QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Kazuva v State of Queensland (Queensland Health) [2022] QIRC 147
	
PARTIES:	
	Kazuva, Mthethomuhle
(Appellant)

v

State of Queensland (Queensland Health)
(Respondent)
	
CASE NO.:
	PSA/2022/234
	
PROCEEDING:
	Public Service Appeal – Fair Treatment Decision
	
DELIVERED ON:
	26 April 2022	
MEMBER:

HEARD AT:	Power IC

On the papers
	
ORDER: 	The appeal is dismissed for want of jurisdiction.
	
CATCHWORDS:
	PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – Public Service Appeal – appeal of internal review decision regarding COVID-19 exemption application – appeal lodged out of time – whether extension of time should be granted – extension of time not granted
	
LEGISLATION:	Hospital and Health Boards Act 2011 (Qld), s 51A

Industrial Relations Act 2016 (Qld), s 564

Public Service Act 2008 (Qld), s 194
	
CASES:	A1 Rubber (Aust) Pty Ltd v Chapman (Office of Industrial Relations) [2019] ICQ 16

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

Bruce Anthony Piggott v State of Queensland [2010] ICQ 35

Chapman v State of Queensland [2003] QCA 172

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

Reasons for Decision

Introduction

[1]	Mrs Mthethomuhle Kazuva ('the Appellant') is employed by the State of Queensland (Queensland Health) ('the Respondent') as a casual Radiographer at BreastScreen Queensland – Ipswich Service within West Moreton Health ('WMH').

[2]	On 11 September 2021, pursuant to s 51A of the Hospital and Health Boards Act 2011 (Qld) ('HHB Act'), the Chief Executive of the Respondent issued the Health Employment Directive 12/21 regarding employee COVID-19 vaccination requirements ('the Directive'). The Directive requires all health service employees and prospective employees employed under the HHB Act to have received at least the first dose of a COVID-19 vaccine by 30 September 2021 and have received the second dose of a COVID-19 vaccine by 31 October 2021.

[3]	Clause 10.2 of the Directive provides that an exemption application will be considered where the employee has a recognised medical contraindication, the employee has a genuinely held religious belief or where another exceptional circumstance exists.

[4]	On 18 October 2021, the Appellant applied for an exemption to the mandatory vaccine requirements under the Directive based on religious grounds (the 'exemption application'). By letter dated 8 December 2021, Ms Claire Barratt, Acting Chief Strategy Officer, WMH, advised that the Appellant's exemption application had been refused. The Appellant was directed to comply with the Directive by receiving the required dose of a COVID-19 vaccine and provide confirmation of compliance within seven days from receipt of the letter.

[5]	On 22 December 2021, the Appellant requested for an internal review of the decision to refuse the Appellant's exemption application and by letter dated 14 January 2022, Ms Wendy Richards, Acting Senior Director, Recruitment and Capability, Human Resources Branch, confirmed the decision of Ms Barratt in refusing the Appellant's exemption application.

[6]	By appeal notice filed on 10 February 2022, the Appellant appeals the internal review decision of Ms Richards pursuant to s 194(1)(eb) of the Public Service Act 2008 (Qld). 

Grounds of appeal

[7]	In the appeal notice, the Appellant outlined the following reasons for appeal:

I'm seeking external review for my application for religious exemption for COVID 19 vaccine mandate. I'm not satisfied with the internal review decision. I would like the decision made by West Moreton Hospital services to decline my request for an exemption to the vaccination requirements set out in the health employment directive NO. 12/21 – Employee covid 19 vaccination requirements (the directive) HR policy 870 Employee covid 19 requirements (the policy) to be reviewed. The reasons I'm not satisfied with the decisions is that according to HR policy I am allowed to be exempted under religious beliefs. I have provided relevant supporting documents stating the Covid vaccine is not acceptable in my religion, one of the reasons is the use of aborted fetal cells as one of the many. I have met the requirements you outlined to be eligible for this exemption. Going ahead with your request for me to take this vaccine, will mean apostasy to my religion. Losing my religion will impart me detrimentally and cause me to question my reason to continue living.

