied for an exemption to the mandatory vaccine requirements identifying a 'genuinely held religious belief'. Mr Foenander did not attach any supporting material to his exemption application. In a separate letter of 15 October 2021, he requested further information and assurance from the Department regarding the efficacy of the vaccine.[2]
  2. [8]
    Mr Foenander's application for an exemption was refused. This was confirmed on internal review.
  3. [9]
    On 4 April 2023, Mr Damian Green, Deputy Director-General, eHealth Queensland, wrote to Mr Foenander inviting him to show cause in relation to the Allegation that he had failed to follow a reasonable and lawful direction to comply with the vaccination requirements set out in HED 12/21.[3]
  4. [10]
    On 2 May 2023, Mr Foenander responded, disputing his categorisation as an employee falling within Group 3 under cl 7.1 of HED 12/21 and reiterated his concerns regarding the safety and efficacy of the vaccine.[4]
  5. [11]
    On 5 July 2023, Mr Dario De Zotti, A/Deputy Director-General, eHealth Queensland, determined Mr Foenander had contravened, without reasonable excuse, a direction given to him as a health service employee by a responsible person. Mr Foenander was invited to show cause within seven days as to why his employment should not be terminated.[5]
  6. [12]
    On 16 November 2023, Ms Kelly informed Mr Foenander of her decision to impose the disciplinary action of a reduction in remuneration level to AO7.1.
  7. [13]
    On 11 December 2023, Mr Foenander submitted an Appeal of the Disciplinary Action Decision.
  8. [14]
    In his Appeal notice, Mr Foenander outlined his reasons for the Appeal being (in summary):
  • That Mr Foenander's failure to become vaccinated did not impede the Department's response to the pandemic as several programs[6] were adopted and upgraded by him to deal with the pandemic.
  • Concerns regarding the safety and efficacy of the vaccine;
  • Mr Foenander holds 'religious beliefs' that would be compromised if he got the vaccine;
  • The Respondent ought to consider his work performance; and
  • Mr Foenander would suffer financial distress.

Jurisdiction

  1. [15]
    Section 131 of the Public Sector Act 2022 (Qld) (the PS Act) identifies the categories of decisions against which an appeal may be made. A "disciplinary decision" is appealable under s 131(1)(c) of the PS Act.
  2. [16]
    Section 134 of the PS Act allows for the appeal to be heard and decided by the Commission.
  3. [17]
    I am satisfied the Decision can be appealed.

Timeframe to appeal

  1. [18]
    Section 564(3) of the Industrial Relations Act 2016 (Qld) (the IR Act) requires that an appeal be lodged within 21 days after the day the decision appealed against is given.
  2. [19]
    The Decision was given to the Appellant on 20 November 2023 and the Form 89 - Appeal notice was filed in the Industrial Registry on 11 December 2023. Therefore, I am satisfied that the appeal was filed by the Appellant within the required timeframe.

Submissions

  1. [20]
    The parties filed written submissions in accordance with the Amended Directions Order issued on 12 January 2024. Pursuant to s 451(1) of the IR Act, this matter has been decided on the papers.
  2. [21]
    I have carefully considered all submissions and materials. I have determined not to approach the writing of this decision by summarising the entirety of those submissions and attachments but will instead refer to the parties' key positions in my consideration of the appeal.

What decisions can the Commission make?

  1. [22]
    In deciding this appeal, s 562C of the IR Act provides that the Commission may:
  • confirm the decision appealed against;
  • set the decision aside and substitute another decision; or
  • set the decision aside and return the matter to the decision-maker with a copy of the decision on appeal and any directions considered appropriate.

Appeal principles

  1. [23]
    Section 562B(3) of the IR Act provides that the purpose of a public service appeal is "to decide whether the decision appealed against was fair and reasonable."[7] This is the key issue for my determination.
  2. [24]
    A public service appeal under the IR Act is not by way of rehearing,[8] but involves a review of the decision arrived at and the decision–making process associated therewith.
  3. [25]
    Findings made by the Respondent, which are reasonably open to it, should not be disturbed on appeal.
  4. [26]
    For the reasons contained herein, I have found that the Disciplinary Action Decision was fair and reasonable.

