QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Huntington-Tildsley v State of Queensland (Queensland Health) [2023] QIRC 063	
		
PARTIES:	
	Huntington-Tildsley, Samantha
(Appellant)

v

State of Queensland (Queensland Health)
(Respondent)
	
CASE NO.:
	PSA/2022/519
	
PROCEEDING:
	Public Service Appeal – Disciplinary Decision
	
DELIVERED ON:
	28 February 2023	
MEMBER:

HEARD AT:	Power IC

On the papers
	
ORDER: 	Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed.
	
CATCHWORDS:	PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – Public Service Appeal – where respondent alleges that appellant did not comply with Health Employment Directive No 12/21 Employee COVID-19 vaccination requirements – where allegation substantiated - consideration of penalty – where appellant issued with reprimand – where appellant appeals decision to issue reprimand – where decision appealed against confirmed.
	
LEGISLATION:	Hospital and Health Boards Act 2011 (Qld), s 51A

Industrial Relations Act 2016 (Qld), ss 562B and 562C

Public Service Act 2008 (Qld), ss 187, 188 and 194
	
CASES:	Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245

Gilmour v Waddell & Ors [2019] QSC 170

Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018)

Huntington v State of Queensland (Queensland Health) [2022] QIRC 290	

Reasons for Decision

Introduction

[1]	Ms Samantha Huntington-Tildsley ('the Appellant') is employed by the State of Queensland (Queensland Health) ('the Respondent') as an Assistant in Nursing, Maternity Ward at the Logan Hospital.

[2]	By letter dated 31 March 2022, Mr Adam Lavis, on behalf of Mr Dave Waters (Mr Waters), Director Human Resources, Princess Alexandra Hospital, Metro South Health informed the Appellant of the decision to impose a disciplinary action of a reprimand, pursuant to s 188 of the Public Service Act 2008 (Qld) ('the PS Act').

[3]	By appeal notice filed on 21 April 2022, the Appellant appealed against the disciplinary penalty decision, pursuant to s 194(1)(b)(i) of the PS Act.

Background 

[4]	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').

[5]	Clause 1 of the Directive provides that compliance with the Directive is mandatory. Clause 4 of the Directive provides that the Directive applies to all health service employees and prospective employees employed under the HHB Act.

[6]	Clause 8.1 of the Directive provides:

8.1 	Existing employees currently undertaking work or moving into 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. 

• 	An existing employee must maintain vaccine protection. Therefore, an existing employee is required to receive the prescribed subsequent dose/s of a COVID-19 vaccination (i.e. booster), as may be approved by the Australian Technical Advisory Group on Immunisation (ATAGI), within any recommended timeframe following the second dose. Evidence of vaccination, confirming the employee has received prescribed subsequent dose/s of the vaccine, is to be provided to their line manager or other designated person within 7 days of receiving the vaccine. 

• 	An existing employee who is required to have received a first or second dose of a COVID-19 dose at an earlier date under a Chief Health Officer public health direction must be vaccinated by the dates specified in the public health direction. 

• 	The requirements of this clause 8 do not apply to existing employees who have been granted an exemption under clause 10 of this HED.

[7]	Clause 10.2 of the Directive provides 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.

[8]	On 29 September 2021, the Appellant sent a letter to Logan Hospital expressing concerns with respect to consultation and risk assessment regarding COVID-19 vaccination.

[9]	The Appellant subsequently submitted two exemption applications to the mandatory vaccination requirements of the Directive identifying 'other exceptional circumstances' on 30 September 2021 and 1 October 2021. The applications submitted that the requirement for consultation and risk assessment had not been met, that the process is inconsistent with her human rights and the Appellant does not have the information necessary to provide full, free and informed consent.

[10]	On 4 November 2021, the Appellant was advised that her exemption applications were refused. The Appellant sought an internal review of the refusal which was subsequently confirmed by the Respondent on 20 December 2021.

[11]	On 21 February 2022, the Appellant advised the Respondent that she had received her first dose of the COVID-19 vaccine AstraZeneca on 14 February 2022 and on the same day, the Respondent requested that the Appellant provide her vaccine certificate as evidence of receiving the COVID-19 vaccine.

[12]	On 25 February 2022, a show cause letter was issued to the Appellant, wherein the Appellant was requested to show cause inter alia to the following allegation:

In contravention of a direction given to you by a responsible person, you have not provided to your line manager or uploaded into the designated system evidence of vaccination confirming that you have received the prescribed number of doses of a COVID-19 vaccine or have received the first dose of a COVID-19 vaccine and are on an evidenced pathway to full compliance with the Directive.

[13]	On 9 March 2022, the Appellant provided a response to the show cause letter dated 25 February 2022.