Appellant's Submissions

[8]	The Appellant, in her submissions, requests to be provided with an exemption from the COVID-19 vaccine based on religious grounds. The Appellant submits the following:

I don't understand why my genuinely held religious beliefs are not being considered? I struggle to understand why it seems like my religious grounds are trying to be overridden, even after meeting the requirements of submitting a religious exemption application which is outlined as one of the exemption options according to the health employment directive 12/21, clause 10.1 to 10.3. There was no explanation as to why the exemption was not granted when others in the government have had similar exemption granted.

[9]	The Appellant highlights her concerns regarding the use of foetal cells being used in either the testing or development and production of COVID-19 vaccines and that the cells are 'grown in a laboratory and were derived from a few elective abortions performed more than three decades ago'. The Appellant submits that she is firmly against abortions.

[10]	The Appellant refers to several bible scriptures and submits the following:

…

The above scriptures show that the relationship between God and men started way before the person was in the womb and God already had plans for that person. When one chooses to abort that baby, it is 100% against our belief and we cannot support the use of those aborted fetal cells in the production or testing of vaccines.

The other point to raise is that the bible already warned us about things that will also happen at the end of times which is very consistent with the way people are now being caused to take the vaccine or you lose your Job and can't go to the restaurants, cannot travel etc.

…

The Bible has already warned us of something that will be injected into our body, which is known as the mark of the beast. One of its characteristics is that if you don't comply you will be prohibited from working, buying, selling, and basically discriminated from the society. As a Christian I use the Bible as a reference to guide me on my daily conduct. And as a Christian I must stay away from things that share these similar characteristics. Now these covid 19 vaccines have prevented people from working, attending restaurants (buying and selling) and more.

They share similar characteristics to what the Bible has warned us to stay away from. Therefore, as a Christian I must comply with the Bible and decline these covid vaccines to keep my faith.

…

The Bible was translated from Hebrew and Greek. The Greek word for sorceries is Pharmakeia which means pharmacy and the use of specific administered medical treatments with the characteristics mentioned above. To be deceived means one has to believe that what they have been told is true only to find out later that it was not accurate information later and it will be too late to reverse the impact of this. So biblically, there is a great deception that the bible already warned us of through the pharmaceutical industry so when we see all that is happening, there is obviously great concern which has serious spiritual implications for our faith. 
 
Because these current Covid vaccines have certain characteristics that the Bible warns about, deception taking place via their use will come through pharmakeia. Therefore, as a Bible-believing Christian taking these currently available covid vaccines is against my Religion. The choice I am being made to take these (sic) vaccine by Queensland Health can result in my eternal damnation as my Christian faith has warned.

…

This Bible verse above, shows us Christians that our bodies belong to God. Therefore, I must be careful and be in alignment with the Word of God in whatever I do to my body. I am not allowed to make any decisions that go against God and His Word. As you can see in the verses given above, I have been given a warning on things that I should not allow in my body.

…

[11]	The Appellant emphasises that she is not opposed to vaccines and has received vaccines in the past, however states that her religious beliefs prohibits the Appellant from taking COVID-19 vaccines. The Appellant highlights that there are new vaccines being developed which the Appellant does not have issues with and will be considered at the end of the Appellant's current temporary six months medical exemption.

[12]	The Appellant submits that she has been disadvantaged and treated unfairly in this process because she has complied with the Directive. In support of her submissions, the Appellant attaches a list of articles regarding the use of foetal calls and COVID-19 vaccines as well as a letter from her Pastor, Mr John Shumba, Christ Embassy Brisbane, in support of the Appellant's exemption application and objections to receiving a COVID-19 vaccine.