Relevant Legislative Provisions

  1. [27]
    Section 3 of the PS Act provides:

3 Main purposes of Act

The main purpose of this Act is to provide a framework for a fair and integrated public sector that serves the people of Queensland and the State.

  1. [28]
    Section 91 of the PS Act relevantly provides as follows (emphasis added):

(1) A public sector employee's chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has—

…

(d)contravened, without reasonable excuse, a direction given to the employee as a public sector employee by a responsible person; or

  1. [29]
    Section 92 of the PS Act relevantly provides:

92Meaning of disciplinary action

  1. Disciplinary action is any action relating to employment, including, for example, any of the following actions -
  1. termination of employment;
  2. reduction of classification level and a consequential change of duties;
  3. transfer or redeployment;
  4. forfeiture or deferment of a remuneration increment or increase;
  5. reduction of remuneration level;
  6. imposition of a monetary penalty;
  7. if a penalty is imposed, a direction that the amount of the penalty be deducted from the employee's periodic remuneration payments;
  8. a reprimand.
  1. [30]
    Section 51A of the Hospital and Health Boards Act 2011 (HHB Act) provides for the issuing of health employment directives and is set out in the following terms:

51A Health employment directives

  1. The chief executive may issue health employment directives about the conditions of employment for health service employees.
  1. Without limiting subsection (1), a health employment directive may be about the following—

(a) remuneration for health executives and senior health service employees;

(b) the classification levels at which health executives and senior health service employees are to be employed;

(c) the terms of contracts for health executives and senior health service employees;

(d) the professional development and training of health service employees in accordance with the conditions of their employment.

  1. A health employment directive may apply to any or all of the following—

(a) the department, a Service or all Services;

(b) health service employees, or a stated type of health service employee.

…

  1. [31]
    Section 51(1) of the HHB Act provides that a health employment directive that applies to an employee of the Department is binding on the employee and the Department.

Relevant provisions of the Discipline Directive

  1. [32]
    Directive 05/23: Discipline (the Discipline Directive) relevantly provides (emphasis added):

9.5 Show cause process for proposed disciplinary action

  1. a.
    the chief executive is to provide the employee with written details of the proposed disciplinary action and invite the employee to show cause why the proposed disciplinary action should not be taken (a show cause notice on disciplinary action)
  1. b.
    the chief executive may propose more than one type of disciplinary action, and if relevant, detail any management action to be implemented
  1. c.
    the disciplinary action the chief executive may propose is not limited to the examples of disciplinary action listed in section 92 of the Act
  1. d.
    in proposing appropriate and proportionate disciplinary action, the chief executive should consider:
  1. i.
    the seriousness of the disciplinary finding
  1. ii.
    the employee's classification level and/or expected level of awareness about their performance or conduct obligations
  1. iii.
    whether extenuating or mitigating circumstances applied to the employee's actions
  1. iv.
    the employee's overall work record including previous management interventions and/or disciplinary proceedings
  1. v.
    the employee's explanation (if any)
  1. vi.
    the degree of risk to the health and safety of employees, customers and members of the public
  1. vii.
    the impact on the employee's ability to perform the duties of their position
  1. viii.
    the employee's potential for modified behaviour in the work unit or elsewhere
  1. ix.
    the impact a financial penalty may have on the employee
  1. x.
    the cumulative impact that a reduction in classification and/or pay-point may have on the employee
  1. xi.
    the likely impact the disciplinary action will have on public and customer confidence in the unit/entity and its proportionality to the gravity of the disciplinary finding
  1. e.
    a show cause notice on disciplinary action must only state the employee is liable for termination of employment if the chief executive reasonably believes that the employee might, in the circumstances, have their employment terminated
  1. f.
    the chief executive must provide the employee with a minimum of seven days from the date of receipt of a show cause notice on disciplinary action to consider and respond to the notice, having regard to the volume of material and complexity of the matter. The chief executive may grant, and must consider any request for, an extension of time to respond to a show cause notice on disciplinary action if there are reasonable grounds for extension.
  1. g.
    if the employee does not respond to a show cause notice on disciplinary action or does not respond within the nominated timeframe in clause 9.5(f) and has not been granted an extension of time to respond, the chief executive may make a decision on disciplinary action based on the information available to them.

