QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Malancioiu v State of Queensland (Queensland Health) [2024] QIRC 300
	
PARTIES:	Malancioiu, Alex
(Applicant)

v

State of Queensland (Queensland Health)
(Respondent)	
CASE NO:	TD/2023/95
	
PROCEEDING:	Application for reinstatement
	
DELIVERED ON:	18 December 2024
	
MEMBER:	McLennan IC	
HEARD AT:	On the papers	
ORDERS:	Pursuant to s 541(b)(ii) of the Industrial Relations Act 2016 (Qld), the application is dismissed.	
CATCHWORDS:	INDUSTRIAL LAW – DISMISSAL –APPLICATION FOR REINSTATEMENT – applicant employed by Queensland Health – where the Health Employment Directive 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 – applicant did not comply with the vaccination requirements – applicant terminated following disciplinary process – whether further proceeding is necessary or desirable in the public interest – consideration of relevant factors – proceedings dismissed	
LEGISLATION AND INSTRUMENTS:
	Hospital and Health Boards Act 2011 (Qld) s 51A

Industrial Relations Act 1999, s 331

Industrial Relations Act 2016 (Qld) s 317, s 318, s 320, s 541 

Health Employment Directive No 12/21 - Employee COVID-19 vaccination requirement cl 7, cl 8, cl 10	
CASES:	Bakhash v State of Queensland (Department of Education) [2022] QIRC 362

Bax v State of Queensland (Queensland Health) [2022] QIRC 304

Byrne & Frew v Australian Airlines Ltd [1995] 185 CLR 410

Campbell v State of Queensland (Department of Justice and Attorney-General) [2019] ICQ 18

Donnelly v State of Queensland (Queensland Health) [2022] QIRC 149

Harris v State of Queensland (Queensland Health) [2023] QIRC 342

House v The King [1936] HCA 40; (1936) 55 CLR 499

Kazuva v State of Queensland (Queensland Health) [2022] QIRC 147

Laegal v Scenic Rim Regional Council [2018] QIRC 136

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

Slykerman v State of Queensland (Queensland Health) [2022] QIRC 039

Reasons for Decision
[1]	Mr Alex Malancioiu (the Applicant) was employed by the State of Queensland (Queensland Health) (the Respondent) as a Clinical Data Manager, Department of Cardiology at the Princess Alexandra Hospital within Metro South Health. He was employed with the Respondent from 25 September 2006 to 15 August 2023. 
[2]	On 15 August 2023, the Applicant's employment was terminated because of his failure to comply with Health Employment Directive No 12/21 - Employee COVID-19 vaccination requirement (Directive 12/21). 
Background
[3]	On 11 September 2021, Directive 12/21 was issued which required existing employees in the categories set out in cl 7.1 to have received two doses of a COVID-19 vaccine by 31 October 2021 and provide evidence of same within seven days after receiving the vaccine.
[4]	Relevantly, cl 8 of Directive 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.