Respondent's Submissions

[13]	At the outset, the Respondent raises a jurisdictional objection with respect to the appeal being filed out of time, submitting the following:

Ms Kazuva received Ms Richards' decision on 14 January 2022. Accordingly, the Appeal was due to be filed by 4 February 2022. The Appeal is therefore six days outside of the 21-day limitation period. Ms Richards expressly told Ms Kazuva she was required to file any appeal within 21 days. Ms Kazuva has not provided any explanation for her failure to file the Appeal within the statutory time limit. The importance of the application of statutory time limits has been consistently recognised.

Ms Kazuva is appealing a decision to confirm the refusal of her application for an exemption from COVID-19 vaccination, a process which commenced on 30 September 2021 when she submitted her application. In the context of a 21 day limitation period, the delay by Ms Kazuva is significant. 

[14]	The Respondent outlined the documents that was submitted by the Appellant in support of her exemption application: 

On 18 October 2021, Ms Kazuva emailed WMH advising she wished to apply for an exemption to the mandatory vaccine requirements on religious grounds... Ms Kazuva advised she was a Pentecostal/Born again Christian and that as the COVID-19 vaccine did not align with her religious beliefs, she would not be getting vaccinated. Ms Kazuva also provided the following documentation in support of her request:

a) 	an undated document from Christ Embassy Brisbane Church (also known as LoveWorld) setting out the Christ Embassy Brisbane's position in relation to vaccination. Christ Embassy Brisbane opposes compulsory vaccination mandates. The document advised Christ Embassy Brisbane is not pro-vaccine or anti-vaccine. The document also expressed concern about the safety and efficacy of the vaccinations; and

b) 	an undated letter from Mr John Shumba, Pastor, Christ Embassy Brisbane, advising Ms Kazuva was an active member of Christ Embassy Brisbane. Mr Shumba advised he strongly supported Ms Kazuva's case for an exemption to the vaccination mandate.

[15]	The Respondent made extensive submissions regarding the decision to confirm the refusal of the Appellant's exemption application being fair and reasonable. The Respondent submits, in summary, that:

(a)	the Appellant does not complain there has been a failure to consider her religious beliefs and is clear that the Appellant's true complaint is not that her religious beliefs have not been recognised, but that they have not been given the degree of recognition that she thinks they deserve;

(b)	the Appellant's belief that she is entitled to receive an exemption on the grounds of her genuinely held religious beliefs is not correct. The Respondent is not obliged to accept that her genuinely held religious beliefs outweigh the importance of the purpose of the Directive;

(c)	the Appellant fails to accept the importance of competing considerations of workplace and community safety and how they could take precedence over her religious beliefs;

(d)	Ms Richards properly considered the Appellant's exemption request by weighing the Appellant's religious beliefs against the objects and requirements of the Directive, noting the high level of risk to the health and wellbeing of patients, colleagues and other persons who access services from BreastScreen Queensland and WMH;

(e)	importantly, Ms Richards determined there was no other less restrictive yet effective way to ensure the readiness of the health system in responding to the COVID-19 pandemic to protect the lives of employees, patients, and the public;

(f)	the document from Christ Embassy Brisbane submitted by the Appellant with the exemption application states that Christ Embassy Brisbane is neither 'pro- or anti- the vaccine' and that it is a matter of whether the government can authorise civil conscription. The Respondent submits that it would appear that Christ Embassy Brisbane's position is one of conscientious objection;

(g)	exemptions, including exemptions on the basis of a genuinely held religious belief to the vaccine, or any other circumstance, are considered in accordance with the Respondent's obligations and have only been approved in exceptional circumstances;

(h)	the Appellant's human rights were taken into account and Ms Richards determined any limitation to the Appellant's human rights was reasonably justified; and

(i)	it was reasonably open to Ms Richards to determine the Appellant's submissions regarding her religious belief did not justify the approval of an exemption. Ms Richards did not dispute that the Appellant genuinely held the beliefs she expressed. However, it is not incumbent on the Respondent or WMH to accept the Appellant's personal religious beliefs outweighed the other factors to be considered by the Respondent and WMH, including the public health risk of COVID-19.