9.6  Decision on disciplinary action:

  1. a.
    the chief executive must review all relevant material, including any submissions from the employee in response to a show cause notice, and make a final decision on the disciplinary action to be taken
  1. b.
    the chief executive must inform the employee of the decision in writing, including:
  1. i.
    the reasons for the decision, including consideration of any information provided by the employee in response to a show cause notice
  1. ii.
    information that the employee may appeal the decision on disciplinary action (except for a termination decision)
  1. iii.
    for a termination decision, information that the employee may lodge an application for reinstatement under the IR Act
  1. c.
    the chief executive may decide to impose disciplinary action different to the disciplinary action proposed in the show cause notice on disciplinary action, provided that:
  1. i.
    the revised disciplinary action is objectively less onerous than the original action proposed, or
  1. ii.
    the employee is given a further opportunity to comment on the appropriateness of the new proposed action, before a final decision on the disciplinary action is made and communicated to the employee, or
  1. iii.
    the employee has suggested the disciplinary action as an appropriate alternative penalty
  1. d.
    disciplinary action (other than a termination decision) is not to be implemented until the period for an appeal against the decision to discipline the public sector employee has expired, or any appeal lodged is finalised.

…

13.Appeals

13.1 A subject employee has a right of appeal in relation to disciplinary findings or a disciplinary decision (with the exception of a termination decision) as provided for under section 131 of the Act.

Allegation

  1. [33]
    On 4 April 2023, Mr Green wrote to Mr Foenander inviting him to show cause as to why a disciplinary finding should not be made against him in relation to the allegation that:

Allegation One

You have not complied with the requirements of HED 12/21 to receive the prescribed number

of doses of a COVID-19 vaccine and to provide evidence of having received the prescribed

number of doses of a COVID-19 vaccine.

  1. [34]
    In that correspondence, Mr Green outlined that as a Principal Project Officer, Mr Foenander was categorised as a Group 3 employee under cl 7.1 of HED 12/21, which includes all other health service employees who are employed in roles that require attendance at a hospital or other facility where clinical care or support is provided.
  2. [35]
    After considering Mr Foenander's response, on 5 July 2023, Mr De Zotti issued the Disciplinary Finding Decision that Allegation One could be substantiated pursuant to s 91(1)(d) of the PS Act.

Proposed Disciplinary Action

  1. [36]
    Mr Foenander was afforded 14 days to show cause as to why the disciplinary action of 'termination of your employment' should not be taken under s 93 of the PS Act.

Disciplinary Action Decision

  1. [37]
    The Delegate revised the disciplinary penalty and elected to impose the following in the Disciplinary Action Decision:

Accordingly, I have determined to impose the following disciplinary action under section 93 of the Act:

  • Reduction of remuneration level to AO7.1

A record of this action will be retained on a separate confidential disciplinary file and maybe a factor in the consideration of any future disciplinary processes initiated against you. Your personnel file will contain only a notation that a separate disciplinary file exists.

Please be aware that the disciplinary finding/s and the disciplinary action taken in this matter, may be considered by the decision maker in any future disciplinary processes when determining what, if any, disciplinary action should be taken in that case.

Question to be decided

  1. [38]
    The question to be decided is whether the Delegate's Disciplinary Action Decision was fair and reasonable.

Consideration

  1. [39]
    It is not in dispute that at the time the Disciplinary Action Decision was imposed, Mr Foenander had not received a first or second dose of the vaccine. Further, it is not necessary to consider whether the Disciplinary Finding Decision was fair and reasonable.
  2. [40]
    The decision subject of the appeal is the disciplinary penalty decision of a reduction in remuneration level from AO7.4 to AO7.1.
  3. [41]
    Mr Foenander's submissions as to why the Disciplinary Decision is unfair and unreasonable are that he has a "Constitutional defence" that challenges the authority of the Respondent to bring disciplinary action against him:

On and for the record, I am challenging the authority of Queensland Health to bring disciplinary action against me with regards to my employment, including loss of income as a Snr Applications Specialist on grounds that the authority to mandate a medical treatment as a condition of new or continued employment (and remuneration) cannot be conferred on the parliament of Queensland, nor the Commonwealth, nor any executive officer under the Constitution including Queensland Health.[9]