[14]	On 16 March 2022, the Appellant was issued with a disciplinary finding decision, substantiating the allegation on the basis that the Appellant had contravened, without reasonable excuse, a direction given to her as a public service employee by a responsible person, pursuant to s 187(1)(d) of the PS Act. The Appellant was informed that serious consideration was being given to the termination of her employment. The Appellant was provided with seven calendar days to provide a response as to why the disciplinary action should not be taken.

[15]	On 22 March 2022, the Appellant provided a response to the proposed disciplinary action and on 25 March 2022, the Appellant advised that she had received her second dose of a COVID-19 vaccine and provided the Respondent her COVID-19 digital certificate confirming that she had received two doses of a COVID-19 vaccine.

[16]	On 31 March 2022, the Appellant was issued with a disciplinary action decision where the Respondent determined to impose a disciplinary action of a reprimand.

Appeal principles

[17]	The appeal must be decided by reviewing the decision appealed against. Because the word 'review' has no settled meaning, it must take its meaning from the context in which it appears. An appeal under ch 11 pt 6 div 4 of the Industrial Relations Act 2016 (Qld) ('the IR Act') is not by way of rehearing, but involves a review of the decision arrived at and the decision making process associated therewith.

[18]	The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable. The issue for determination is whether the decision to impose the disciplinary action of a reprimand was fair and reasonable. Findings which are reasonably open to the decision maker are not expected to be disturbed on appeal.

What decisions can the Industrial Commissioner make?

[19]	In deciding this appeal, s 562C of the IR Act provides that the Industrial Commissioner may:

(a)	confirm the decision appealed against; or

(b)	set the decision aside and substitute another decision; or

(c)	set the decision aside and return the issue to the decision maker with a copy of the decision on appeal and any directions considered appropriate.

Grounds of Appeal

[20]	In the appeal notice, the Appellant appeals the decision on the basis that the decision to issue a reprimand is not fair and reasonable in all of the circumstances, contending that:

(a)	the Respondent has erred in its decision to issue a reprimand as the Appellant should have been entitled to reasonable consultation and provided with her choice of vaccine;

(b)	it was not the Appellant's fault for the time taken to organise an appointment with her medical practitioner or that the Appellant's preferred vaccine was not yet available;

(c)	the decision to issue a reprimand is disproportionate to the conduct and harsh in all the circumstances;

(d)	Logan Hospital has on record that the Appellant has always intended to comply with the vaccine mandate, that the Appellant was ready and willing to perform her duties and that she was only acting in the interest of her own health and well-being; and

(e)	the disciplinary action could affect the Appellant's future employment.

Appellant's submissions

[21]	The Appellant submits, in summary, that:

(a)	prior to being issued the first show cause notice on 25 February 2022, the Appellant had already received her first dose of a COVID-19 vaccination and had provided evidence of such on 21 February 2022; and

(b)	the Appellant is not vaccine hesitant, rather, was waiting for her preferred choice of vaccine, being the Novavax vaccine which was TGA approved but not readily available at the time when the vaccine mandates were implemented.

[22]	The Appellant highlights that no reprimand was given to another colleague who only received one dose of a COVID-19 vaccine and feels that she is being punished for her delay in the decision to be vaccinated.

[23]	The Appellant further outlines that she has taken full responsibility for her actions regarding the length of time to receive the COVID-19 vaccines.

Respondent's submissions

[24]	The Respondent submits that the decision to impose the disciplinary action of a reprimand was fair and reasonable. In support, the Respondent submits, in summary, that:

(a)	the Appellant only became fully vaccinated on 25 March 2022, approximately five months after the obligation imposed in the Directive;

(b)	the delay in the Appellant complying with her obligation to become vaccinated and providing evidence of vaccination in accordance with the Directive is significant and was without reasonable excuse;

(c)	whilst the Appellant advised that she intended to become vaccinated and the delay was attributed to her consideration of receiving the Novavax vaccine, she did not provide any evidence of having been fully vaccinated until 25 March 2022, some nine days after disciplinary findings had been made against her;

(d)	the Appellant attempts to justify the delay to be vaccinated against COVID-19 because she had been considering a vaccine that was safe for her to receive;

(e)	the Appellant provided no evidence she had a recognised medical contraindication to receiving a COVID-19 vaccine that would have attributed to her delay in complying with the Directive;

(f)	the Appellant did not apply for an exemption from the Directive on the basis of a medical contraindication nor did she provide any evidence of a medical condition which meant she was unable to be safely administered the current vaccines;

(g)	it is evident from the correspondence submitted by the Appellant during the exemption process and her responses during the discipline process that she was vaccine hesitant, which is not an exceptional circumstance;

(h)	the Appellant did not propose any alternative potential disciplinary action she considered to be appropriate as an alternative to termination of her employment;

(i)	Mr Waters determined a reprimand was an appropriate disciplinary action in circumstances where the Appellant's non-compliance occurred for a significant period of time;

(j)	Mr Waters considered the Appellant's human rights may be impacted or potentially limited by taking disciplinary action against her, however, was of the view his decision was demonstrably justified because he considered it was in the public interest during a global pandemic 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 current pandemic; and

(k)	the decision to issue the Appellant a reprimand was procedurally fair as the Appellant was provided an opportunity to respond to the first and second show cause notices before any decision on disciplinary action was taken, and she took advantage of the opportunity.

