QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Colebourne v State of Queensland (Queensland Police Service) [2025] QIRC 123
	
PARTIES:	Colebourne, Janette
(Applicant)

v

State of Queensland (Queensland Police Service)
(Respondent)	
CASE NO:	TD/2024/27
	
PROCEEDING:	Application for reinstatement
	
DELIVERED ON:	19 May 2025	
MEMBER:	Caddie IC	
HEARD AT:	On the papers
	
ORDERS:	1.	The application for an extension of time is refused.
2.	The application for reinstatement in matter number TD/2024/27 is dismissed. 	
CATCHWORDS:	INDUSTRIAL LAW – UNFAIR DISMISSAL –  Application for reinstatement – where Application for reinstatement was filed out of time – consideration of discretion to extend time – where Applicant was dismissed for failure to comply with  a lawful and reasonable Direction – where  Direction was later held to be unlawful following judicial review – consideration of whether dismissal pursuant to a Direction later found to be unlawful increases the prospects of success in the substantive application – where the Commission declines to exercise discretion to extend time.  	
LEGISLATION AND INSTRUMENTS:
	Human Rights Act 2019 (Qld) s 58

Industrial Relations Act 2016 (Qld) ss 316, 317, 317(2), 321, 322, 541

Police Service Administration Act 1990 (Qld) cl 4.9

Public Sector Act 2022 (Qld) s 91

Queensland Public Service Code of Conduct cl 1.5 	
CASES:	Alfred v State of Queensland (Department of Justice and Attorney General) [2016] QIRC 028

Cherti v Queensland Rail [2014] QIRC 220

Coleman v Power (2004) 220 CLR 1

Construction, Forestry, Mining & Energy Industrial Union of Employees Queensland v Brisbane City Council [2022] QIRC 339

Herwin v Flexihire Pty Ltd (1995) 149 QGIF 709

Johnston & Ors v Carroll (Commissioner of the Queensland Police Service) & Anor; Witthahn & Ors v Wakefield (Chief Executive of Hospital and Health Services and Director General of Queensland Health); Sutton & Ors v Carroll (Commissioner of the Queensland Police Service) [2024] QSC 2 

Police v Grozev [2006] SASC 353

Sexton v Pacific National (ACT) Pty Ltd (Unreported, Australian Industrial Relations Commission, Vice President Lawler, 14 May 2003)