  1. [42]
    Mr Foenander submitted that the Respondent relies "upon legislation [he] allege[s] is unconstitutional" and that he has a defence arising under s 51(xxiiiA) of the Australian Constitution and s 51(ix) of the Australian Constitution.[10] I find Mr Foenander's submissions to be entirely misconceived.
  2. [43]
    Strikingly similar submissions (and at some points identical) were made in the matter of Tilley v State of Queensland (Queensland Health) (Disciplinary Decision),[11] where Industrial Commissioner Dwyer declined to hear Ms Tilley's appeal, outlining the following (citations omitted):

[13]  The submissions as a whole border on nonsensical. They are peppered with references to various authorities of various courts but omit any reference to corresponding ratio decidendi she relies on for her substantive argument (though the contentions accompanying these references are plainly misconceived in any event).

[14]  Relevantly, the submissions filed by Ms Tilley barely expound the grounds of the appeal that she had set out in her Appeal Notice. Indeed, only some of those grounds are (superficially) revisited. Instead, without notice to the Commission or respondent, or leave to amend her appeal grounds, Ms Tilley's submissions are almost entirely devoted to (attempting) to introduce multiple challenges to the lawfulness of the Directive and the validity of certain statutes.

[15]  The foundation of these contentions is centred around s 51 of the Commonwealth of Australia Constitution Act ('the Constitution'). The essence of Ms Tilley's submission is best captured by this extract:

On and for the record, I am challenging the authority of Queensland Health to bring disciplinary action against me with regards to my employment, including loss of income...on grounds that the authority to mandate a medical treatment as a condition of new or continued employment (and remuneration) cannot be conferred on the parliament of Queensland, nor the Commonwealth, nor any executive officer under the Constitution including Queensland Health or any of its delegates.

My defence arises by way of collateral attack on the Hospital and Health Boards Act for invalidity under protections 1) granted by s 51(xxiiiA) of the Constitution and secondly, arising under s 51(ix) of the Constitution as well as under s 92 of the Constitution.

…

…

[22] Ms Tilley seeks a review of a decision which finds her liable for discipline for failing to comply with a lawful and reasonable direction, namely the Directive. Ms Tilley's Appeal Notice sets out the grounds upon which she sought the review. None of those grounds is novel, and similar grounds have failed (multiple times) in other appeals.

[23]  Further, Ms Tilley's arguments invoking s 51 of the Constitution (as best they can be understood) are equally misconceived. Additionally, if Ms Tilley genuinely wants to make a constitutional challenge to the validity of either the Directive or other statutes, it is the High Court of Australia that is vested with original jurisdiction to determine such a claim.

[24] Having regard to Ms Tilley's disordered and misconceived submissions, I am not entirely convinced the arguments she promotes are genuinely held views. On the contrary, I consider they are a simple veneer that has been awkwardly applied in an effort to disguise her conventional but plainly futile grounds of appeal.

[25]  Despite their nonsensical qualities, Ms Tilley's submissions (in places) reveal glimpses of what Ms Tilley's real grievance is. Ms Tilley submits:

I seek remedy of finding the Act invalid (to what extent) and as a consequence, compensation and having my job re-instated and an apology letter to myself and anyone in the State of Queensland, employed by Queensland Health for being civilly conscripted to vaccinate via a practical and legal compulsion…to adhere to a coercive threat using the force of a lawful penalty to disincentivise non-compliance.

[26] At the very heart of this matter is the simple fact that Ms Tilley objects to the direction that she must be vaccinated in order to continue to attend her place of work. It is no more complex than that. Further, the reasons for Ms Tilley's objections to vaccination are equally clear and simple: she objects on grounds of her religious beliefs and further, she does not consider that the covid vaccines are safe or efficient, and therefore not necessary.

[27] Because Ms Tilley so vehemently holds to these views, and because the vaccine mandate plainly generates in her an irrepressible (but misplaced) sense of injustice, she has attempted to contort her personal sense of being wronged into the form of a Constitutional challenge. But despite the rather grandiose concepts that she has ineptly cobbled together in her submissions, the briefest of scrutiny causes that façade to collapse, and revealed in the rubble are the same old tedious arguments about 'civil conscription' and 'coercion'.