Consideration

[25]	Consideration of an appeal of this kind requires a review of the decision to impose disciplinary action pursuant to s 188(1) of the PS Act to determine if the decision was fair and reasonable in the circumstances. This follows a decision by the Respondent that grounds exist for the Appellant to be disciplined pursuant to s 187(1)(d) of the PS Act. 

[26]	The decision maker, Mr Dave Waters, outlined that the following allegation had been substantiated:

In contravention of a direction given to you by a responsible person, you have not provided to your line manager or uploaded into the designated system evidence of vaccination confirming that you have received the prescribed number of doses of a COVID-19 vaccine or have received the first dose of a COVID-19 vaccine and are on an evidenced pathway to full compliance with the Directive. 

[27]	The Appellant concedes in the notice of appeal that she was ''aware that I never obeyed when directed by a 'responsible person' to get the COVID-19 vaccination within the time frame given.'' 

[28]	It is not in contention that the Appellant did not receive the prescribed number of doses as outlined in the allegation. Mr Waters proceeded to determine that on the basis of the substantiated allegation, he was reasonably satisfied that the Appellant contravened, without reasonable excuse, a direction given as a public service employee by a responsible person pursuant to s 187(1)(d) of the PS Act. 

[29]	In the Appellant's response to Mr Waters correspondence proposing a disciplinary penalty, the Appellant provided evidence that she had received the second dose of the COVID-19 vaccine. Mr Waters acknowledged that the Appellant had become fully vaccinated, however noted that the Directive placed an obligation on the Appellant to receive the first dose of a COVID-19 vaccine by 30 September 2021 and received the second dose by 31 October 2021. 

[30]	The Appellant applied for an exemption from the requirements of the Directive and was advised on 4 November 2021 that the application had been declined. The Appellant was directed to receive the required dose and provide written confirmation of compliance within seven days of the letter.

[31]	The Appellant requested an internal review and on 20 December 2021 Dr Michael Cleary confirmed the decision to refuse the application for exemption. The Appellant was directed to receive the required dose of a COVID-19 vaccine by 4 January 2022.  The Appellant was on notice from this date that she was required to comply with the requirement to receive two doses of a COVID-19 vaccination in compliance with the Directive. 

[32]	The Appellant submitted that it was her intention to wait until the Novavax vaccine was available however this did not happen within the Directive time period. Mr Waters determined that a preference for one vaccine over another was not a reasonable excuse for failing to follow a reasonable direction given by a responsible person. In circumstances where personal preference does not form part of the Directive, it was open to Mr Waters to reject this submission. 

[33]	The Appellant submits that colleagues in her workplace who did not receive both vaccinations have been treated differently and have not received a reprimand. There is no evidence before me relating to any of those matters, and as each matter turns on its own facts, this submission does not assist in determining this appeal. 

[34]	In circumstances where the Appellant did not comply with her obligation to become vaccinated for approximately five months after the Direction, it was open to the Respondent to take disciplinary action. As considered in Huntington v State of Queensland (Queensland Health), subsequent vaccination might serve to mitigate the effects of non-compliance, however it does not extinguish the fact that the Appellant did not comply with the Directive's requirements to receive vaccinations by the dates stipulated. 

[35]	The disciplinary action of a reprimand was proportionate to the conduct and is at the lighter end of the potential disciplinary actions open to the decision maker. I consider the  imposition of a reprimand to be a fair decision in consideration of all the circumstances of this matter.

[36]	The relevant principles in considering whether a decision is 'unreasonable' were outlined by Ryan J in Gilmour v Waddell & Ors:  

The focus of a review of the reasonableness, or unreasonableness, of a decision is on whether the decision is so unreasonable that it lacks intelligent justification in all of the relevant circumstances.
 
The legal standard of unreasonableness is to be considered by reference to the subject matter, scope and purpose of the statute conferring the power. 

A court considering an argument that a decision is unreasonable is not undertaking a merits review. If a decision may be reasonably justified, then it is not an unreasonable decision, even if a reviewing court might disagree with it.

[37]	Applying the principles outlined above, I do not consider that the decision to impose a reprimand lacks justification in the circumstances. The penalty is, in my view, proportionate to the substantiated conduct. 

[38]	Based on the information before me, I am satisfied that the decision to make a disciplinary finding based on the substantiated allegation and impose a disciplinary action of a reprimand is fair and reasonable in the circumstances. 

Order

[39]	I make the following order:

Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed.