QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Mulder v State of Queensland (Queensland Health) [2023] QIRC 064	
		
PARTIES:	
	Mulder, Angela
(Appellant)

v

State of Queensland (Queensland Health)
(Respondent)
	
CASE NO.:
	PSA/2022/607
	
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

Work Health and Safety Act 2011 (Qld)
	
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

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

Ms Anna Gikas v The Commissioner For Public Employment [2022] FWC 1133	

Reasons for Decision

Introduction

[1]	Ms Angela Mulder ('the Appellant') is employed by the State of Queensland (Queensland Health) ('the Respondent') as a Registered Nurse, Post Anaesthetic Care Unit at Logan Hospital.

[2]	By letter dated 19 May 2022, Mr Dave Waters (Mr Waters), Executive Director Human Resources, Metro South Health ('MSH') 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 9 June 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]	It is not in dispute that the Directive applies to the Appellant.

[9]	On 30 September 2021, the Appellant submitted an exemption application to the mandatory vaccination requirements of the Directive. The Appellant identified 'other exceptional circumstances' as the basis for the exemption, submitting that the requirement for consultation 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 application was refused. The Appellant subsequently commenced a period of sick leave from 12 November 2021 until 26 November 2021.

[11]	On 16 November 2021, the Appellant sought an internal review of the exemption application refusal which was subsequently confirmed by the Respondent on 24 December 2021.

[12]	On 15 February 2022, a show cause letter was issued to the Appellant, wherein the Appellant was invited 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 22 February 2022, the Appellant provided a response to the show cause letter and further informed the Respondent that she had made an appointment to receive her first dose of the Novavax vaccine on 4 April 2022. The Appellant requested to use her accrued leave until she received the Novavax vaccine.

[14]	On 8 March 2022, the Appellant was issued with a disciplinary finding decision, substantiating the allegation on the basis that the Appellant have 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 14 March 2022, the Appellant provided a response to the disciplinary finding decision. 

[16]	On 4 April 2022, the Appellant received her first dose of the Novavax vaccine and supplied evidence of receiving the first dose to the Respondent on 7 April 2022.

[17]	On 12 May 2022, the Appellant received a second dose of the Novavax vaccine and supplied evidence of receiving the second dose to the Respondent on 15 May 2022.

[18]	On 19 May 2022, the Appellant was issued with a disciplinary action decision where the Respondent determined to impose a disciplinary action of a reprimand ('the decision').

Appeal principles

[19]	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.

[20]	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?

[21]	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.

The appeal notice

[22]	In the appeal notice, the Appellant provides an extensive chronology of events and contends that the Respondent did not take into account the following circumstances of the Appellant, that:

(a)	prior to the disciplinary decision being issued, the Appellant was simply exercising her industrial rights in accordance with consultation provisions under the industrial instrument, and rights and responsibilities afforded under the Work Health and Safety Act 2011 (Qld);

(b)	while these claims were being exercised, the Appellant had multiple personal stressors in her life. Notably, the Appellant had concerns around complying with the Directive given there were ongoing investigations into suspected infective endocarditis due to recurrent dental infections and numerous dental surgeries in 2021;

(c)	the Appellant informed MSH, on multiple occasions, of her genuine medical concerns and had requested to use her leave entitlements. At every opportunity throughout show cause processes, the Appellant attempted to reason with the Respondent for a delay in compliance with the Directive; and

(d)	the Appellant deliberately booked in an appointment to receive a vaccination as soon as possible after the final cardiac investigations occurred on 30 March 2022 and subsequently complied with the Directive on 4 April 2022.

[23]	The Appellant contends that the Respondent was 'fully aware' of the Appellant's medical reasoning, her 'uncontrollable genuine medical and personal circumstances' and that the Appellant elected to use her own leave entitlements as opposed to applying for special leave. The Appellant contends that she has maintained communications with the Respondent, demonstrating that her personal circumstances were beyond her control, delaying her ability to get vaccinated.

Appellant's submissions

[24]	The Appellant relies on the submissions made in the appeal notice, submitting that the decision to issue the Appellant with a reprimand is unfair in the circumstances. The Appellant submits, in summary, that:

(a)	the Appellant had scheduled to undergo oral maxillofacial surgery and a medical certificate was provided which covered the dates from 12 to 26 November 2021;

(b)	on 16 November 2021, the Appellant requested and was granted leave to use her leave entitlements because of ongoing investigations at Logan Hospital for suspected infective endocarditis. Consequently, this affected the Appellant's ability to get vaccinated;

(c)	at the time the internal review decision regarding the Appellant's exemption application was issued, the Appellant had already advised of her illness and complex medical issues which required assessment during that time;

(d)	after the internal review process, the Appellant did not continue to engage with the exemption process or any public service appeal related to the matter. Instead, the Appellant intended to wait until she had recovered and could seek advice regarding vaccination from her specialist;

(e)	the Appellant made an appointment to receive a COVID-19 vaccine on 4 April 2022, as early as 22 February 2022, allowing the Appellant to seek informed medical advice in relation to her medical issues. The appointment was made in good faith and well in advance. Further, as the appointment was scheduled nearly immediately after cardiac investigations on 30 March 2022, showed an indication to act on medical advice under the presumption it would be positive; and

(f)	the delay between receiving the first and second dose of the Novavax vaccine was as a result of the Appellant contracting COVID-19 between that time.

[25]	The Appellant refers to the decision of Ms Anna Gikas v The Commissioner For Public Employment, submitting that such a decision should be considered, with particular regard to the principles of fairness in the circumstances.

[26]	The Appellant submits that an exemption was sought on the basis of a medical contraindication on 16 November 2021. However, this was not acknowledged by Mr Adam Lavis, Director, Human Resources, MSH on 14 December 2021. Instead, consideration was only given to the Appellant's request to use her leave entitlements.

[27]	The Appellant submits that she was not aware of what a 'reasonable excuse' constituted, as she had explained her medical circumstances and had applied for an additional exemption on medical grounds. The Appellant submits that, at no point in time after this, was the Appellant directed to apply for another medical exemption.

Respondent's submissions

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

(a)	the Appellant only became fully vaccinated on 12 May 2022, some seven months after the obligation in the Directive was imposed. The delay is significant and without reasonable excuse;

(b)	the Appellant's delayed compliance does not overcome her refusal to comply with the reasonable direction for her to be vaccinated within the specified timeframes;

(c)	the Appellant attempts to justify the delay on the basis she required consultation and had a number of personal circumstances and health issues. However, the Appellant's exemption application was on the basis she felt she had not been adequately consulted or provided a risk assessment and that the Directive was inconsistent with her human rights and health and safety requirements;

(d)	it is not incumbent on the Respondent to accept the Appellant's views. Further, vaccine hesitancy is not an exceptional circumstance;

(e)	Mr Waters clearly outlined to the Appellant that a preference for one COVID-19 vaccine over another is not a reasonable excuse for failing to follow a reasonable direction given to her by a responsible person. In any event, the Respondent carefully considered her willingness to receive the Novavax vaccine;

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

(g)	given disciplinary findings were made and noting the importance of the directions contained in the Directive and the length of the Appellant's non-compliance, it is fair and reasonable that some form of disciplinary action was taken against the Appellant for failing to follow a lawful and reasonable direction;

(h)	the decision to impose a less serious disciplinary action is fair and reasonable and reflects that the Appellant eventually complied with the Directive, albeit some seven months late;

(i)	Mr Waters considered the Appellant's human rights may be impacted or potentially limited by taking disciplinary action against her. However, considered any limitation was demonstrably justified because it is in the public interest in ensuring the readiness of the health system in dealing with the COVID-19 pandemic, that public servants obey lawful instructions of the Director-General and the benefits to health of vaccination against COVID-19 during the pandemic;

(j)	the decision was procedurally fair and the Appellant was provided an opportunity to respond at each stage before any decision on disciplinary action was taken, and she took advantage of those opportunities; and

(k)	the Respondent accounted for the change in the Appellant's vaccination status after discipline findings had been made and after the termination of her employment had been proposed, and determined to implement the significantly less onerous penalty of a reprimand.

[29]	The Respondent outlines that the Appellant's exemption application did not indicate any intention to comply with the Directive and it was only after the Appellant was issued the show cause letter that she advised she intended to receive a Novavax vaccine. The Respondent submits that the Appellant did not provide evidence:

(a)	that her individual circumstances were exceptional such that they warranted priority over the health and safety of her colleagues, patients, and the member of the public who attended MSH; and

(b)	of a medical condition which meant she was unable to be safely administered the current vaccines; and

(c)	of circumstances specific to her which meant she was unable to be safely administered the current vaccines.

[30]	The Respondent highlights that all employees of the Respondent and MSH have access to information in respect to the safety and efficacy of COVID-19 vaccinations. Further, that The TGA's approval of the COVID-19 vaccines is a matter of public record and is evidence of their safety and efficacy. The Respondent submits that it was obliged to provide the Appellant with assurances concerning the safety or efficacy of the COVID‑19 vaccines and was not required to do its own risk assessment of the COVID-19 vaccines.

Appellant's submissions in reply

[31]	In reply, the Appellant submits that it is clear that the events that transpired immediately prior to the show cause letter being issued on 15 February 2022 and when the Appellant received her first dose of the Novavax vaccine on 4 April 2022 are 'pertinent' in proving the Appellant had genuine medical concerns warranting a delay in making a vaccination appointment.

[32]	The Appellant refers to her initial submissions and outlines the following:

…the appellant used sick leave until February 2022, following ongoing investigations at Logan Hospital. The events leading to check in at the Emergency Department at Logan Hospital occurred in mid-November, immediately prior to the request to use sick leave on November 16, 2021.

Following investigations at Logan Hospital, the appellant required referral to the Logan Hospital cardiac investigation team for suspected infective endocarditis. The last of these tests occurred at some date between 22 February (Ms Mulder’s response to the first show cause notice) and 4 April,
2022.

Although the appellant did not seek advice regarding vaccination because of the suspected infective endocarditis, she understood as a medical professional that she would need to seek advice if this condition was confirmed, as to whether she could become vaccinated for Covid-19.

At the final test, the appellant sought advice as to whether she could now get vaccinated against Covid-19, to which her treating cardiologists provided advice that there was nothing preventing it.

…a booking was made well in advance, scheduled to occur shortly after this final test.

[33]	In further submissions, the Appellant highlights that an explanation was provided in her response to the disciplinary finding decision dated 14 March 2022 that she was referred to her cardiologist for an exercise stress echocardiogram to rule out infective endocarditis. The Appellant submits that she wished to consult with her cardiologist after final assessment of this condition to ensure that no additional precautions were required to be taken regarding vaccination.

[34]	The Appellant attaches a copy of the referral document and acknowledges that it was not provided to the Respondent, however, submits that the Respondent did not consider requesting further evidence of the Appellant's medical condition prior to imposing a disciplinary action. The Appellant further submits that sufficient information was provided where the Respondent ought to have made further enquiries, given the seriousness of the Appellant's medical concerns.

Consideration

[35]	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. 

[36]	The disciplinary finding decision was issued to the Appellant on 8 March 2022. This decision substantiated 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.  

[37]	It is not in dispute that the Appellant did not receive her first vaccination until 4 April 2022 and the second vaccination until 12 May 2022.  

[38]	The Appellant submits that she had concerns about complying with the Directive due to personal medical issues in 2021 and her desire to consult with her specialist. Whilst this may have been the case, the Appellant's exemption application was made on the basis of concerns regarding consultation processes, risk assessments, health and safety requirements and inconsistency with human rights. These concerns do not give rise to a reasonable excuse for non-compliance with the Directive.

[39]	The Appellant did not provide evidence that her medical condition meant that she was unable to be safely administered the vaccines available at the time. The Appellant ultimately received the Novavax vaccination, however a personal preference for one particular COVID-19 vaccination over another is not a reasonable excuse for non-compliance with the Directive.

[40]	The Appellant submits that the Respondent ought to have made further enquiries as to her medical condition prior to taking disciplinary action. The onus is on the employee to provide all relevant information through the exemption process. There is no obligation on the Respondent to seek out medical information that has not been put before them. 

[41]	The Appellant submits that the decision of the Fair Work Commission in Ms Anna Gikas v The Commissioner for Public Employment (‘Gikas’) should be considered. The circumstances of that matter can be distinguished from those of this appeal due to the basis upon which an exemption was sought. The Appellant in Gikas did not receive a vaccination following an adverse reaction by a family member following vaccination. The basis upon which the Appellant sought an exemption in this matter did not relate to her individual medical circumstances. The Appellant's subsequent submissions related to her concerns of risk regarding a medical condition, however evidence of her medical assessment was not provided until after the disciplinary process had commenced and no evidence was provided indicating that this assessment gave rise to a medical contraindication. 

[42]	Based on the substantiated allegation, the decision maker determined 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. This finding was open to the decision maker on the basis that the Appellant had not complied with the requirements of the Directive. 

[43]	In the correspondence issued to the Appellant advising of the disciplinary finding, the Appellant was advised that serious consideration was being given to the termination of her employment. After receiving the Appellant's response, the decision maker determined that the appropriate disciplinary action was the imposition of a reprimand only.  The decision maker stated the following: 

In reaching my decision on disciplinary action to be taken, I have had regard to the following:
•	You have not provided a reasonable excuse for failing to comply with the requirements of the Directive within the prescribed timeframes;
•	That you have now received two doses of a Therapeutic Goods Administration (TGA) approved COVID-19 vaccine;
•	The personal, professional and financial impact of the proposed disciplinary action on you, and whether an alternative disciplinary penalty would be more appropriate in the circumstances. 
•	You do not have an approved exemption from the requirements of the Directive; and 
•	You have not provided an alternative disciplinary action for my consideration. 

In accordance with clause 8.6 (c) of Public Service Commission Directive 14/20 - Discipline, I may decide to impose disciplinary action different to the disciplinary action proposed in the show cause notice if the revised disciplinary action is objectively less onerous than the original action proposed. 

Accordingly, I have decided the appropriate disciplinary action to impose in the circumstances is a reprimand. 
  
[44]	In circumstances where the Appellant did not comply with her obligation to obtain the required vaccinations for approximately seven months after the Directive, it was open to the decision maker to impose disciplinary action. As determined in Huntington v State of Queensland (Queensland Health), an employee’s subsequent vaccinations might serve to mitigate the effects of non-compliance, however the fact remains that the Appellant did not comply with the Directive for a substantial period of time. 

[45]	It was reasonable for the decision maker to take into account the Appellant's later vaccination, which occurred after the disciplinary finding had been made, to then determine that the less onerous penalty of a reprimand should be imposed. 

[46]	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.

[47]	Applying the principles outlined above, I do not consider that the decision to impose a reprimand lacks justification in the circumstances. I accept that an employee's willingness to comply with a lawful and reasonable direction is a key component of the employment relationship. The penalty is, in my view, proportionate to the substantiated conduct. 

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

Order

[49]	I make the following order:

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