  1. [44]
    It has been held that vaccine mandates do not amount to civil conscription.[12] I accept Industrial Commissioner Hartigan's conclusions (as she then was) in Tilley v State of Queensland (Queensland Health):[13]
  1. [35]
    In relation to Mr Tilley's contention with respect to s 51(xxiiiA) of the Commonwealth of Australia Constitution Act ('the Constitution'), regard must be had to the terms of that provisions. Relevantly, s 51(xxiiiA) of the Constitution states:

51.Legislative powers of the Parliament.

The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:—

…

(xxiiiA)The provision of maternity allowances, widows' pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorize any form of civil conscription), benefits to students and family allowances:

…

  1. [36]
    This provision of the Constitution appears to relate to the Commonwealth's power to make laws regarding the provision of, inter alia¸ medical services. The civil conscription limitation appears to relate to those who provide the, inter alia, medical services. In Wong v Commonwealth of Australia and Anor, Selim v Lele, Tan and Rivett constituting the Professional Services Review Committee No 309[14] the High Court, in considering s 51 (xxiiiA) of the Constitution, relevantly held:[15]

The legislative history and the genesis of s 51(xxiiiA) supports a construction of the phrase "(but not so as to authorize any form of civil conscription)" which treats "civil conscription" as involving some form of compulsion or coercion, in a legal or practical sense, to carry out work or provide services; the work or services may be for the Commonwealth itself or a statutory body which is created by the Parliament for purposes of the Commonwealth64; it also may be for the benefit of third parties, if at the direction of the Commonwealth.

  1. [37]
    Accordingly, I do not consider that s 51(xxiiiA) of the Constitution is relevant to the circumstances of this matter as it relates to the provision of, inter alia, medical services, rather than the receipt of such services by an individual. Further, I do not consider that s 51(xxiiiA) of the Constitution is relevant to this matter as it relates to the Commonwealth's power to make such laws and does not cover the responsibilities of the state.
  1. [38]
    In this matter, the relevant legislative scheme empowers the Department to issue health employment directives about the conditions of employment for health service employees. Directive 12/21 makes it a condition of Mr Tilley's employment to be vaccinated unless an exemption is granted. Accordingly, I consider Directive 12/21 to be lawful.[16]
  1. [45]
    Similarly, Mr Foenander's 'defence' arising from s 51(ix) of the Australian Constitution is misconceived. Section 51(ix) of the Australian Constitution relevantly provides:

51.  Legislative powers of the Parliament.

The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:—

…

(ix.)   Quarantine:

  1. [46]
    Mr Foenander submitted that quarantine powers apply only to those "labouring under an infectious disease and cannot be arbitrarily applied to the population as a whole". He argued that:
  1. The Hospital and Health Boards Act 2011 (QLD) operates in such a way that it becomes a barrier to commerce and travel and is a regulation of commerce forbidden under the Constitution. Such a statute being more than quarantine regulation transcends the legitimate powers of a state.
  2. The State and Commonwealth can only regulate quarantine and they can only regulate intrastate trade commerce and intercourse and nothing more. However, the power of regulation is just that and cannot extent to prohibiting or restricting trade commerce and intercourse within the State.
  3. The relationship between myself and my employer is governed by a federal Act the Fair Work Act 2009. There are no provisions in this Act, and nor can there be, that provide an employer with authority to require as a condition of entry to the workplace that I be vaccinated.
  4. The Court in Gerner v Victoria, citing McCarter v Brodie, has erroneously defined quarantine as being in its essence prohibiting or restricting a persons movement. This assertion can be easily invalidated with the following examples: If we apply the Courts interpretation of quarantine it would capture criminals in jail, and one could say according to this definition, because the State has prohibited or restricted their movement, they must therefore be in jail because of the exercise of the States quarantine powers as they answer that description.
  5. Such a notion is of course absurd, their movement has been prohibited or restricted because they have committed crimes and not because of quarantine powers exercised against them.
  6. Another simple example includes a natural disaster, for example a bushfire or flood. The State can prohibit or restrict a persons movement into such an area and it too would satisfy the Courts definition of quarantine, but clearly the reason why people are prohibited or restricted from going into bush fire or flood areas has nothing to do with quarantine powers.
  7. The Hospital and Health Boards Act 2011 (QLD) is inconsistent with the Fair Work Act 2009 (Cth) and is therefore repugnant to the Constitution on the grounds of s 109 of the Constitution, inconsistency of laws.[17]
  1. [47]
    Mr Foenander's submissions are nonsensical. There is no connection that can be drawn between Mr Foenander's submissions and the question to be decided in this appeal.
  2. [48]
    With respect to the legality of HED 12/21, HED 12/21 was issued by the Director-General under s 51A of the Hospital and Health Boards Act 2011 (Qld) as a condition of employment for health service employees.[18] Section 51A(1) and (3) empowers the chief executive to "issue health employment directives about the conditions of employment for health service employees". As a result of the implementation of HED 12/21, mandatory vaccination requirements became a condition of the Mr Foenander's employment. Failure to comply with that condition has resulted in consequences.
  3. [49]
    The Respondent is authorised to take disciplinary action against an employee under the provisions of the PS Act, following the chief executive being reasonably satisfied the employee contravened, without reasonable excuse, a direction given to the employee as a public sector employee by a responsible person; that is what has occurred in this case.[19]
  4. [50]
    Section 93(1) of the PS Act provides that (emphasis added):