Stacey v State of Queensland (Department of Education) [2024] QIRC 220

Strugnell v Workpac Light Industrial Pty Ltd [2005] ICQ 45 (2005) 180 QGIG 628

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

Weaver v Ipswich City Council [2021] QIRC 234

Williams v State of Queensland (Queensland Ambulance Service) [2024] QIRC 294

Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43	
Reasons for Decision
Introduction
[1] 	Ms Janette Colebourne ('Ms Colebourne') was employed by the Queensland Police Service ('QPS') as an Administration Officer and, upon secondment, as an Injury Management Advisor. She commenced her employment with QPS on 6 January 2003 and was dismissed on 7 August 2023. 
[2]	Ms Colebourne was dismissed following a formal disciplinary process, for 'failure to follow a lawful and reasonable direction in relation to receiving a mandated covid vaccination as per Instrument of Commissioner's Direction No.12 issued on 7 September 2021 and Instrument of Commissioner's Direction No.14 issued on 14 December 2021'.  
[3]	Ms Colebourne seeks reinstatement to her former position pursuant to s 317 of the Industrial Relations Act 2016 (Qld) ('the Act'), contending that she was unfairly dismissed given the decision in Johnston & Ors v Carroll (Commissioner of the Queensland Police Service) & Anor; Witthahn & Ors v Wakefield (Chief Executive of Hospital and Health Services and Director General of Queensland Health); Sutton & Ors v Carroll (Commissioner of the Queensland Police Service) ('Johnston') that the Directions No 12 and No 14 were unlawful ('the Directions'). 
[4]	The application for reinstatement was filed on 28 March 2024. 
[5]	Ms Colebourne seeks the Commission exercise discretion under s 317(2)(b) of the Act to allow the reinstatement application to be heard out of time. That is the subject of this decision.
[6]	For the reasons that follow, I have decided not to exercise my discretion to grant the extension of time. 
Was the application out of time?
[7]	Ms Colebourne was dismissed on 7 August 2023 with the 21-day period ending on 28 August 2023. The reinstatement application was filed on 28 March 2024, 7 months after the first 21-day period expired. 
[8]	Ms Colebourne bears the positive onus of establishing a basis to allow me to exercise my discretion.
What considerations guide the exercise of my discretion?
[9]	Vice President O'Connor outlines the relevant considerations in Weaver v Ipswich City Council:
[12] 	It is possible to distil from the relevant authorities the following principles which ought to be considered by the Commission when exercising its discretion to extend time within which to make an application for reinstatement under s 317(2)(b) of the Act: 
(i)	the length of the delay; 
(ii)	the explanation for the delay; 
(iii)	the prejudice to the Applicant if the extension of time is not granted; 
(iv)	the prejudice to the Respondent if the extension of time is granted; 
(v)	any relevant conduct of the Respondent; and 
(vi)	the prospects of success of the substantive application. 
Length of the delay
[10]	As I noted in Williams v State of Queensland (Queensland Ambulance Service) ('Williams'), Parliament has chosen to impose a 21-day limit on reinstatement applications which should be respected. However, this is not simply an arbitrary cut off point, unrelated to the demands of justice.
[11]	Vice President O'Connor has also found that the time limit prescribed in s 317(2) of the Act 'should only be departed from in the most compelling of circumstances and where it is necessary to ensure that justice is done between the parties.'
[12]	It is for Ms Colebourne to demonstrate the justice of the case supports an extension, given an employer’s right to expect any such challenge would be made within the required time limit and proceed efficiently towards conclusion. 
[13]	Ms Colebourne acknowledges the delay and accepts that it is significant. However, she submits that the application was filed 'shortly' after the decision in Johnston was handed down, stating this should have been anticipated by the Respondent. Ms Colebourne further submits that the 'exceptional circumstances in this matter are such that the statutory time limit should be departed from in order to ensure justice is done between the parties.'
[14]	QPS argues the delay is substantial with no adequate explanation provided. They note that statutory timeframes should not be easily dispensed with.
[15]	I agree the extension sought in this case is substantial, being for 213 days or 10 additional 21-day periods. Much shorter periods have been refused by the Commission.  I adopt the approach of VP O’Connor that compelling circumstances are required to justify any delay.
Explanation for the delay  
[16]	Ms Colebourne, in affidavit material and submissions, explains the delay as follows: 
•	she was suspended for three years and nine months prior to termination for failing to follow a 'lawful and reasonable directive'; 
•	at the time of termination, she was advised by her union representative that the 'consistent decisions being handed down in the QIRC meant she had very limited prospects of success'; 
•	the Direction her termination was related to was found to be unlawful six months after termination; and 
•	Ms Colebourne, following study of the decision in Johnston, understood she now had prospects and filed her application 'just thirty days after the decision in Johnston was handed down.' 
[17]	Unrelated to Johnston, Ms Colebourne also states that the delay by QPS in responding to her Right to Information requests and appealing 'all of (her) 3 applications caused a significant delay in finding out information about the decisions surrounding (her) suspension'.
[18]	In their response to Ms Colebourne's application for reinstatement, QPS contends 'there was no reason why the applicant could not have filed the application for reinstatement to preserve her rights within 21 days after the dismissal took effect.' QPS refer to my decision in Williams where I found that 'waiting and seeing' was not an adequate explanation for the delay, nor an effective way of securing rights. My reasoning holds true here, despite the Applicant in Williams waiting for a longer period.
[19]	Ms Colebourne submits the 6-month proximity of the Johnston decision to her termination warrants her application being able to proceed. By her own submission Ms Colebourne indicates she was following the Supreme Court proceeding and had raised it with QPS on a number of occasions. One might expect Ms Colebourne, an experienced litigant, would have been aware of timeframes attached to lodging her present application and might reasonably have taken the steps needed to guard her interests awaiting a decision that was considering the lawfulness of the Directions. Arguing that QPS should have expected her application due to her history of challenging decisions speaks more to the factor of prejudice than explaining the delay and is addressed in that context below. 
[20]	Ms Colebourne indicates at the time of her termination she sought advice from her Union in relation to lodging an application for re-instatement. It seems this advice correctly drew her attention to decisions of the Commission dismissing the same claimed reasons for failing to be vaccinated. In Ms Colebourne's case some of these arguments had been considered and rejected already by the Commission in proceedings she initiated herself or was a party to.  
[21]	Given the discussion with her Union, it is probable that the timeframe for lodging an application was discussed. The 21-day timeframe had also been spelt out in the decision-letter terminating her employment. It is apparent Ms Colebourne considered the advice of her Union and decided not to lodge an application for reinstatement. Even though, as discussed above, she was aware of and eagerly awaiting the outcome in the Supreme Court proceeding.
[22]	The only circumstance that has changed since making the active decision not to challenge the termination decision is the release of the Supreme Court decision in Johnston on 27 February 2024. Ms Colebourne argues this decision fundamentally changes her prospects of success as the Directions she failed to comply with were not lawful. Again, QPS relies on my decision in Williams to reiterate that the decision did not have retrospective effect, did not render the Directions invalid, and did not disturb those decisions already made.
[23]	While that is correct, a key difference between Williams and the present case is that Mr Williams was not terminated. He resigned and had no standing to bring the application, making any detailed assessment of his prospects unnecessary. The circumstances of this case require more detailed consideration, which I address in that context below. It is clear, as it was in Williams, that the Johnston decision explains why Ms Colebourne filed the application when she did (albeit 30 days after the decision release). However, this does not constitute an adequate reason for the delay.
[24]	QPS submit that none of the reasons for the delay raised by Ms Colebourne 'amount to exceptional circumstances justifying an extension of time of almost 7 months'. They argue that her suspension (which ceased upon termination) was not relevant to, and could not influence, the delay in filing the application. QPS highlights the fact that Ms Colebourne filed three public service appeals while suspended from duty, arguing this reveals that suspension from duty did not impede her ability to file proceedings in the Commission.
[25]	I also do not comprehend the relevance of Ms Colebourne’s suspension period to the explanation for the length of the delay in filing the application for reinstatement. I understand that Ms Colebourne does not agree with the decision to suspend her without pay but that matter had been raised as a public sector appeal and dismissed by the Commission on 28 January 2022. While objectively a period of suspension of 3 years and 9 months as various processes were underway was lengthy (although not that unusual), it is the timeframe following the termination that is relevant to my decision.  
Prejudice to Ms Colebourne if the application is not granted
[26]	Ms Colebourne contends the prejudice to be suffered by her if the application is not heard is 'substantial', explaining that she has experienced, or will experience:
•	a reduction of pay due to being suspended, such that she must obtain Centrelink support; 
•	being unable to care for her husband as required; 
•	her professional reputation being 'defamed', with her dismissal negatively impacting upon her future ability to obtain employment; 
•	the restrictions upon contact with other work colleagues attendant upon disciplinary proceedings against her were isolating, constituted a restriction upon her freedom of association, and caused her to experience loneliness; 
•	she was not treated equivalently to other employees who 'were allowed back to work without being vaccinated' and who did not 'undergo any disciplinary proceedings'.
[27]	QPS did not explicitly address this matter in their submissions. However, they contend that the Commission ought to reserve its resources for matters of genuine controversy, and further submitted that none of the matters raised by Ms Colebourne in the disciplinary process or in her application, including her personal views or beliefs, have been found to constitute a reasonable excuse in other matters, or are misconceived. 
[28]	The obvious prejudice to Ms Colebourne relates to not having the opportunity to put her case and have it determined at hearing. The matters identified above appear to be consequences of processes pre-termination and the impact of the termination itself, and the active decision not to apply for reinstatement, rather than prejudice inflicted if I do not grant the extension.
[29]	Even if Ms Colebourne were to be entirely successful in her case, much of the prejudice complained of is not capable of being remedied through the Commission. This is because the anchor date for remedies, if the Commission is satisfied the employee was unfairly dismissed, is the date of dismissal.
[30]	Section 321 of the Act provides the following remedies:
	321 	Remedies — reinstatement or re-employment 
		(1)	This section applies if the commission is satisfied an employee was unfairly dismissed.
		(2)	The commission may order the employer to reinstate the employee to the employee’s former position on conditions at least as favourable as the conditions on which the employee was employed immediately before dismissal.
		(3)	If the commission considers reinstatement would be impracticable, the commission may order the employer to re-employ the employee in another position that the employer has available and that the commission considers suitable.
		(4)	The commission may also—
			(a)	make an order it considers necessary to maintain the continuity of the employee’s employment or service; and
			(b)	order the employee to repay any amount paid to the employee by, or for, the employer on the dismissal; and
			(c)	order the employer to pay the employee the remuneration lost, or likely to have been lost, by the employee because of the dismissal, after taking into account any employment benefits or wages received by the employee since the dismissal.
		(5)		This section does not limit the commission’s power to make an interim or interlocutory order.
	322	 Remedies — compensation
	(1)		If, and only if, the commission considers reinstatement or re-employment would be impracticable, the commission may order the employer to pay the employee an amount of compensation decided by the commission.
		(2)		The commission must not award an amount of compensation that is more than—
			(a)	if the employee was employed under an industrial instrument—the wages the employer would have been liable to pay the employee for the 6 months immediately after the dismissal, paid at the rate the employee received immediately before the dismissal; or
			(b)	if the employee was not employed under an industrial instrument—the lesser of the wages under paragraph (a) and an amount equal to half the amount of the high income threshold under the Fair Work Act 2009 (Cwlth) section 333.
		(3)	The commission must take into account any amount paid to the employee by the employer on the dismissal.
		(4)	This section does not limit the commission’s power to make an interim or interlocutory order.
[31]	Losing the current opportunity to have her day in court and, if successful, have remedies ordered is clearly prejudicial to Ms Colebourne. However, any prejudice must be weighed against other significant factors, particularly prospects of success.  
Prejudice to QPS if the application is granted
[32]	Ms Colebourne characterises any prejudice to the QPS afforded by the application being heard out of time as minimal, pointing to the fact that QPS is a 'large employer with constant turnover in staff'.' While Ms Colebourne acknowledges a 'significant' period of time has elapsed since the termination, she argues this is 'dwarfed by the almost four years' she was suspended prior to termination.
[33]	The QPS state that they will be prejudiced if the application for an extension of time is granted because they will incur costs defending the application where ordinarily they could rely upon the action being barred for time.
[34]	Ms Colebourne further contends that any consideration of prejudice to the Respondent ought to be balanced against consideration of the fact that 'it was the employer's conduct in issuing an unlawful direction that has led to this proceeding', stating that it does not 'serve the interest of justice for the employer to hide behind the statutory timeframe to avoid scrutiny of its actions'. Finally, Ms Colebourne underscores how she  '… has constantly fought against the processes she has been subjected to…', arguing that 'the Respondent cannot suggest it is in any way surprised that she would further challenge her termination once the Supreme Court decision was handed down.'
[35]	I reject the submissions of Ms Colebourne that QPS should have maintained a state of expectant readiness for her inevitable application to challenge the termination whenever the Supreme Court judgement was handed down and if (as she contends) it supported the righteousness of her conduct. 
[36]	Rather, I consider the prejudice to QPS to be as they have described it – they will need to defend an application that had not been brought within the required time.  Whilst acknowledging this prejudice, I do not find this challenge would be insurmountable for QPS. 
Any relevant conduct of the QPS
[37]	Ms Colebourne characterises the relevant conduct of QPS as a 'significant contributor' to the impetus for filing the Application for reinstatement. Ms Colebourne submits relevant conduct of QPS is as follows:
(a)	issuing an unlawful Direction; 
(b)	taking 'years' between the issuing of the Direction and the decision to terminate Ms Colebourne; and
(c)	proceeding to terminate Ms Colebourne 'in circumstances where there must have been some doubt' as to the fairness of the termination.
[38]	Ms Colebourne further submits that it is in the public interest and the interests of justice that this conduct by the Respondent be tested. While the QPS did not explicitly address any relevant conduct in their submissions, they submit that none of the matters raised by Ms Colebourne constitute issues that would be necessary or desirable in the public interest pursuant to s 541(b)(ii) of the Act. 
[39]	All of these submissions are misconceived as they fail to address the issue at hand - whether there was conduct of QPS following the termination that contributed to the 213 day delay in filing the application. 
[40]	I conclude there is no relevant conduct of QPS leading to the application being filed 213 days out of time. 
Prospects of success of the substantive application
[41]	This is the critical consideration to be weighed in the particular circumstances of this case. Yes, the delay is significant, there is no adequate reason proffered for the delay other than the Johnston decision happened and it might have an effect, there was no relevant contributing conduct of QPS to the delay and there is the obvious prejudice to each party dependent on the decision I make. 
[42]	The nub of the case relates to whether an employee can be terminated for failing to comply with a lawful and reasonable direction, where the direction is subsequently held to be unlawful but not invalid. And where the Court found that even though the impact on human rights was not adequately considered by the decision maker (hence the Direction was rendered unlawful), the restriction on human rights was reasonable in all of the circumstances.
[43]	Much of the answer to this question can be found in the Johnston decision itself. Which is where I will start.  
What were the legal consequences of Johnston?
[44]	The relevant QPS Directions issued by the Commissioner of Police purported to direct employees to receive doses of a Covid-19 vaccine and related actions. Two key issues were considered by Martin SJA regarding the Directions: broadly, whether the Directions were lawful, and whether they should be set aside.
[45]	Martin SJA did not accept that the Commissioner of Police either identified the human rights that might be affected by the decision or considered whether the decision would be compatible with human rights. Ultimately, the proper consideration required by s 58(1)(b) or s 58(5) was not given.
[46]	However, a closer reading of the judgement reveals that Martin SJA did not find that the failure to properly consider human rights necessarily meant the human rights were unjustifiably limited:
[455]	The rights identified under the HRA must always be considered in light of the words used in s 13(1) – right subject to limits which can "be demonstrably justified in a free and democratic society based on human dignity, equality and freedom." Those rights are held by all persons and, so, the right of one person should be viewed in the light of the same right or rights held by others in a free and democratic society. The responsibility of an employer to consider the occupational health and safety of its employees is one of the responsibilities which must be taken into account in these circumstances. It follows, then, that actions taken which are designed to protect employees if not from actual infection, but at least from serious illness, also need to be taken into account.
[456]	Against that set of considerations is the fundamental right not to be subjected to medical treatment without full, free and informed consent which has been impeded by these directions. They were made unlawfully or ineffectively. Non-compliance with those directions could have had life-changing consequences for an employee who declined to comply with the direction.
[457]	The balancing which needs to be undertaken with respect to those and the other matters referred to above is complicated by the fact that these directions were given in what was, by any measure, an emergency. It was further complicated by the fact that, at the time of giving the directions, the knowledge available about the virus, its variants, its virulence, and its transmissibility was limited and being added to on an almost daily basis.
[458]	Another feature which should be considered is what was not done in the directions. In this case it was not allowing an exception for conscientious objection - notwithstanding an advice (to the Commissioner from the Crown Solicitor) "that a "conscientious" belief will likely be sufficiently analogous to qualify as a ground of discrimination under the HRA".
[459]	There is no formula which can be used to consider this balance. But, having taken into account the matters argued by the parties, I am not satisfied that the balance is in favour of the applicants and so I conclude that the limit imposed on s 17(c) has been demonstrably justified in the terms of s 13.
[460]	It also follows from that that the applicants have not established any ground under the JRA of unreasonableness.

[47]	The QPS Directions were found to be unlawful pursuant to s 58 of the Human Rights Act 2019. Martin SJA clearly delineated the possible remedies flowing from that finding: 
[461]	I have not held that the QPS directions and the QAS directions were invalid, rather I have held that they were unlawful. As each direction has been revoked, the remedies available are confined.
[48]	It was declared that the Directions were unlawful and the Commissioner was restrained from taking any steps with respect to their enforcement or taking any disciplinary proceedings against the QPS applicants to the proceeding based on the impugned Directions. As stated by Martin SJA (citations omitted):
[462]	An order setting aside or quashing the legal effects of the directions is not appropriate. As was said in Probuild Constructions (Aust) Pty ltd v Shade Systems Pty Ltd:
	"[28]	The function of an order in the nature of certiorari is to remove the legal consequences, or purported legal consequences, of an exercise or purported exercise of power which has, at the date of the order, a discernible or apparent legal effect upon rights." (citation omitted)
[463]	In Wingfoot Australia Partners Pty Ltd v Kocak the utility of an order in the nature of certiorari was considered:
	"[25]	The function of an order in the nature of certiorari is to remove the legal consequences or purported legal consequences of an exercise or purported exercise of power. Thus, an order in the nature of certiorari is available only in respect of an exercise or purported exercise of power which has, at the date of order, an "apparent legal effect". An order in the nature of certiorari is not available in respect of an exercise or purported exercise of power the legal effect or purported legal effect of which is moot or spent. An order in the nature of certiorari in those circumstances would be not simply inutile; it would be unavailable." (citation omitted)
[464]	That is the position in which the applicants find themselves. As I have held in other proceedings disciplinary action may still be taken by the Commissioner and Director-General. While it would be unusual for such action to be taken on the basis of an alleged breach of a direction found to have been made unlawfully, that remains a possibility and the appropriate way of proceeding is that taken by Dixon J in Certain Children v Minister for Families and Children (No. 2). In that case his Honour was satisfied that breaches of the Charter equivalent of s 58 had been established, but not jurisdictional error. He made declarations that particular acts were unlawful and then made orders restraining the decision-makers from acting on them.
[465]	That course of conduct is supported by the principles considered in Project Blue Sky Inc v Australian Broadcasting Corporation:
"[100] … Although an act done in contravention of s 160 is not invalid, it is a breach of 	the Act and therefore unlawful. Failure to comply with a directory provision "may in particular cases be punishable". That being so, a person with sufficient interest is entitled to sue for a declaration that the ABA has acted in breach of the Act and, in an appropriate case, obtain an injunction restraining that body from taking any further action based on its unlawful action."
[466]	In Roads and Maritime Services v Desane Properties Pty Ltd a unanimous Court of Appeal (NSW) said that: "we do not accept that the High Court was intending to limit the occasions where an injunction may be granted to prevent conduct consequent upon a breach of an Act to occasions where the relevant breach constituted an offence".
[467]	In each of the Johnston, Sutton and Witthahn groups of applicants there were employees who were required by the directions to be vaccinated. Those applicants declined to comply with the directions. They are entitled to an order protecting them from any liability which might have arisen under those directions.
The legal effect of the Directions in unfair dismissal applications
[49]	The decision of Martin SJA at [463] endorses Wingfoot Australia Partners Pty Ltd v Kocak ('Wingfoot') in finding an order in the nature of certiorari, which would effectively quash the past conduct, is unavailable.
[50]	Such an order would clearly have been pointless in circumstances where former employees have already been dismissed – the legal consequences cannot be removed or reversed by considering the Directions as a nullity. The effect of the decision was twofold: the Commissioner of Police was restrained from taking any steps to enforce the QPS Directions and was restrained from taking any disciplinary actions against any of the applicants pursuant to the Directions. 
[51]	While the QPS Directions were found to be unlawful, the judgement in Johnston does not reach back into the past to undo termination decisions already taken pursuant to those Directions. 
[52]	Rather, the question which must be answered is whether the QPS Directions being declared unlawful would render the undisturbed decision to terminate Ms Colebourne harsh, unjust or unreasonable. 
[53]	Regard must be had both in relation to the mechanisms of discipline and dismissal within the public sector framework; as well as the bounds of the Commission's discretion to hear the application. 
[54]	Section 316 of the Act provides that a dismissal is unfair if it is harsh, unjust, or unreasonable.
[55]	At common law, the phrase 'harsh, unjust or unreasonable' takes an ordinary, non-technical meaning, intended to apply to a variety of situations. The terms 'harsh', 'unjust' and 'unreasonable' may overlap.
[56]	An unreasonable decision has been further described as one which lacks intelligent justification in all the relevant circumstances.
[57]	Decisions which are unjust or unreasonable include those where an employee is not guilty of the allegations levelled against them or are based on inferences not reasonably drawn from the material before the employer. 
[58]	The task of the Commission is to assess whether it should intervene to protect the applicant against a decision which is fundamentally one for the employer to make. Where an employee is given a reasonable opportunity to respond to the allegations, an honest decision of the employer, if formed on reasonable grounds, will be held immune from interference by the Commission.
The source of power for the Respondent dismissing the Applicant
[59]	Section 91 of the Public Sector Act 2022 (Qld) ('Public Sector Act') relevantly provides (emphasis added)
	91	Grounds for discipline
		(1)	A public sector employee's chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has —
			…
				(b)     been guilty of misconduct;  or
			…
				(d)	contravened, without reasonable excuse, a direction given to the employee as 				a public sector employee by a responsible person; or
		…
				(h)	contravened, without reasonable excuse, a relevant standard of conduct in a 				way that is sufficiently serious to warrant disciplinary action.
[60]	The phrase 'reasonably satisfied' refers to a state of mind of the chief executive. 'Satisfaction' is comparable to the more commonly referred state of mind of 'reasonable belief', which is a greater standard than 'reasonable suspicion'.
[61]	It cannot be contested that the relevant chief executive was, at the time of the dismissal decision, reasonably satisfied that the Directions were lawful and reasonable, and thereby made directions to the employees which were not complied with. The fact that the Directions existed are sufficient to induce the belief or state of mind in a reasonable person that they were lawful.
[62]	The issue lies in whether a reasonable satisfaction can form that directions were not complied with, in circumstances where the Directions were ultimately founded on an error of law (or, as Ms Colebourne also contends, while there was an undecided question regarding their lawfulness being tested in the Supreme Court). 
[63]	The latter contention can be disposed of quickly. In the Police Service Administration Act 1990, the relevant power of the Police Commissioner to issue directions is bestowed by Cl 4.9, which provides (emphasis added): 
(1)	In discharging the prescribed responsibility, the commissioner may give, and cause to be issued, to officers, staff members or police recruits, such directions, written or oral, general or particular as the commissioner considers necessary or convenient for the efficient and proper functioning of the police service. 
(2)	A direction of the commissioner is of no effect to the extent that it is inconsistent with this Act. 
(3)	Subject to subsection (2), every officer or staff member to whom a direction of the commissioner is addressed is to comply in all respects with the direction.
(4)	A direction issued under subsection (1) to officers about functions, powers or responsibilities that are also functions, powers or responsibilities of watch-house officers is taken to be also issued to watch-house officers. 
(5)	In all proceedings —
(a)	 a document purporting to be certified by the commissioner to be a true copy of a direction under subsection (1) is admissible as evidence of the direction; and 
(b)	a direction under subsection (1) is taken to be effectual until the contrary is proved.
[64]	Moreover, at common law, there is no legal principle that supports Ms Colebourne's contention that a pending challenge to the validity of the Directions somehow disturbed their validity prior to the decision in Johnston being handed down. Rather, a fundamental rule of statutory construction holds that legislatures intend to enact valid legislation, and do not intend to enact invalid legislation.
[65]	In terms of the first question regarding whether a 'reasonable satisfaction' can arise in circumstances where the directions were found to be unlawful, it is useful to refer to a small class of matters involving the exercise of police duties and a 'reasonable suspicion.'
[66]	These matters were summarised by Doyle CJ in Police v Grozev, in his Honour's analysis of the High Court decision in Coleman v Power (emphasis added):
[38]	In Veivers v Roberts [1980] Qd R 226 a police officer arrested a man who was, I gather, protesting against the demolition of certain premises. The police officer arrested the man for the offence of being, without lawful excuse, in an "enclosed yard" under certain Queensland legislation. The Court held that the place in question was not an "enclosed yard" for the purposes of the legislation, and dismissed the charge of the offence in connection with which the man was arrested. There was a further charge of resisting the member of the police force in the execution of his duty. The issue was raised of whether the man could be convicted of resisting arrest on a charge in respect of which he had been acquitted. The power of arrest, under s 546 of the Criminal Code 1899 (Qld), was a power to arrest if the police officer "believes on reasonable grounds that the offence has been committed, and that any person has committed it …".
[39]	In brief reasons DM Campbell J said at 228:
A constable may have reasonable grounds for believing that an offence has been committed although he is under a misapprehension as to the law. In this case the respondent was on private property. He was in an area which was fenced in. He was committing a trespass and the constable had reasonable grounds for believing that he found him offending against s 4(1)(viii)(a) of the Vagrants, Gaming and Other Offences Act.
The other members of the Court agreed.
[40]	A somewhat similar issue arose in Percy v Hall [1997] QB 924. The defendants had been arrested and charged with offences against certain bylaws. The defendants challenged the validity of the bylaws. The charges under the bylaws were dismissed. On appeal, the bylaws were held to be invalid. The plaintiffs then brought actions for wrongful arrest and for false imprisonment against the constables in question. In those proceedings the Court of Appeal, disapproving of the earlier decision on validity, and held that the bylaws were valid. It appears not to have been strictly necessary to decide the further issue, because it arose only if the bylaws were invalid. Nevertheless, the members of the Court of Appeal considered the issue. At 947–948 Simon Brown LJ said:
The central question raised here is whether these constables were acting tortiously in arresting the plaintiffs or whether instead they enjoy at common law a defence of lawful justification. This question, as it seems to me, falls to be answered as at the time of the events complained of. At that time these bylaws were apparently valid; they were in law to be presumed valid; in the public interest, moreover, they needed to be enforced. It seems to me one thing to accept, as readily I do, that a subsequent declaration as to their invalidity operates retrospectively to entitle a person convicted of their breach to have that conviction set aside; quite another to hold that it transforms what, judged at the time, was to be regarded as the lawful discharge of the constables’ duty into what must later be found actionably tortious conduct.
The other members of the Court agreed: see Peter Gibson LJ at 950, Schiemann LJ at 950–952. The reasons of the members of the Court of Appeal emphasise, appropriately enough, the importance of members of society being able to regulate their lives on the assumption that enactments are lawfully made, until they are found to be invalid.
[41]	These decisions were referred to by two of the members of the High Court in Coleman v Power [2004] HCA 39; (2004) 220 CLR 1. Mr Coleman was arrested and charged with certain public order offences. He was also charged with obstructing a police officer and assaulting a police officer in the execution of his duty. He challenged the validity of the legislation creating the public order offences with which he was charged. That challenge failed. However, a majority of the Court set aside certain of the public order convictions basing their decision on the proper interpretation of the legislation.
[42]	Only two members of the Court found it necessary to consider the question of the lawfulness of the arrest.
[43]	McHugh J (dissenting on this point) decided that the law under which Mr Coleman was arrested was invalid. The power of arrest, under s 35(1) of the Police Powers and Responsibilities Act 1997 (Qld) was a power to arrest "a person the police officer reasonably suspects has committed or is committing an offence …". McHugh J referred to the decisions in Veivers and Percy v Hall. Without expressing a view on the decision in Veivers, although he appears to have treated it as correct, he distinguished the decision in Percy v Hall. He referred to an earlier decision of the High Court in Hazelton v Potter (1907) 5 CLR 445 and went on to say at [140]:
Section 35(1) of the Police Powers Act was not identical with the enactment considered in Hazelton. But in my opinion the principle on which that case was decided applies to the present case. Hazelton holds that a person cannot intend to execute a statutory instrument if the instrument does not exist. A fortiori, a person cannot have a reasonable suspicion that an offence has been committed under an enactment that does not exist. It is not reasonable to believe or suspect that a law exists when it does not. Ignorance of the law is ordinarily not an excuse for what is otherwise unlawful conduct. Fictional though it may be, everyone is presumed to know the law.
He added that when a law is invalid because it infringes a constitutional prohibition or immunity, it would be offensive to the Constitution to validate an arrest made under it: at [143]. It is clear that his conclusion was influenced by the fact that the law under which the arrest was made was invalid for constitutional reasons. In those circumstances, the law creating the offence did not "exist".
[44]	Kirby J found that the law was constitutionally valid, but narrower in its reach than the arresting police believed it to be. He also considered the lawfulness of the arrest. He acknowledged the force of the view expressed by McHugh J, but said that that view was not necessarily applicable when constitutional invalidity was not in issue. He said that the arrest was lawful. His conclusion appears from the following passage at [264]:
In the nature of their ordinary functions, police officers cannot wait for action until courts, months, or perhaps years later, have passed upon the legality of their conduct, often performed in fraught and urgent circumstances. They do not enjoy absolute immunity. Under the Police Powers Act they must demonstrate having "reasonable grounds for believing that an offence has been committed". But if this is shown, the fact that it ultimately proves that the police officer is under a misapprehension as to the law, or has based the arrest "on an erroneous view of the law", do not deprive that officer of the protection afforded by a provision such as s 35(1) of the Police Powers Act. (footnotes omitted)
	In the omitted footnotes he refers to Veivers.
[45]	Both McHugh J and Kirby J appear to have accepted the decision in Veivers as correct in principle, although not applicable, or arguably not applicable, when the law creating the offence for which the arrest is made is constitutionally invalid.
[46]	In Ruddock v Taylor [2005] HCA 48 ; (2005) 79 ALJR 1534 the High Court had to consider s 189(1) of the Migration Act 1958 (Cth) which provided:
If an officer knows or reasonably suspects that a person in the migration zone is an unlawful non-citizen, the officer must detain the person.
On two occasions Mr Taylor’s visa, on the basis of which he was permitted to remain in Australia, was cancelled by the Minister. After each cancellation Mr Taylor was detained in immigration detention. Each of the decisions cancelling his visa was quashed by an order of the High Court. Mr Taylor made a claim for damages for false imprisonment in respect of each period of detention. The Court held that the detention was not unlawful. The Court’s reasoning was that the lawfulness of Mr Taylor’s detention turned on s 189(1), and had to be separately considered from, and raised issues separate from, the unlawfulness of the exercise by the Minister of the power to cancel the visa. The majority (Gleeson CJ, Gummow, Hayne and Heydon JJ) rejected a submission that the belief in question could not be considered reasonable if it was based on a mistake of law, the mistake of law being that Mr Taylor was an unlawful non-citizen. Callinan J took the same approach: at [228]–[229].
[47]	The majority made the point at [39] that the issue was the construction of the word "reasonably" in particular, and that there was no constitutional reason to read the section as excluding a mistake of law. They said that there was nothing in the words of the Act itself that warranted the drawing of such a distinction: at [42]. They went on to say at [45]:
The second reason to reject the contention is that there would be many cases under s 189 in which a distinction between mistake of law and mistake of fact could not readily be drawn, if drawn at all. Reference to cases like Collector of Customs v Agfa-Gevaert Ltd provides ready illustration of the difficulties. Especially is that task difficult where, as here, the subject matter of the relevant suspicion is a statutory status — being an unlawful non-citizen. Errors about the conclusion cannot safely be divided between errors of law and errors of fact. Often, perhaps much more often than not, the error will be one of mixed law and fact. (footnote omitted)
They added at [46] that to draw such a distinction would cause "great uncertainty" about the extent of the obligation to detain a person.
[48]	This amounts to a significant body of authority… However, as the High Court rightly emphasised in Ruddock v Taylor, the ultimate question is one of construction of the starting statutory provision.
[67]	In considering the construction of s 91 of the Public Sector Act, there is no reason to assume as a starting point that a reasonable satisfaction that an employee has contravened a direction given to the employee could not be based on or include a belief based on a mistake of law.
[68]	That is, regardless of whether the Directions are lawful or of effect, the decision to discipline employees under the Public Sector Act 2022 remains lawful.
[69]	The position taken by McHugh CJ in Coleman v Power does not apply in this case. Martin SJA's decision at [462]-[467] in endorsing Wingfoot determines that while the Directions have been declared as unlawful, that is distinct from them being a nullity. The Directions, although fatally infected, did exist, and the chief executive was reasonably satisfied they were breached. 
[70]	Even if relying on those Directions was to be considered unjust given that they were fatally infected, the conduct of applicants in refusing vaccination would still fall afoul of contravening a relevant standard of conduct under s 91(1)(h) of the Public Sector Act. 
[71]	Relevantly, cl 1.5 of the Queensland Public Service Code of Conduct provides that staff have a responsibility to ensure "the safety, health and welfare of ourselves and others in the workplace, whether co-workers or clients." It was fair and reasonable for the employer to determine that failing to comply risked the health and safety of others and formed a valid reason for the employees' dismissal. This consideration formed part of the show cause process and the termination decision.
[72]	For these reasons I find the declaration of QPS Directions 12 and 14 in Johnston as unlawful does not of itself alter Ms Colebourne’s prospects of success in the present matter.
[73]	This brings me to the substantive objections of Ms Colebourne to receiving the vaccine pursuant to the Directions that ultimately led to the decision to terminate her employment.  In doing so I am mindful that I am assessing prospects in the context of determining whether a grant of additional time should be ordered. 
