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Sagur v State of Queensland (Queensland Health)[2024] QIRC 32

Sagur v State of Queensland (Queensland Health)[2024] QIRC 32

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Sagur v State of Queensland (Queensland Health) [2024] QIRC 032

PARTIES:

Sagur, Ruth

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

PSA/2022/309

PROCEEDING:

Public Sector Appeal – Fair treatment appeal

DELIVERED ON:

13 February 2024

MEMBER:

Pidgeon IC

HEARD AT:

On the papers

ORDER:

Pursuant to section 562A(3)(b)(iii)  of the Industrial Relations Act 2016 (Qld), the appeal is dismissed.

CATCHWORDS:

PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SECTOR APPEAL – where the appellant is employed by the respondent as a Registered Nurse – where Health Employment Directive No 12/21 Employee COVID-19 vaccination requirements required the appellant to receive the first dose of a COVID-19 vaccine by 30 September 2021 and the second dose of a COVID-19 vaccine by 31 October 2021 – where the appellant did not comply with the direction – where the appellant applied for an exemption on the basis of genuinely held religious beliefs – where the appellant’s request for an exemption was denied – where the appellant requested an internal review of the decision to deny her exemption application – where the internal review decision confirmed the decision to refuse the appellant an exemption – where the appellant seeks that the appeal be dismissed for want of jurisdiction – where the respondent submits that the matters raised have been heard and determined – where the respondent seeks that the appeal be dismissed as there is no utility in hearing the appeal – appeal dismissed pursuant to the Industrial Relations Act 2016 (Qld) s 562A(3)(b)(iii)

LEGISLATION:

Health Employment Directive No 12/21 Employee COVID-19 vaccination requirements

Industrial Relations Act 2016 (Qld) ss 562A, 562C

Public Sector Act 2022 (Qld) ss 289, 324

Public Service Act 2008 (Qld) ss 194, 197 (repealed)

CASES:

Mocnik & Ors v State of Queensland (Queensland Health) [2023] QIRC 058

Tilley v State of Queensland (Queensland Health) [2023] QIRC 262

Reasons for Decision

Introduction

  1. [1]
    Ms Ruth Sagur (‘the Appellant’) is employed by the State of Queensland (Queensland Health) (‘the Respondent’) as a Registered Nurse within the Division of Critical Care at the Queensland Childrens Hospital.
  1. [2]
    Subject of the appeal is a decision letter dated 11 February 2022 from Ms Naomi Hebson, Executive Director, People and Governance, Children’s Health Queensland Hospital and Health Service (‘CQHHS’) which upholds a decision dated 8 December 2021 made by Mr Dominic Tait, Executive Director, Clinical Services, to deny Ms Sagur’s application for an exemption from mandatory COVID-19 vaccination.
  1. [3]
    For context, as a Registered Nurse working in a hospital, Ms Sagur was subject to the mandatory vaccination requirements of Health Employment Directive No 12/21 Employee COVID-19 vaccination requirements (‘HED 12/21’). Ms Sagur was required by her employer to provide evidence of having received two doses of a COVID-19 vaccine by 31 October 2021.

Exemption application

  1. [4]
    Ms Sagur applied for an exemption from HED 12/21 on 22 September 2021 on the grounds of a ‘genuinely held religious belief’. In this application, Ms Sagur says she is a member of Heritage Baptist Church and her religious beliefs as a Christian prevent her from receiving ‘current COVID-19 vaccines which are produced with aborted fetal cell lines’. Ms Sagur refers to passages of the Bible and says, ‘I believe receiving the vaccines would be participating in the sin of abortion, thereby resulting in my spiritual death’. Ms Sagur also says she condemns ‘the harvesting of biological material from a subject without their total informed consent and the usage of any vaccines manufactured utilizing [sic] stolen organs’. On the basis of her religious beliefs, Ms Sagur concludes her letter by requesting an exemption from HED 12/21.
  1. [5]
    In support of her application, Ms Sagur provided documentation from Pastor Mark Bartelman of Heritage Baptist Church dated 24 September 2021. Pastor Bartelman writes that Ms Sagur is a member of Heritage Baptist Church Wangaratta’s online congregation which supports Ms Sagur’s deeply held biblical convictions regarding vaccination.
  1. [6]
    Ms Sagur was advised that her exemption application had been denied in correspondence from Mr Tait on 8 December 2021. In consideration of Ms Sagur’s application, Mr Tait explains that Ms Sagur’s religious beliefs regarding COVID-19 vaccinations had to be balanced against the purpose of HED 12/21. Ultimately, Mr Tait determined to refuse the exemption to ensure the readiness of the health system in responding to the COVID-19 pandemic, including the need to protect the lives of employees, patients and members of the community. Mr Tait notes that high vaccination coverage among health care workers is a key determinant of health outcomes for Queenslanders, and vaccination within the workplace would reduce the likelihood of workplace outbreaks and staff shortages.

Internal review decision

  1. [7]
    Ms Sagur subsequently requested an internal review of Mr Tait’s decision through correspondence from Industrial Relations Claims on 17 December 2021 to Children’s Health Queensland, which culminated in the decision of Ms Hebson dated 11 February 2022 to confirm the denial of Ms Sagur’s exemption application.
  1. [8]
    In the decision letter, Ms Hebson begins by confirming she has the appropriate delegations to undertake the internal review. Ms Hebson also outlines the steps she has taken to review the decision made by Mr Tait and explains that it is her role to determine whether the decision made was fair and reasonable in the circumstances.
  1. [9]
    Ms Hebson writes that the requirement for Queensland Health employees working in facilities where care is provided to be vaccinated against COVID-19 stems from a directive from the Director-General on the advice of the Chief Health Officer.
  1. [10]
    Ms Hebson says she understands that Ms Sagur had applied for an exemption from mandatory vaccination on religious grounds. That application was considered by Queensland Advisory Panel, Department of Health (‘DoH’) upon referral on 22 October 2021.
  1. [11]
    On 29 November 2021, the DoH recommended that Mr Tait decline Ms Sagur’s exemption application in consideration of Ms Sagur’s religious beliefs and their connection to the COVID-19 vaccination requirements balanced against the purpose of the direction.
  1. [12]
    Mr Tait considered Ms Sagur’s application and the DoH’s recommendation. Mr Tait determined to refuse the exemption, a decision he found to be compatible with Ms Sagur’s human rights.
  1. [13]
    Ms Hebson explains that she has considered Ms Sagur’s request for an internal review of Mr Tait’s decision with the intention of HED 12/21 in mind, specifically the requirement to ensure the readiness of the health system in responding to the COVID-19 pandemic, to protect the lives of employees, patients and members of the community. In review of the relevant material, Ms Hebson determined that Mr Tait had undertaken appropriate steps and considerations in relation to Ms Sagur’s application and arrived at the correct decision to refuse the exemption. Therefore, Ms Hebson confirmed Mr Tait’s decision.
  1. [14]
    Ms Hebson says that Mr Tait’s decision was justified as the purpose of the mandatory vaccination requirement includes protecting staff and patients from infection with COVID-19 in the context of a global pandemic. Ms Hebson notes that there is a need to maintain a proper and efficient health system in this context.
  1. [15]
    Further, Ms Hebson says she is satisfied that Mr Tait had considered whether less restrictive, yet effective, alternatives existed to meet the purpose of HED 12/21. Ms Hebson affirms Mr Tait’s decision that no such alternatives were identified.
  1. [16]
    In addition, Ms Hebson notes that while Mr Tait’s decision engages or limits a number of Ms Sagur’s human rights, including her right to equality and non-discrimination and her right not to receive medical treatment without consent, Ms Hebson says the purpose of HED 12/21 justifies these limits.
  2. [17]
    Importantly, Ms Hebson says that ‘The decision does not itself compel a person to be vaccinated, but it does impose consequences upon people who are not vaccinated where there is not good reason’. Ms Hebson says this makes Queensland Health’s position justifiable.
  1. [18]
    Ms Hebson concludes, ‘In my assessment, this decision to decline your exemption application on the basis of religious grounds is fair and reasonable. In this instance, the impact on your human rights is outweighed by the need to protect life and ensure the readiness of the health system’.
  1. [19]
    Ms Hebson advises Ms Sagur that further correspondence will be sent regarding non-compliance with the vaccination policy. Ms Hebson reminds Ms Sagur that she is bound by the Code of Conduct for the Queensland Public Service and failure to follow lawful directions may result in disciplinary action.
  1. [20]
    Finally, Ms Hebson concludes the decision letter by advising Ms Sagur of her appeal rights, reiterating the importance of confidentiality, pointing Ms Sagur to the employee assistance program, and providing a contact for further questions.

Ms Sagur’s reasons for appeal

  1. [21]
    Ms Sagur appealed the internal review decision on 23 February 2022.
  1. [22]
    Ms Sagur’s reasons for appeal can be summarised as follows:
  • The Respondent did not consult with Ms Sagur or her union, industrial association or representatives.
  • Ms Sagur sought to be heard during the decision-making process but was not;
  • As a result of the above, Directive 11/20 regarding individual employee grievances has not been discharged;
  • The decision-makers may have held an actual or inherent conflict of interest, noting they were ‘unknown people in the review committee’ who may have held senior roles with a ‘duty to their employer as a [Hospital and Health Service]’;
  • The Respondent is a ‘Person Conducting a Business or Undertaking’ and Ms Sagur’s Hospital and Health Service (‘HHS’) is the ‘host’ for the purpose of the Work Health and Safety Act 2011 (Qld) (‘the WHS Act’). Ms Sagur says the Respondent is responsible for consultation, cooperation and coordination to ensure legal compliance with the WHS Act ‘and other legislation’ as it applies to ‘this Service Agreement’. The Appellant says, ‘This includes, but is not limited to (a) codes of practice, yet the HHS delegated this back to the Department of Health and the Appellant put both the HHS and their employer on notice of this conflict’.
  1. [23]
    Ms Sagur’s appeal was awaiting allocation to a member for hearing when she contacted the Registry on 10 December 2023 stating that her employer was proceeding with a decision for termination of employment without her appeal being heard. 

Ms Sagur’s request that her appeal be dismissed

  1. [24]
    On Wednesday 13 December 2023, I held a mention of the matter. Prior to the mention, Ms Sagur filed  a document in the Commission.  The document was headed: ‘I propose that my appeal be dismissed for want of jurisdiction’.
  1. [25]
    The document went on to state:

I appealed against the decision of Queensland Health to terminate my employment on the grounds that I refused vaccination (HED 12/21). I have been directed to the QIRC for remedy. The grounds that I rely on below are Constitutional in nature, and the QIRC has no jurisdiction to adjudicate matters that arise under ss 75 and 76 of the Constitution, pursuant to the Boilermakers doctrine, and the High Court of Australia cases of Kirk and Corbett.

Any person that had employment with the executive branch of the Queensland government including Queensland Health terminated or stood down pursuant to HED 12/21 were to seek remedy via the QIRC as the appropriate repository of power, seeking reinstatement, renumeration [sic] or continued employment. I now seek the QIRC to make orders that the QIRC dismisses my matter for want of jurisdiction pursuant to grounds outside of its purview, that being the protections of the Constitution. I will not withdraw my matter as it is a matter for the QIRC to determine its own jurisdiction in the very first instance.

  1. [26]
    On Monday 18 December 2023, Ms Sagur’s current representative, whom is no longer Industrial Relations Claims but an agent named Mr Scott Ferguson, wrote to the Commission on behalf of Ms Sagur proposing I make the following orders pursuant to s 562A(3)(b)(iii) of the Industrial Relations Act 2016 (Qld) (‘the IR Act’):
  1. That the Commission decide not to hear my matter, my appeal, and dismiss the matter for want of jurisdiction.

The compelling reason being that I have submitted Constitutional arguments and the QIRC pursuant to the Boilermakers doctrine, supported by High Court cases such as Burns v Corbett and Kirk v Industrial Relations Commission, has no jurisdiction to hear such matters given that only courts for the purposes of Chapter III of the Constitution can be invested with federal jurisdiction, the QIRC not being of such a description.

Any decision of the QIRC is reviewable for jurisdictional error in the Supreme Court of QLD.

  1. [27]
    Ms Sagur also filed submissions on 15 January 2024.  All of the submissions focus on why her matter should be dismissed.
  2. [28]
    Ms Sagur’s submissions begin with the following proposition: ‘I propose that my appeal be dismissed for want of jurisdiction’. The Appellant says that she has ‘been directed to the QIRC for remedy’, her submissions are ‘Constitutional in nature’ and ‘the QIRC has no jurisdiction to adjudicate matters that arise under ss 75 and 76 of the Constitution. However, Ms Sagur says, ‘I will not withdraw my matter as it is a matter for the QIRC to determine its own jurisdiction in the very first instance’.
  1. [29]
    Ms Sagur argues that the legislation relied upon by Queensland Health is unconstitutional and she challenges the authority of Queensland Health to impose HED 12/21, namely under ss 51 and 76 of the Constitution. 
  1. [30]
    I have considered those submissions and I am satisfied that the Queensland Industrial Relations Commission (‘QIRC’) does have jurisdiction to consider an appeal against a fair treatment decision pursuant to s 194(eb) of the now superseded Public Service Act 2008 (Qld) by way of the operation of s 324 of the Public Sector Act 2022 (Qld) (‘the PS Act’).
  1. [31]
    Ms Sagur lodged an appeal notice on 23 February 2022 and in doing so, appears to have identified the QIRC as the correct place to appeal the internal review decision upholding a decision to refuse her request for an exemption from HED 12/21.
  1. [32]
    The internal review decision informed Ms Sagur that if she was not satisfied with the decision, she may lodge a public service appeal. 
  1. [33]
    Relevantly, at the time Ms Sagur received the internal review decision and decided to appeal that decision, Chapter 7 Part 1 of the Public Service Act 2008 (Qld) applied. Division 2 of Chapter 7 included s 197 which relevantly states: ‘An appeal under this part is to be heard and decided under the Industrial Relations Act 2016, chapter 11 by the IRC’.
  1. [34]
    The correct place for an appellant to lodge an appeal against an internal review decision regarding an application for an exemption from complying with HED 12/21 is the QIRC.
  1. [35]
    If Ms Sagur wishes to raise constitutional arguments or question the validity of HED 12/21, the public service appeal filed on 23 February 2022 is not the correct avenue.
  1. [36]
    I therefore decline to dismiss the matter for want of jurisdiction. I have, however, decided to dismiss the appeal.

Respondent’s submissions – the appeal should be dismissed

  1. [37]
    On 18 December 2023, the Respondent filed submissions inviting me to dismiss the appeal pursuant to section 562A of the IR Act.
  2. [38]
    The Respondent submits that the Commission should dismiss Ms Sagur’s appeal pursuant to s 562A(3)(b) of the IR Act. This section provides that the Commission may decide it will not hear a public sector appeal against a decision if the Commission reasonably believes the appeal is either frivolous or vexatious, is misconceived or lacks substance, or should not be heard for another compelling reason.
  1. [39]
    The Respondent elaborates that the Commission’s role in a public sector appeal is to review the decision made and determine whether the decision appealed against was fair and reasonable. Consideration is given to the information before the decision-maker at the time the decision was made.
  1. [40]
    Turning to the matters raised by Ms Sagur in her appeal notice, the Respondent says these matters have been extensively considered and determined in matters before the Commission including Mocnik & Ors v State of Queensland (Queensland Health) (‘Mocnik’).[1] The Respondent submits that none of the matters raised by Ms Sagur have been found in favour of employees or former employees.
  1. [41]
    The Respondent also argues that the Commission has consistently upheld decisions to refuse applications for exemptions on the basis of one’s religious beliefs on the basis that those decisions are fair and reasonable.
  1. [42]
    In light of this, the Respondent submits that the outcome of Ms Sagur’s appeal will inevitably follow the many previous decisions issued by the Commission and so, the Commission should exercise its discretion under s 562A(3)(b) of the IR Act to not hear the appeal. The Respondent says it would not be in the public interest for the Commission to hear Ms Sagur’s appeal as the matters raised in her appeal notice have been previously heard and determined by the Commission or are otherwise misconceived or lacking in substance.
  1. [43]
    Moreover, the Respondent takes a view that ‘Ms Sagur has not made a single argument in support of her Appeal’. Therefore, the Respondent points to Tilley v State of Queensland (Queensland Health) (‘Tilley’),[2] where the Commission held:

[33] The Commission's resources must be reserved for matters of genuine controversy. They ought not to be made available to unreasonable individuals who, despite overwhelming legal precedent and accepted mainstream medical and scientific opinions, insist on arguing (and re-arguing) the same tedious points in a vain attempt to have their baseless views affirmed, or to delay the inevitable sanctions awaiting them for their non-compliance with a lawful direction.

  1. [44]
    Finally, the Respondent notes that HED 12/21 was revoked effective from 25 September 2023, which the Respondent says bolsters its argument that there is no utility in the Commission hearing Ms Sagur’s appeal.

Legislative framework

  1. [45]
    Section 562A(3)(b)(iii) of the IR Act relevantly provides:

562A Commission may decide not to hear particular public service appeals

…

  1.  The commission may decide it will not hear a public service appeal against a decision if—

…

  1.  the commission reasonably believes, after asking the appellant to establish by oral or written submissions that the appellant has an arguable case for the appeal, that the appeal—

…

  1.  should not be heard for another compelling reason.
  1. [46]
    The Appellant filed her appeal before the commencement of the new PS Act on 1 March 2023. Section 289 of the PS Act repeals the previous Public Service Act 2008 (Qld) which was in effect at the time of the internal review decision and when Ms Sagur filed her appeal.
  1. [47]
    Section 324 of the PS Act relevantly provides:
  1.  This section applies if—

(a)   before the commencement, a person appealed against a decision under the repealed Act, section 194; and

(b)  immediately before the commencement, the appeal had not been decided.

  1.  From the commencement, the appeal must be heard and decided under chapter 3, part 10.

Consideration

  1. [48]
    I accept the Respondent’s submissions that there is no utility in hearing Ms Sagur’s appeal.  The reasons for appeal identified by Ms Sagur in her initial appeal notice have now been considered by this Commission on many occasions, including Mocnik. There are no decisions of the Commission where the matters raised in Ms Sagur’s appeal have led to success for the appellant.
  1. [49]
    As stated in Tilley, the Commission’s resources must be reserved for matters of genuine controversy.  Ms Sagur’s appeal notice evinces no new or unique arguments which give any prospect of success in appealing the internal review decision to decline her application for exemption.
  1. [50]
    In any case, Ms Sagur is not arguing that her appeal should be heard. Ms Sagur has asked that her appeal be dismissed.
  1. [51]
    This is a matter where all parties seek that the appeal be dismissed. For the reasons above, I decline to dismiss the matter on the grounds set forward by Ms Sagur that the Commission has no jurisdiction to hear the appeal. Rather, the matter is dismissed on the grounds contended by the Respondent that there is no utility in hearing the appeal.

Order

  1. [52]
    I make the following order:
  1. Pursuant to section 562A(3)(b)(iii)  of the Industrial Relations Act 2016 (Qld), the appeal is dismissed.

Footnotes

[1] [2023] QIRC 058 (‘Mocnik’).

[2] [2023] QIRC 262 (‘Tilley’).

Close

Editorial Notes

  • Published Case Name:

    Sagur v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Sagur v State of Queensland (Queensland Health)

  • MNC:

    [2024] QIRC 32

  • Court:

    QIRC

  • Judge(s):

    Pidgeon IC

  • Date:

    13 Feb 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
Mocnik v State of Queensland (Queensland Health) [2023] QIRC 58
2 citations
Jump To
Cite 1 - [2023] QIRC 58
Cite 2 - [2023] QIRC 58
Tilley v State of Queensland (Queensland Health) [2023] QIRC 262
2 citations
Jump To
Cite 1 - [2023] QIRC 262
Cite 2 - [2023] QIRC 262

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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