[5]	Clause 10.2 of the Directive provided that an exemption application would be considered where the employee had a recognised medical contraindication, the employee had a genuinely held religious belief, or where another exceptional circumstance existed. 
[6]	On 24 September 2021, the Applicant applied for an exemption to the mandatory vaccine requirements due to his 'genuinely held religious belief'. The Applicant provided a letter from Reverend Ian Jones, Senior Pastor, Church at the Gabba supporting his exemption application. 
[7]	On 10 December 2021, Mr Dave Waters, Executive Director Human Resources, MSH advised the Applicant that his application for an exemption had been declined. In that correspondence, the Applicant was directed to comply with Directive 12/21 by receiving the required dose of a COVID-19 vaccine and providing confirmation of his compliance within seven days of receipt of that letter. The Applicant requested an internal review of that decision.
[8]	On 24 January 2022, the Applicant was advised that the decision to refuse his exemption was upheld on internal review.  Again, he was directed to comply with Directive 12/21. 
[9]	The Applicant filed a public service appeal against the internal review decision. That matter has been subsequently struck out.
[10]	On 24 February 2022, the Respondent wrote to the Applicant inviting him to show cause in relation to the Allegation he had failed to follow a reasonable and lawful direction to comply with the vaccination requirements set out in Directive 12/21. The Applicant was suspended from duty on normal remuneration and provided a period of 14 days to respond as to why he should not be suspended without pay.
[11]	On 16 March 2022, the Respondent wrote to the Applicant advising him that the Allegation was found to be substantiated, that the Applicant had contravened, without reasonable excuse, a direction given to him as a health service employee by a responsible person. The Applicant was afforded seven days from the receipt of the disciplinary finding decision to respond to the proposed termination of his employment. He was suspended from duty without pay during this time.
[12]	The Applicant did not respond to the proposed disciplinary action of termination of his employment. Further, the Applicant did not appeal the disciplinary finding decision, despite being advised of the opportunity to do so.
[13]	From 23 March 2022 to 19 July 2023, the disciplinary process was placed on hold pending the outcome of his Appeal and while the matter of Mocnik & Others v State of Queensland (Queensland Health) ('Mocnik') remained before the Commission.
[14]	On 19 July 2023, the Respondent wrote to the Applicant advising the disciplinary process would resume following the decision in Mocnik. The Applicant was provided with a further opportunity to respond to the proposed termination of his employment within seven days, which he provided on 26 July 2023. 
[15]	On 14 August 2023, the Respondent informed the Applicant that his employment was terminated, effective immediately from the date of receipt of the letter. 
[16]	On 4 September 2023, the Applicant filed this reinstatement application. 
Directions Order 
[17]	A conciliation conference of this matter was held on 23 October 2023. The matter was unable to be resolved at conciliation and subsequently, a certificate pursuant to s 318(3)(a) of the Industrial Relations Act 2016 (Qld) (IR Act) was issued. 
[18]	On 21 November 2023, the Applicant emailed the Industrial Registry requesting for the matter to proceed to a hearing. 
[19]	On 23 January 2024, I issued a Directions Order requiring the Applicant to file in the Industrial Registry and serve on the Respondent, written submissions to show cause pursuant to s 541(b)(ii) of the IR Act, why the Commission should not dismiss the application, or refrain from hearing, further hearing, or deciding the application, if the Commission considers further proceedings by the Commission are not necessary or desirable in the public interest. 
Submissions
[20]	In accordance with the Directions Order, the parties each filed written submissions:
[21]	The Applicant filed his submissions on 30 January 2024.
[22]	The Respondent filed its submissions on 6 February 2024. 
[23]	The Applicant filed his submissions in reply on 13 February 2024. 
The Applicant's submissions
[24]	The Applicant submitted (in summary): 
•	The Respondents abused their discretion, power, and exceeded their authority in their interpretation and implementation of Directive 12/21.
•	Clause 10 of Directive 12/21 allowed for exemptions to be granted based on the three categories specified at cl 10.2, and the Decision makers' discretion to grant religious and medical categories of exemptions was "strictly limited to the corroboration of the documents submitted for these two categories" and "nothing more". 
•	The Respondents did not have unlimited discretion for exemption categories and such interpretation of Directive 12/21 would introduce "external inconsistencies with Queensland and Australian laws" and "uncertainty".
•	The Respondent was obligated to follow its own guidance and grant exemptions to all applications which fulfil the stated requirements. 
•	The religious exemption sought by the Applicant was lawful and reasonable and it was the decision to deny such exemption which subjected the Applicant "to an unjust disciplinary process, and eventually the unfair termination of my employment". 
•	The Respondents did not act within the intention of Directive 12/21 in refusing the Applicant's religious exemption. 
•	A few weeks before the decision to revoke Directive 12/21 was made, the Applicant's employment was terminated. The Applicant submitted that "it seems quite likely that Respondents would have been aware of the soon to come change, yet they proceeded with my termination".
•	Not only was the dismissal disproportionate "because of its timing and changed general circumstances, but also because of the unlimited, on-going impact on [the Applicant's] human rights including [his] privacy and reputation, and on [his] future prospects".
•	Even if the Applicant was in breach of Directive 12/21, it would be his only transgression in his 17 years of service. 
•	None of the cases quoted by Respondents are relevant to the Applicant's case as "none of them seem to have dealt with the root cause of the injustice committed". 
•	The Applicant intends to dispute the "subjective and arbitrary manner in which HED 12/21 was implemented by Respondents, contravening the clear intention, framework and requirements set by HED 12/21". 
The Respondent 
[25]	The Respondent's submissions are summarised as follows: 
•	The matters raised in the Applicant's Application have previously been considered and determined in numerous public service appeals and the collective reinstatement matter of Mocnik or are otherwise misconceived or lacking in substance. 
•	The decision of Mocnik confirmed that HED 12/21 is a condition of employment to be vaccinated unless an exemption is granted. 
•	The requirement to receive a COVID-19 vaccine has repeatedly been found to be lawful and reasonable by this Commission.
•	The Applicant's submission that the decision makers' discretion was removed when deciding whether or not to grant an exemption on the basis of genuinely held religious grounds is misconceived. Clause 10 of Directive 12/21 stipulates that an "exemption application will be considered where the employee has a genuinely held religious belief." The Respondent was therefore not obliged to grant an exemption. 
•	It was open to the decision makers to be satisfied that the Applicant's beliefs did not outweigh or take precedence over the objectives and requirements of Directive 12/21 considering the very onerous burden on the Department to protect the health and safety of its other staff, patients and visitors. 
•	The Applicant was not forced or coerced to become vaccinated – he was free to choose whether or not he received the vaccine. 
•	The fact that Directive 12/21 was revoked is not a relevant consideration for the Commission in determining whether the Applicant's dismissal was unfair, as the decision was made because he contravened a lawful direction given to him (at the time of the dismissal he had failed to comply with such direction for 23 months).
Relevant Legislation and Legal Framework
Section 316 and 320 of the IR Act 

[26]	Section 316 of the IR Act says that a dismissal is unfair if it is harsh, unjust or unreasonable. The words harsh, unjust or unreasonable are to be given their plain and ordinary meaning.
[27]	In Byrne & Frew v Australian Airlines Ltd, McHugh and Gummow JJ explained that: 
It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.
[28]	Section 320 of the IR Act sets out the matters to be considered by the Commission in hearing an application under s 317: 
320 	Matters to be considered in deciding an application 
In deciding whether a dismissal was harsh, unjust or unreasonable, the commission must consider – 
(a) 	whether the employee was notified of the reason for dismissal; and 
(b) 	whether the dismissal related to – 
	(i) 	the operational requirements of the employer's undertaking, establishment or service; or 
	(ii) 	the employee's conduct, capacity or performance; and 
(c)	 if the dismissal relates to the employee's conduct, capacity or performance – 
	(i) 	whether the employee had been warned about the conduct, capacity or performance; or 
	(ii) 	whether the employee was given an opportunity to respond to the claim about the conduct, capacity or performance; and 
(d) 	any other matters the commission considers relevant.
Section 541 of the IR Act

[29]	Section 541 of the IR Act provides (emphasis added): 
The court or commission may, in an industrial cause do any of the following—

(a)		make a decision it considers just, and include provision for preventing or settling the industrial dispute or dealing with the industrial matter to which the cause relates, without being restricted to any specific relief claimed by the parties to the cause;

(b)	dismiss the cause, or refrain from hearing, further hearing, or deciding the cause, if the court or commission considers—

(i)	the cause is trivial; or

(ii)	further proceedings by the court or commission are not necessary or desirable in the public interest;

(c)	order a party to the cause to pay another party the expenses, including witness expenses, it considers appropriate.
[30]	Clause 10 of Directive 12/21 provides that where an employee is unable to be vaccinated, an exemption may be granted as follows (emphasis added): 
10.1 	Where an employee is unable to be vaccinated they are required to complete an exemption application form. 
10.2 	Exemptions will be considered in the following circumstances: 
	• 	Where an existing employee has a recognised medical contraindication; 
	• 	Where an existing employee has a genuinely held religious belief; 
	• 	Where another exceptional circumstance exists. 
10.3	 If an existing employee is granted an exemption, they do not have to comply with clause 8 or 9 of this Directive for the duration of that exemption 
Consideration
Should the proceeding be dismissed? 
[31]	The Commission has the discretion to dismiss a cause, or refrain from hearing or deciding a cause, if the Commission considers that further proceedings by the Commission are not necessary or desirable in the public interest.
[32]	In Harris v State of Queensland (Queensland Health) when considering dismissing proceedings under s 541 of the IR Act, Vice President O'Connor provided (emphasis added): 
In exercising the discretion, the Commission is mindful that the power to dismiss or refrain from hearing a cause is to be sparingly employed and is not to be used except in circumstances where the Commission is satisfied that on the material the matter is obviously untenable or groundless and cannot succeed.
[33]	It is well accepted that Directive 12/21 was a lawful direction that required compliance from staff. The underlying rationale for Directive 12/21 is that relevant staff must be vaccinated against COVID-19 in order to minimise the effects of the virus on the employees and the public. The decision of Mocnik confirmed that HED 12/21 is a condition of employment to be vaccinated unless an exemption is granted. 
[34]	The Applicant has not raised any rational argument as to why his dismissal was unfair, unjust or unreasonable that has not already been brought before this Commission and relevantly dismissed. 
[35]	The Applicant's central argument stems from his belief that the Respondent's refusal to grant his religious exemption was in contravention of the "clear intention, framework and requirements set by HED 12/21". This is because the Respondent was satisfied "that [the Applicant's] beliefs are genuinely held", but the decision was made that his beliefs did not outweigh the policy intent of Directive 12/21. According to the Applicant, the Respondent was "obligated to grant exemptions as set by HED 12/21 and the EC-19VEAF to all applicants who fulfilled exemption requirements" and they have no power to utilise discretion when determining religious and medical exemptions.  
[36]	The Applicant submitted: 
To my knowledge, the matters raised in my application have not been heard by the Commission. It seems to me that my application deals with the root cause of many previous matters relating to religious and medical exemptions.
[37]	It has been previously determined by this Commission, that Directive 12/21 required the Department to consider granting an exemption, but they were not obliged to grant an exemption. 
[38]	In Kazuva v State of Queensland (Queensland Health), Industrial Commissioner Power held (citations omitted, emphasis added): 
The Directive provides that the Respondent must consider an application for an exemption, however it is not obliged to grant an exemption. As determined in similar matters, it is open to the Respondent to determine that genuinely held religious beliefs do not outweigh the competing considerations of workplace and community safety in accordance with the purpose of the Directive. In this case, the workplace and community include those who access services from BreastScreen Queensland and WMH in which the Appellant is employed as a Radiographer.
[39]	Similarly, Industrial Commissioner Dwyer noted in Slykerman v State of Queensland (Queensland Health) (emphasis added):
Ms Slykerman's true complaint is not that her religious beliefs have not been recognised. It is that they have not been given the degree of recognition that she thinks they deserve. Ms Slykerman's views in this regard are undoubtedly informed by her views on the efficacy of the vaccines.
As an aside, it ought to be noted for Ms Slykerman's benefit that the decision to reject her application for exemption is not in any way a criticism or diminishment of her religious beliefs. Ms Slykerman's beliefs are in no way controversial and are shared by many people around the world.
It is not the case that Ms Slykerman's religious beliefs have been cast aside without consideration or recognition. It is simply that, in these unprecedented times, difficult choices must be taken that require weighing personal beliefs and freedoms against the greater good of the community.
[40]	Following the rejection of the Applicant's exemption application and subsequent review, the Applicant was obligated to comply with the requirements of Directive 12/21. In circumstances where there is no dispute as to the lawful and reasonable nature of the direction, it was inevitable that the Applicant would be sanctioned for his non-compliance.
[41]	Despite the Applicant's submission that the Department terminated his employment some weeks before Directive 12/21 was revoked, it is not a relevant consideration of this Commission as to whether or not the Decision was unfair. The Applicant was dismissed because he contravened a lawful and reasonable direction given to him by his employer. 
[42]	While the Applicant contended his dismissal was unwarranted as his non-compliance with Directive 12/21 "would be only one transgression in my 17 years of service", in Bakhash v State of Queensland (Department of Education), 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.
[43]	The Applicant contended that the dismissal was disproportionate due to the ongoing impact on his human rights, however the decision maker appropriately determined that any impact on the Applicant's human rights was reasonably justified as it was in the public interest to ensure the readiness of the health system in dealing with the pandemic, that public servants obey lawful instructions of the Director-General and the benefits to health of vaccination during the pandemic. This was a reasonable conclusion to reach in balancing the human rights of the Applicant with the need to ensure the safety of his work colleagues and the general public.
[44]	In Campbell v State of Queensland (Department of Justice and Attorney-General), Justice Martin provided (emphasis added, citations omitted):

[25]	Similarly, in Prange v Brisbane City Council, Hall P held at [3] that: 

"The power to dismiss proceedings pursuant to s. 331 of the Act, on the ground that further proceedings are not necessary or desirable in the public interest, is a discretionary power. The discretion is not vested in this Court. The discretion is vested in the Commission. Only in limited circumstances may this Court intervene. In House v The King at 504 to 506, Dixon, Evatt and McTiernan JJ explained:

'The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.’

[26]	In the earlier case of Quaedvlieg & Ors v Boral Resources (Qld) Pty Ltd Hall P, in dealing with an application to strike out for want of prosecution, cited with approval the reasoning of Thomas JA in Quinlan v Rothwell as follows: 

"There is now a consciousness of the need for some level of efficiency in the use of the courts as a public resource. That, of course, must not displace the need for reasonable access to the courts and the provision of justice according to law in each matter, but it highlights the fact that the former laissez faire attitude by courts towards the leisurely conduct of actions at the will of the parties has ended. At the same time the rules of court are not an end in themselves. They do not exist for the discipline of practitioners or clients, or for the protection of courts from inefficient litigants, but rather as a means of ensuring that issues will be defined in an orderly way and that parties have the opportunity of full preparation of their case before the trial commences. The rules also afford defendants the means of bringing to an end actions in which the other party will not abide by the rules."

[27] 	Insofar as it may confine the exercise of discretion under s 541, the purpose of the Act is stated as follows: 
	“3 Main purpose of Act 
The main purpose of this Act is to provide for a framework for cooperative industrial relations that— 
	(a) 	is fair and balanced; and 
	(b) 	supports the delivery of high quality services, economic prosperity and social justice for Queenslanders.” 
[28] 	The process for consideration of an application under s 541 does not require that the respondent’s case be taken at its highest. The cognate provisions in federal legislation9 were frequently considered by Full Benches of the federal tribunal, the Federal Court of Australia and the High Court of Australia. The accepted approach was that the applicant bore the onus of making the claim for relief. But the ascertainment in any particular case of where the public interest lay often depended on a balancing of interests, including competing public interests, and was very much a question of fact and degree. 
[29]	 As the power given to the Commission by s 541 can prevent a party from pursuing relief otherwise available under the IR Act it is one which is to be exercised with due circumspection on a proper consideration of relevant materials.11 A “proper consideration” cannot be made where the case for the respondent is simply taken at its highest. While the onus remains on an applicant, the requirement to consider the “public interest” cannot be satisfied if an artificial inflation of the respondent’s case is applied. Indeed, to take a respondent’s case at its highest would almost always result in the dismissal of an application under this section. On an application of this type, a respondent is not relieved of any requirement to advance a case. 

[45]	Section 541 of the IR Act is indistinguishable from its predecessor, namely s 331 of the Industrial Relations Act 1999 (Qld). Section 331 relevantly provided:
The court or commission may, in an industrial cause -
…
(b) 	dismiss the cause, or refrain from hearing, further hearing, or deciding the cause, if the court or commission considers -
	(i)	the cause is trivial; or
(ii) 	further proceedings by the court or commission are not necessary or desirable in the public interest.

[46]	In the Commission's view, the notion of 'public interest' is broad enough that it can incorporate consideration of the public interest with respect to both the efficient use of the Commission's resources and the likely impact that dealing with one proceeding will have on the Commission's capacity to efficiently deal with other proceedings.
[47]	Given the lack of unique arguments raised by the Applicant throughout these proceedings, it can be concluded that any further proceedings would be a waste of the Commission's resources. 
Conclusion
[48]	For the reasons outlined above, there is not any material before the Commission that would justify progressing this matter to hearing. I am satisfied that any further proceedings by the Commission are not necessary or desirable in the public interest pursuant to s 541(b)(ii) of the IR Act. 
[49]	I order accordingly.
Orders
1.	Pursuant to s 541(b)(ii) of the Industrial Relations Act 2016 (Qld), the application is dismissed.