[74]	In Herwin v Flexihire Pty Ltd, McKenzie P noted that:
I should reinforce that descent into detail and fine distinctions in relation to the evidence is not appropriate upon the hearing of an application for leave to apply out of time but if it is clear that the matter must fail as a matter of principle on the best view of the facts from the applicant's point of view, the futility of the proceedings is a fact which may be taken into account.
[75]	It is not contested that Ms Colebourne did not receive any Covid-19 vaccine injection during the period from the issuing of Direction 12 on 7 September 2021 and the cessation of Direction 14 on 22 December 2022, or at any stage. While an exemption was sought but not granted in relation to Direction 12 no exemption was sought or granted in relation to Direction 14. The public service appeal by Ms Colebourne of the exemption decision in relation to Direction 12 was dismissed (in that the decision appealed against was confirmed) by way of written decision on 28 January 2022.
[76]	Following a show cause process on disciplinary findings a decision on finding was issued on 4 July 2023 combined with a show cause notice on proposed disciplinary action of termination. No public sector appeal on disciplinary finding was lodged, despite advice that this appeal right existed. A response to the disciplinary action show cause was provided on 25 July 2023 with the decision on disciplinary action in the form of termination being provided to Ms Colebourne on 7 August 2023. 
[77]	A separate process regarding suspension with and without remuneration occurred and was tested in the Commission with a decision to dismiss issued 28 January 2022.
[78]	The reasons provided by Ms Colebourne throughout the disciplinary process for her failure to comply with the requirement to be vaccinated can be summarised as follows:
•	It was not made clear why the Directions applied to her in her specific role and she did not agree that they did;
•	She should not have been required to comply when she was challenging the rejection of her exemption request;
•	Insufficient information on the safety and efficacy of the vaccines;
•	She could not give free consent when she was not provided with the information she required and this breached her human rights;
•	She was not consulted as required by the award and health and safety legislation;
•	The nature of the vaccines meant it was an irreversible medical procedure;
•	Vaccines were only provisionally approved and a requirement to be vaccinated in those circumstances was tantamount to a clinical trial;
•	She was suffering from anxiety, a psychological impairment and could not freely give consent;
•	Adverse consequences from vaccines in her own circle and in evolving research studies;
•	Other options to the vaccine were available such as working from home;
•	Religious convictions meant she must obey her husband who objected to vaccines and ordered her not to be vaccinated.
•	Disproportionate and unfair treatment compared to other offences and non-vaccinated people being allowed to return to the workplace. 
•	The process should have ceased when Direction 14 was lifted on 22 December 2022.
•	The process should have been stayed pending the outcome in the Supreme Court.
•	Suspension was punishment enough.
[79]	As indicated by QPS in submissions, and advised by the Union at the point of dismissal, many of these arguments are not unique and have been considered and dismissed by the Commission as inadequate reasons to justify misconduct. Many of these matters relate to the decision on finding, which was not appealed, and are not relevant to the decision to terminate that was ultimately made.
[80]	The argument about suspension conflates the decision to suspend arising as a result of being unvaccinated and the decision on disciplinary action arising from the finding that Ms Colebourne had breached a direction without reasonable excuse. Reference may be had to Dwyer IC's discussion of 'conflation of consequences' in Stacey v State of Queensland (Department of Education), where it was stated: 
[46]	The other misconception afflicting Mr Stacey is that he conflates the consequences of his decision not to get vaccinated with the consequences now being imposed on him by the Department for his proven misconduct.
…
[50]	By contrast, the penalty imposed by the decision is not a penalty for being unvaccinated. That fact is merely part of the particulars of the misconduct giving rise to the penalty. The penalty is imposed because Mr Stacey failed to comply with a lawful and reasonable direction.
[81]	In relation to Ms Colebourne's submission regarding differential treatment between herself and other employees who were allowed to return to work without being vaccinated, the starting point is that 'it is settled that the differential treatment of comparable cases can be a relevant matter…in determining whether a termination has been harsh, unjust or unreasonable.' However, as VP Lawler explained in Sexton v Pacific National (ACT) Pty Ltd:
[36]	In my opinion the Commission should approach with caution claims of differential treatment in other cases advanced as a basis for supporting a finding that a termination was harsh, unjust or unreasonable within the meaning of s.170CE(1) or in determining whether there has been a "fair go all round"…the Commission must ensure that it is comparing "apples with apples." There must be sufficient evidence of the circumstances of the allegedly comparable cases to enable a proper comparison to be made.
[82]	This reasoning was adopted by VP O'Connor in Alfred v State of Queensland (Department of Justice and Attorney General), where His Honour relevantly quoted the following from Cherti v Queensland Rail: 
[30]	Vice President Lawler and Senior Deputy President Kaufman acknowledged that, whilst differential treatment of comparable cases can be a relevant matter, a degree of caution needs to be exercised to ensure that the case examples are truly comparable and that sufficient evidence is placed before the tribunal hearing the matter in order for it to make a proper assessment.
[83]	While some examples were provided in relation to alleged 'worse offences' (e.g. corrupt conduct) occurring with lesser punishment that are completely irrelevant to the current matter, there was no evidence supplied to verify there were police employees in the same circumstances as Ms Colebourne at the time of her dismissal for whom commensurate outcomes were not provided. 
[84]	I find that there are no particular or novel arguments raised in this case that would lead to improved prospects of success. There is nothing unique in the issues raised by Ms Colebourne not already dispatched by the Commission in various matters.
Conclusion
[85]	Ms Colebourne bears the onus of providing a basis upon which I may properly exercise my discretion to extend time in which she may bring this out of time unfair dismissal application.  She has failed to discharge that onus.
[86]	I order accordingly.
Orders
1.	The application for an extension of time is refused.
2.	The application for reinstatement in matter TD/2024/27 is dismissed.