In disciplining a public service employee, the employee's chief executive may take the disciplinary action, or order the disciplinary action be taken, against the employee that the chief executive considers reasonable in the circumstances.

  1. [51]
    I will now proceed to consider whether the disciplinary action was "reasonable in the circumstances". 
  2. [52]
    In his Industrial Court of Queensland decision in State of Queensland (Queensland Health) v Hume,[20] Deputy President Merrell held that the words 'fair and reasonable' are to be given their ordinary meaning, in the determination of public sector appeals.
  3. [53]
    Clause 9.5(d) of the Discipline Directive contains the factors to be considered in "proposing appropriate and proportionate disciplinary action."  Those factors are as follows:
  1. the seriousness of the disciplinary finding
  1. the employee's classification level and/or expected level of awareness about their performance or conduct obligations
  1. whether extenuating or mitigating circumstances applied to the employee's actions
  1. the employee's overall work record including previous management interventions and/or disciplinary proceedings
  1. the employee's explanation (if any)
  1. the degree of risk to the health and safety of employees, customers and members of the public
  1. the impact on the employee's ability to perform the duties of their position
  1. the employee's potential for modified behaviour in the work unit or elsewhere
  1. the impact a financial penalty may have on the employee
  1. the cumulative impact that a reduction in classification and/or pay-point may have on the employee
  1. the likely impact the disciplinary action will have on public and customer confidence in the unit/entity and its proportionality to the gravity of the disciplinary finding.
  1. [54]
    In circumstances where there is no dispute as to the lawful and reasonable nature of the direction, it was inevitable that Mr Foenander would be sanctioned.[21]
  2. [55]
    The Appeal notice filed by Mr Foenander and the material considered by the decision-maker clearly indicates that the Appellant holds reservations about being administered the COVID-19 vaccination and was therefore hesitant to comply with HED 12/21. While Mr Foenander expressed concerns regarding the safety of the vaccine, vaccine hesitancy is not an exceptional circumstance.[22]
  3. [56]
    Mr Foenander presented his own research to the Respondent throughout this process. The Respondent noted that COVID-19 vaccinations have been approved for use through the Therapeutic Goods Administration approval process and the Australian Technical Advisory Group on Immunisation.[23] The TGA's approval of relevant vaccines is a matter of public record and is evidence of their safety and efficacy.[24] I accept that adhering to such advice is reasonable and appropriate in comparison to the research submitted by Mr Foenander.
  4. [57]
    Mr Foenander asserted he holds 'religious beliefs' that would be compromised by getting the vaccine. There is no evidence before me regarding what Mr Foenander's religious beliefs are and how they would be compromised upon receiving the vaccine. Through the exemption application process, Mr Foenander was afforded the opportunity to present evidence to this effect for the Respondent's consideration. Ultimately, Mr Foenander's application was denied which was upheld on internal review. In the absence of an approved exemption, it cannot be disputed that Mr Foenander was non-compliant with the requirements of HED 12/21 or the Human Resources Policy B70 – Employee COVID-19 vaccination requirements (B70) as he had not received the prescribed number of doses of a COVID-19 vaccination.
  5. [58]
    Mr Foenander disputed that his refusal to comply with HED 12/21 impeded the Respondent's response to the pandemic, as several of the programs he implemented dealt with the changing nature of the pandemic. I do not consider that as Mr Foenander conducted the duties as required by his role at the time, he should be given special consideration in relation to compliance with HED 12/21. Mr Foenander's duties with respect to clinical ICT systems require him to attend at a hospital or other facility where clinical care or support is provided. His non-compliance would have undoubtedly placed a burden on the Respondent to effectively plan for and respond to the changing nature of the pandemic as he was unable to attend such facilities throughout the relevant period.
  6. [59]
    In considering the disciplinary penalty to be imposed on Mr Foenander, the Delegate noted that HED 12/21 applied to Mr Foenander for over two years, from September 2021 to 25 September 2023, which is a significant amount of time. The fact that the HED 12/21 and B70 have now been repealed does not alter the seriousness of Mr Foenander's conduct during that time. The Delegate considered that HED 12/21 applied to Mr Foenander as:

You were required to comply with the Directive in your position as a Principal Project Officer as:

oClause 2 of the Directive confirms the purpose of the Directive is to 'outline COVID-19 vaccination requirements for existing employees and prospective employees engaged to work in the identified high-risk groups' designated in the Directive.

o Consistent with this, clause 4 of the Directive provides that it 'applies to all health service employees engaged…under the Hospital and Health Boards Act 2011 in Hospital and Health Service and Queensland Health (the department)'. As you are an existing employee engaged in the department, the Directive applied to you.

o Clause 7 of the Directive sets out the vaccination requirements for all existing employees who are employed to work in the cohorts listed in Table 1. Relevantly, Group 3 includes 'All other health service employees who are employed in roles that require attendance at a hospital or other facility where clinical care or support is provided'.

o In your role of Principal Project Officer, you are categorised as a Group 3 under clause 7.1 of HED 12/21. As a result, you are 'required to be vaccinated as a condition of employment' in accordance with Clause 7.

o Clause 8 of the Directive sets out the timeframes for complying with the Directive for existing employees. These timeframes apply to you as an existing employee who is currently employed to work as a Principal Project Officer (position number 32007011) within the Healthcare Informatics Team, Digital Health Branch (DHB) and are therefore considered to be 'currently undertaking work' in one of the relevant cohorts listed in Table 1.

  1. [60]
    Mr Foenander submitted in his Appeal notice that "the departments objectives to take and record disciplinary action against me for my non-compliance with HED 12/21 and have this permanently attached to my record would be facilitated by a reprimand". In this regard, Mr Foenander provided that he is a single employee with a mortgage and the reduction would place him into financial distress.
  2. [61]
    In Bakhash v State of Queensland (Department of Education),[25] Industrial Commissioner Dwyer expressed that the failure to comply with a lawful and reasonable direction is a serious act of insubordination and in the absence of any compelling mitigating factors, would justify termination of employment.
  3. [62]
    With respect to the degree of demotion to be imposed on Mr Foenander, the Delegate has stepped back from the proposal of 'termination'. The Delegate elected to impose a lighter sanction and afforded Mr Foenander an opportunity to continue his employment. I consider the Delegate adopted an extremely fair-minded approach with respect to that revised penalty.
  4. [63]
    In his show cause response, Mr Foenander put to the Respondent that his work performance should be considered favourably in the imposition of a disciplinary penalty, due to several successful projects he has implemented, and positive feedback received from his managers. Mr Foenander further submitted in his appeal notice that the Disciplinary Action Decision of a reduction in remuneration is unwarranted due to his work performance. It is apparent to me that the Respondent has carefully considered Mr Foenander's work performance favourably in revising the proposed penalty. A reduction in remuneration is significantly less of a penalty than termination of employment. Mr Foenander contravened, without reasonable excuse, a direction given to him by his employer. That contravention comes with consequences which Mr Foenander was made aware of repeatedly.
  5. [64]
    I consider that Mr Foenander was afforded procedural fairness throughout the disciplinary process. He was given an opportunity to respond to the Allegation and make submissions in respect of the proposed penalty. Mr Foenander was also repeatedly informed that a failure to comply with HED 12/21 may result in disciplinary action being taken against him, which is what has ultimately occurred.

Conclusion

  1. [65]
    For the reasons outlined above, I have determined that the Delegate fairly and reasonably considered the circumstances surrounding Mr Foenander's non-compliance with HED 12/21, electing to impose a penalty of a reduction in remuneration. The Respondent's preparedness to implement a lighter sanction upon Mr Foenander has afforded him the opportunity to continue his employment with the Respondent. 
  2. [66]
    In consideration of all the circumstances of this matter, I believe the Delegate's determination of the final disciplinary action was appropriate and proportionate.  The decision was fair and reasonable.

Order

  1. [67]
    I order accordingly.
    1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appealed against is confirmed.

Footnotes

[1] Section 51A of the Hospital and Health Boards Act 2011 (HHB Act) authorises the chief executive to issue

health employment directives regarding the conditions of employment for health service employees. HED 12/21 was revoked from 25 September 2023.

[2] Respondent's submissions filed 19 January 2024, [7].

[3] Ibid [9].

[4] Ibid [10].

[5] Ibid [11].

[6] Including the Inter-Hospital Transfer Application and the Intensive Care Clinic Information System.

[7] Industrial Relations Act 2016 (Qld) s 562B(3).

[8] Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5 as to the former, equivalent provisions in s 201 of the Public Service Act 2008 (Qld).

[9] Appellant's submissions filed 9 January 2024, 2.

[10] Ibid.

[11] [2024] QIRC 252.

[12] See Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320.

[13] [2022] QIRC 2.

[14] [2009] HCA 3.

[15] Ibid [60].

[16] Tilley v State of Queensland (Queensland Health) [2022] QIRC 2, 12-13.

[17] Appellant's submissions filed 9 January 2024, 5.

[18] Health Employment Directive No. 12/21 cl 14.

[19] Public Sector Act 2022 (Qld) s 91(1)(d).

[20] [2024] ICQ 3.

[21] Bakhash v State of Queensland (Department of Education) [2022] QIRC 362 [27].

[22] Tilley v State of Queensland (Queensland Health) [2022] QIRC 002 [39].

[23] Respondent's submissions filed 19 January 2024, [16]a.

[24] Stevens v Epworth Foundation [2022] FWC 593 [19].

[25] [2022] QIRC 362 [27].

Close

Editorial Notes

  • Published Case Name:

    Foenander v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Foenander v State of Queensland (Queensland Health)

  • MNC:

    [2024] QIRC 253

  • Court:

    QIRC

  • Judge(s):

    McLennan IC

  • Date:

    30 Oct 2024

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
Bakhash v State of Queensland (Department of Education) [2022] QIRC 362
3 citations
Jump To
Cite 1 - [2022] QIRC 362
Cite 2 - [2022] QIRC 362
Cite 3 - [2022] QIRC 362
Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320
2 citations
Jump To
Cite 1 - [2021] NSWSC 1320
Cite 2 - [2021] NSWSC 1320
State of Queensland (Queensland Health) v Hume (No. 3) [2024] ICQ 3
2 citations
Jump To
Cite 1 - [2024] ICQ 3
Cite 2 - [2024] ICQ 3
Stevens v Epworth Foundation [2022] FWC 593
2 citations
Jump To
Cite 1 - [2022] FWC 593
Cite 2 - [2022] FWC 593
Tilley v State of Queensland (Queensland Health) [2022] QIRC 2
4 citations
Jump To
Cite 1 - [2022] QIRC 2
Cite 2 - [2022] QIRC 2
Cite 3 - [2022] QIRC 2
Cite 4 - [2022] QIRC 2
Tilley v State of Queensland (Queensland Health) (Disciplinary Decision) [2024] QIRC 252
2 citations
Jump To
Cite 1 - [2024] QIRC 252
Cite 2 - [2024] QIRC 252
Wong v Commonwealth [2009] HCA 3
2 citations
Jump To
Cite 1 - [2009] HCA 3
Cite 2 - [2009] HCA 3

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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