Consideration

[16]	This appeal arises following an internal review decision by Ms Richards confirming the decision of Ms Barratt to deny the Appellant's exemption application. I note that the Appellant attached to the appeal notice a letter confirming the decision to reject her application for an exemption along with a letter confirming a disciplinary finding and requesting the Appellant show cause on a disciplinary penalty. I have had regard to the appeal notice in which the Appellant confirms that it is the decision regarding the exemption application that is the subject of this appeal. 

[17]	The jurisdictional issue must first be considered to determine whether discretion is exercised to extend the timeframe in which the appeal may be filed pursuant to s 564 of the Industrial Relations Act 2016 (Qld) ('the IR Act'). 

[18]	Section 564 of the IR Act provides for the time limit for appeal:

564	Time limit for appeal

(1)	An appeal against a decision to an industrial tribunal must be started, as required under the rules, within the appeal period.

(2)	However, on an application made during or after the appeal period, the industrial tribunal may allow an appeal to be started within a longer period.

(3)	In this section—
appeal period, for an appeal against a decision to an industrial tribunal, means the period within 21 days after—
(a)	if the decision is given at a hearing—the announcement of the decision at the hearing; or
(b)	if the decision is given through the registrar—the release of the decision; or
(c)	if the decision is a promotion decision—the decision is publicly notified under the Public Service Act 2008; or
(d)	if, under another Act, the decision is given in another way—the decision is given in the other way.

[19]	The Appellant bears the onus of establishing that the justice of the case requires an extension of time. The statutory provision was considered in A1 Rubber (Aust) Pty Ltd v Chapman (Office of Industrial Relations) ('AI Rubber'), which stated:

On an application to extend time, the approach of this Court was described by President Hall in the Neophytos Foundadjis v Collin Bailey [2007] ICQ 10 in the following way:

"This Court has traditionally adhered to the view that s. 346 of the Industrial Relations Act 1999 represents a legislative assessment that in the ordinary category of cases, justice will best be served by adhering to a 21 day limitation period, though on occasion the limitation may defeat a perfectly good case and that the discretion to extend time should be exercised only where the applicant for an extension of time discharges a positive burden of demonstrating that the justice of the case requires the indulgence of a further period."

[20]	The matters to be considered when exercising the discretion were outlined in A1 Rubber, where President Martin J stated:

In order to be successful, an applicant must ordinarily discharge the burden in three ways: first, the applicant must demonstrate that the justice of the case requires the indulgence sought; secondly, the applicant must demonstrate that the case sought to be appealed has prospects of success; thirdly, there must be an explanation of the delay between the expiry of the time period and the time at which the application was filed…

Explanation for delay

[21]	The internal review decision of the Appellant's exemption application was on 14 January 2022. The Respondent submits that the Appellant received the internal review decision on the same day, being 14 January 2022. The appeal was therefore filed six days beyond the 21-day time limitation period.

[22]	The Appellant did not indicate that she was applying for an extension of time to lodge the appeal in the appeal notice nor did the Appellant provide submissions seeking to lodge the appeal beyond the 21-day statutory time period.

[23]	The Appellant did not provide an explanation for the delay in filing the appeal in her written submissions. The Respondent raised the jurisdictional objection in their written submissions filed prior to those of the Appellant. It is likely that the Appellant was therefore aware of the objection, however failed to request an extension of time or provide an explanation for the delay. Nevertheless, parties were provided with a further opportunity to make oral submissions or provide further written submissions pursuant to the directions order issued to parties. The Appellant did not seek to do so.

[24]	The parliament has legislated a 21-day time period for an appeal to be filed and the existence of compelling reasons for any delay are required to extend this timeframe. Such reasons are not evident in this matter. 

Prospects of success

[25]	A consideration of the Appellant's prospects of success is necessary in determining whether an extension of time should be granted. 

[26]	The Queensland Court of Appeal considered this point in Chapman v State of Queensland, stating:

…In determining whether it is proper to grant the extension, it is appropriate to consider the merits of the substantive application… An extension of time will not be granted if the court considers the appeal to be plainly hopeless…

[27]	The 21-day time limit should not easily be dispensed with, and where it appears that the Appellant has no, or very limited, prospects of success, the Commission would not normally grant an extension of time. Having considered the material before me, I am not of the view that this appeal has good prospects of success for the reasons outlined below. 

[28]	The Appellant is appealing a decision to confirm the refusal of her application for an exemption from the Directive. The basis upon which the exemption was sought was 'genuine religious belief', with the Appellant providing a letter in support of her application from Mr Shumba and a document from Christ Embassy Brisbane Church (also known as LoveWorld) setting out the Christ Embassy Brisbane's position in relation to vaccination. 

[29]	The Appellant requested an internal review of the decision to refuse her exemption application providing further submissions relating to her religious beliefs along with additional submissions relating to the Respondent's work health and safety obligations and consultation. The internal review decision addressed the new matters raised regarding work health and safety obligations, which I note are not grounds for exemption, and demonstrated consideration of the Appellant's submissions before providing the following decision:

On review of the requirements under HED 12/21 and the actions taken as outlined above, I consider that the decision made by Ms Barret was fair and reasonable in the circumstances and I confirm that decision. I have formed this view by considering the actions taken by the delegate namely:

•	Consideration of your application for exemption and the material that you provided against the requirements of the HED 12/21 and HR Policy B70 and the requirements of the role in which you are employed in with WMHHS.
•	Referral of your request for review to the West Moreton COVID-19 Mandatory Vaccination Exemption Panel who reviewed you application, undertook an assessment of the requirement for you to be vaccinated against COVID-19 to undertake your role in WMHHS and provide a recommendation to the delegate.
•	Written advice of the decision of the delegate, including appropriate reasons for their decision. 

Your request for exemption for COVID-19 vaccine was correctly declined in the circumstances and your role continues to require you to be vaccinated against COVID-19 with a Therapeutic Goods Administration endorsed vaccine when you work in a hospital or facility which provides clinical care. 

[30]	The decision maker demonstrated consideration of the Appellant's human rights, determining that any limitations to the Appellant's human rights were reasonably justified have regard to the significant risk to the health and safety of healthcare workers, support staff, their families and the patients under their care. The decision notes that the refusal to grant an exemption decision does not itself compel a person to be vaccinated, but it does impose employment consequences upon people who are not vaccinated unless certain extenuating circumstances apply. 

[31]	In the appeal notice, the Appellant states:

The reasons I'm not satisfied with the decisions is that according to HR policy I am allowed to be exempted under religious beliefs.

[32]	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. 

[33]	The decision maker demonstrated consideration of the Appellant's human rights, determining that any limitations to the Appellant's human rights were reasonably justified have regard to the significant risk to the health and safety of healthcare workers, support staff, their families and the patients under their care. 

[34]	In consideration of the above, I consider that the appeal has very limited prospects of success. 

Justice of the case

[35]	The prejudice to the Respondent of allowing the appeal is that it will not be able to rely upon the statutory time limit, despite clearly advising the Appellant of her appeal rights and the timeframe within which an appeal should be filed in the decision:

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. 

[36]	The consequence of not extending the time period for the Appellant is that the appeal will not be determined. The prejudice to the Appellant will be that the appeal against the internal review decision will not be subject to independent consideration, however, as noted above, I consider the prospects of success in this matter to be limited. 

Conclusion 

[37]	In consideration of the above factors, I do not consider that there is a reasonable ground to extend the time for filing this appeal and have determined not to exercise my discretion pursuant to s 564(2) of the IR Act. 
 
Order 

[38]	I make the following order:

The appeal is dismissed for want of jurisdiction.