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Want v State of Queensland (Queensland Health)[2025] QIRC 60

Want v State of Queensland (Queensland Health)[2025] QIRC 60

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Want v State of Queensland (Queensland Health) [2025] QIRC 060

PARTIES:

Want, Jennifer

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

PSA/2022/209

PROCEEDING:

Public Sector Appeal – Appeal against a fair treatment decision

CASE NO:

PSA/2022/468

PROCEEDING:

Public Sector Appeal – Appeal against a disciplinary decision

DELIVERED ON:

26 February 2025

MEMBER:

Gazenbeek IC

HEARD AT:

On the papers

ORDER:

The Commission declines to hear the appeals in PSA/2022/209 and PSA/2022/468, pursuant to section 562A(3)(b)(iii) of the Industrial Relations Act 2016 (Qld).

CATCHWORDS:

PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SECTOR APPEAL – consideration under s 562A of the Industrial Relations Act 2016 (Qld) whether to decline to hear appeals – where the appellant was employed by the respondent as a midwife – where the appellant failed to comply with the vaccination requirements contained in Health Employment Directive No. 12/21 – Employee COVID-19 vaccination requirements – where the appellant was the subject of an exemption decision denying her application for an exemption to the Directive’s mandatory vaccination requirements – where appellant was subsequently the subject of a disciplinary findings decision where allegation was substantiated and where appellant was suspended without renumeration – where the appellant’s employment was terminated after the lodging of the appeals –  whether the Commission should continue to hear the appeals – compelling reason not to continue appeals – decisions on appeals will have no practical effect on appellant’s employment – appeals dismissed

LEGISLATION AND INSTRUMENTS:

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

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

Public Sector Act 2022 (Qld) ss 129, 131, 132, 324

Public Service Act 2008 (Qld) ss 187(1)(d), 197 (repealed)

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

CASES:

Keating v State of Queensland (Queensland Health) [2024] QIRC 122

Venables v State of Queensland (Queensland Health) [2022] QIRC 137

Reasons for Decision

  1. [1]
    Ms Jennifer Want (‘the Appellant’) was employed by the State of Queensland, through Queensland Health (‘the Department’), as a Midwife in Mareeba Hospital’s Maternity Unit. 
  2. [2]
    On 11 September 2021, the Department’s Chief Executive, Dr John Wakefield, issued the Health Employment Directive No. 12/21 – Employee COVID-19 vaccination requirements (‘the Directive’), pursuant to s 51A(1) of the Hospital and Health Boards Act 2011 (Qld).
  3. [3]
    As a midwife whose usual workplace was a hospital, the Appellant was an employee to whom the Directive applied,[1] and was therefore required to provide evidence of having received two doses of a COVID-19 vaccine by 31 October 2021.[2] Relevantly, an employee to whom the Directive applied was not required to be so vaccinated if they were granted an exemption from vaccination because of a recognised medical contraindication, a genuinely held belief, or where another exceptional circumstance existed.[3]

Appeal against exemption decision

  1. [4]
    On 29 September 2021, the Appellant applied for an exemption to the Directive’s mandatory vaccination requirements on the grounds of exceptional circumstances, citing medical issues. Additional supporting material was not provided with this request, as the Appellant advised that her specialist did not believe she met the criteria for a recognised medical contraindication.
  2. [5]
    The Appellant’s exemption application was denied on 23 December 2021, an outcome that was confirmed by internal review on 28 January 2022 (‘the exemption decision’).[4] In the exemption decision, the Appellant was advised that:[5]
  1. 14.
    As you have not received the required dose of a COVID-19 vaccine in accordance with the Directive, and you do not have an approved exemption, you are required to comply with the Directive. You must receive the required dose and provide written confirmation that you have complied with the requirement to be vaccinated against COVID-19 within seven (7) calendar days of receipt of this letter.

…

  1. 16.
    If you do not receive the required dose and provide written confirmation as outlined above, you may be liable for disciplinary action in accordance with section 187(1)(d) of the Public Service Act 2008.

…

  1. 21.
    If you are not satisfied with my decision in relation to the internal review of your grievance, you may lodge a public service appeal. A public service appeal must be lodged with the Industrial Registry within 21 days of you being notified of my decision. Further information can be obtained from the Queensland Industrial Relations Commission (QIRC) on telephone 1300 592 987. Alternatively, you may refer to the QIRC appeals guide available at www.qirc.qld.gov.au.
  1. [6]
    On 4 February 2022, the Appellant filed an appeal in the Commission against the exemption decision under section 197 of the (now repealed) Public Service Act 2008 (Qld).

Appeal against suspension decision

  1. [7]
    On 11 March 2022, the Appellant was asked to show cause as to why disciplinary findings should not be made against her in relation to the following allegation:[6]

You have contravened a direction given to you, pursuant to Health Employment Directive No 12/21, you have not received your first and second dose of a COVID-19 vaccine by 31 October 2021.

  1. [8]
    This show cause notice was issued due to “the absence of an order staying the internal review decision refusing [the Appellant’s] request for an exemption”, following the Appellant’s filing of her appeal against the exemption decision.[7]
  2. [9]
    The Appellant provided a response to this show cause notice on 24 March 2022.
  3. [10]
    On 25 March 2022, the Appellant was advised of the Department’s determination that the allegation had been substantiated on the balance of probabilities, and that, pursuant to section 187(1)(d) of the Public Service Act 2008 (Qld), the Appellant had contravened a direction given to her without reasonable excuse (‘the disciplinary finding decision’).
  4. [11]
    On the basis of this disciplinary finding decision, the Appellant was advised in the same correspondence that the proposed disciplinary action of termination was being seriously considered, and was invited to show cause why this proposed action should not be taken. The Appellant was further advised of the Department’s determination that she was to be suspended without renumeration effective from the date of the disciplinary finding decision.
  5. [12]
    The Appellant filed an appeal against the disciplinary findings decision on 14 April 2022.
  6. [13]
    The Appellant’s appeals against the exemption decision and the disciplinary findings decision will be collectively referred to as ‘the appeals’ for the purposes of this decision. The exemption decision and the disciplinary findings decision will similarly be collectively referred to as ‘the appealed decisions’.

Issue for determination

  1. [14]
    On 15 July 2024, Vice President O'Connor issued directions ordering the filing of written submissions addressing why the Commission should decide not to hear the appeals pursuant to s 562A(3) of the Industrial Relations Act 2016 (Qld) (‘the IR Act’).
  1. [15]
    Section 562A(3) of the IR Act outlines that:

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

…

  1. (3)
    The commission may decide it will not hear a public service appeal against a decision if –
  1. (a)
    the appellant has made an application to a court of tribunal relating to the decision, whether or not the application has been fully decided; or
  1. (b)
    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. (i)
    is frivolous or vexatious; or
  1. (ii)
    is misconceived or lacks substance; or
  1. (iii)
    should not be heard for another compelling reason.
  1. [16]
    Relevantly, on 16 July 2024, the Department first notified the Industrial Registry that the Appellant’s employment was terminated on 21 September 2023.[8] That the Appellant’s employment with the Department was terminated on this date is not controversial between the parties.
  2. [17]
    The present issue for my determination is the issue on which the parties have filed written submissions, namely, whether the Commission should decide not to hear the appeals pursuant to s 562A(3) of the IR Act. This issue has been dealt with on the papers, with reference to the submissions filed by both parties, pursuant to s 451(1) of the Act.

Preliminary note on legislative framework

  1. [18]
    The Public Sector Act 2022 (Qld) (‘the PS Act’) commenced on 1 March 2023, repealing the previous Public Service Act 2008 (Qld) in effect both at the time of the appealed decisions and when Ms Want filed her appeals.
  2. [19]
    Section 324 of the PS Act provides the following:
  1. This section applies if –
  1. (a)
    before the commencement, a person appealed against a decision under the repealed Act, section 194; and
  1. (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. 
  1. [20]
    Immediately before the commencement of the PS Act, Ms Want’s appeals had not been decided. These appeals are now to be decided under ch 3 pt 10 of the PS Act, which allows for appeals against disciplinary decisions (such as the disciplinary finding decision)[9] and against fair treatment decisions (such as the exemption decision).[10]

Submissions of the parties

  1. [21]
    The Appellant relevantly submitted the following:[11]
  1. 15.
    [On] 23 December 2021 I was denied an exemption certificate from Queensland Department of Health …
  1. 16.
    As previously mentioned I have a very rare Auto-immune condition that has for health reasons restricted my ability to comply with the directive from Queensland Department of Health, therefore I have been unfairly discriminated against and was unable to return to work since the mandate was in force (31 October 2021).
  1. 17.
    Queensland Department of Health terminated my employment on 21 September 2023 due to not meeting the Vaccine Mandate.
  1. [22]
    The Respondent relevantly submitted that:[12]
  1. 5.
    On 29 September 2021, Ms Want applied for an exemption to the mandatory vaccine requirements on the grounds of ‘other exceptional circumstances’, citing medical issues including an autoimmune disease…when asked to provide additional supporting material, Ms Want advised that, according to her specialist, she did not meeting the criteria for a recognised medical contraindication.
  1. 6.
    Ms Want’s exemption application was denied. This was confirmed by internal review on 28 January 2022.
  1. 7.
    By letter dated 25 March 2022, Ms Want was suspended without pay. At the time of her suspension from duty without pay, Ms Want was unable to attend her usual workplace, or perform her usual duties, as she was not vaccinated.
  1. 8.
    By letter dated 21 September 2023, Ms Want’s employment with CHHHS was terminated effective immediately from the date of receipt of the letter.
  1. 9.
    The Department requests the Commission exercise its discretion under section 562A(3)(b)(iii) of the Industrial Relations Act 2016 … to dismiss the Appeals on the basis that it would not be in the public interest for the Commission’s time and resources to be spent on an appeal where there is no practical effect on the person’s continued employment.
  1. 10.
    At the time of filing the appeals, Ms Want was still employed by the Department. However, on 21 September 2023, Ms Want’s employment was terminated … As Ms Want is no longer an employee of the Department, there can be no practical effect from any decision made in respect of either Appeal.
  1. [23]
    In reply submissions, the Appellant further relevantly contended that:[13]
  1. 1.
    There was no medical evidence why I was denied the exemption and no testing has been undertaken on the auto-immune disease … with any COVID-19 Vaccine.
  1. 2.
    This is such a unique case that the commission ought to hear the case, as QLD Health never declared to me that the vaccine was safe for me to take with my very rare Auto-immune disease. I have been unfairly treated and my livelihood has been severely compromised due to QLD Health not being able to tell me if I would not have any adverse effects if I did comply in taking the COVID vaccine – where there is risk, there ought to be choice.
  1. 3.
    The Respondent seeks to maintain that as it has terminated my employment on the basis that there was noncompliance with a Directive relating to Covid-19 vaccination requirements that there is no utility in continuing the proceedings.

The substance of the proceedings goes to the validity of that termination using the directive where no guarantee could be given to myself that the vaccination would not cause me harm in the context of my notified auto immune disease.

 That termination would be wrongful in the event that I was granted an exemption.

That same issue goes to the heart of the second appeal relating to the suspension of the Applicant from duty without normal renumeration.

In the circumstances I maintain that there is an important issue to be determined that will have meaningful consequences.

…

  1. 7.
    I ask the Commission that the appeals be heard and utilise its discretion, as my case is unique and I believe I have been unfairly treated in that I was not granted an exemption for my unique auto-immune disease …

Consideration

  1. [24]
    Section 562B of the IR Act clarifies that the purpose of a public service appeal is “to decide whether the decision appealed against was fair and reasonable.”
  2. [25]
    Section 562C of the IR Act further stipulates that:

562C Public service appeals – decision on appeal

  1. In deciding a public service appeal, the commission may –
  1. confirm the decision appealed against; or

…

  1. for another appeal – set the decision aside, and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.
  1. [26]
    Having considered the submissions of both parties, my view is that I should exercise my discretion and not hear Ms Want’s appeals. This is for the compelling reason that, given Ms Want is no longer employed by the Department, there can be “no practical effect” from any decision I make in respect of either of her appeals.[14]
  2. [27]
    If I confirmed the appealed decisions pursuant to s 562C(1)(a) of the IR Act, my doing so would have no effect on Ms Want given the termination of her employment. If, in the alternative, I set aside the appealed decisions and substituted them with new decisions pursuant to s 562C(1)(c) of the IR Act, those decisions would equally have no practical effect on Ms Want because she is no longer an employee of the Department.
  3. [28]
    As observed by Deputy President Merrell in Venables v State of Queensland (Queensland Health), the Commission’s time “should only be spent hearing and determining public service appeals where there will be some practical effect upon the employee’s continued employment.”[15]
  4. [29]
    Ms Want’s submissions demonstrate that she believes the termination of her employment with the Department to be unfair and invalid; it is this belief of the Appellant that has led to her continued pursuit of her appeals following, and despite, her termination. In doing so, the Appellant has misunderstood the limited remedies available in appeals of this nature; public sector appeals are plainly not the appropriate vehicle through which to seek reinstatement following termination, or to complain of one’s termination.[16]
  5. [30]
    It is clear that any decision I make in respect of either of Ms Want’s appeals will have no practical effect on her continued employment, and I believe this to be a compelling reason not to hear the appeals.
  6. [31]
    Having arrived at this conclusion, it is not necessary to deal with the additional submissions of the parties regarding, e.g., the merit and substance (or the lack thereof) of the appeals.
  7. [32]
    For that reason, there is a compelling reason to decline to hear the appeals pursuant to section 562A(3)(b)(iii) of the Act.
  8. [33]
    I order accordingly.

Order

The Commission declines to hear the appeals in PSA/2022/209 and PSA/2022/468, pursuant to section 562A(3)(b)(iii) of the Industrial Relations Act 2016 (Qld). 

Footnotes

[1] Health Employment Directive No. 12/21 – Employee COVID-19 vaccination requirements, cl 7.1.

[2] Ibid, cl 8.1.

[3] Ibid, cl 10.2.

[4] Correspondence of Ms T. Cavanagh (A/Executive Director Allied Health, Cairns and Hinterland Hospital and Health Service) to Ms J. Want, dated 28 January 2022, 2.

[5] Ibid, 3.

[6] Correspondence of Ms E. Gallagher (Executive Director People and Engagement, Cairns and Hinterland Hospital and Health Service) to Ms J. Want, dated 25 March 2022, [1].

[7] Ibid, [3]-[4].

[8] Email from Ms N. Smith (A/Assistance Crown Solicitor) on behalf of the Respondent to the Industrial Registry, dated 16 July 2024.

[9] Public Sector Act 2022 (Qld) s 131(1)(c).

[10] Ibid, s 131(1)(d).

[11] Submissions of the Appellant, filed 9 August 2024, [15]-[17].

[12] Submissions of the Respondent, filed 26 August 2024, [5]-[10].

[13] Further Submissions of the Appellant, filed 9 September 2024, [1]-[3], [7].

[14] Venables v State of Queensland (Queensland Health) [2022] QIRC 137 [20].

[15] Ibid [23]; see also Keating v State of Queensland (Queensland Health) [2024] QIRC 122.

[16] I note that, pursuant to s 132(1)(e) of the Public Sector Act 2022 (Qld), decisions to terminate the employment of a person cannot be appealed. The definition of ‘disciplinary decision’ in s 129 also excludes decisions under a disciplinary law to discipline a person by termination of employment. 

Close

Editorial Notes

  • Published Case Name:

    Want v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Want v State of Queensland (Queensland Health)

  • MNC:

    [2025] QIRC 60

  • Court:

    QIRC

  • Judge(s):

    Gazenbeek IC

  • Date:

    26 Feb 2025

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
Keating v State of Queensland (Queensland Health) [2024] QIRC 122
2 citations
Jump To
Cite 1 - [2024] QIRC 122
Cite 2 - [2024] QIRC 122
Venables v State of Queensland (Queensland Health) [2022] QIRC 137
2 citations
Jump To
Cite 1 - [2022] QIRC 137
Cite 2 - [2022] QIRC 137

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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