Grainey v State of Queensland

Colebourne v State of Queensland (Queensland Police Service [2021] QIRC 380

State of Queensland (Queensland Health) v The Regulator under the Work Health and Safety Act [2021] QIRC 190

• [1] This decision addresses an interlocutory issue that has arisen at a preliminary stage of the proceedings with respect to an appeal of a decision commenced in accordance with the Public Service Act 2008 (Qld) ('the PS Act').

• [2] On 20 May 2022, Ms Melissa Grainey, who is employed as a clinical nurse with Queensland Health ('the Department') filed an appeal notice in the Industrial Registry. The appeal notice provides that Ms Grainey is appealing a discipline decision which takes effect on 29 April 2022. The appeal notice attaches three schedules which are titled 'Schedule A-1 Grounds for Appealing the Disciplinary Decision', 'Schedule A-2 Background of events leading up to purported grounds for discipline and then any disciplinary action' and 'Schedule B Interim relief and final orders sought'. Schedule B included a paragraph setting out the interim relief and final orders sought by

Ms Grainey which included, inter alia, an immediate stay of the decision being appealed against.

• [3] The decision attached to the appeal notice is the decision of Acting Executive Director of the Royal Brisbane and Women's Hospital ('RBWH') dated 28 April 2022, which sought to continue Ms Grainey's suspension from duty without normal remuneration.

• [4] Given the matters raised in the schedules attached to the appeal notice, the Commission listed the matter for mention on 27 May 2022.

• [5] During the mention, Ms Grainey's agent confirmed that the appeal was limited to the decision to continue to suspend Ms Grainey without remuneration and confirmed that any reference to 'disciplinary action' in the schedules was a reference to the suspension without remuneration decision. In addition to this, the Department confirmed that

Ms Grainey was originally suspended without remuneration on 8 April 2022 and that any application for a stay of the decision would be objected to.

• [6] Following the mention of the matter, the Commission issued the parties directions to file submissions in support of their position with respect to the stay of the decision and also the interim relief as set out in Schedule B to Ms Gainey's appeal notice.

• [7] The Department provided its written submissions on 3 June 2022, and the Appellant's agent confirmed that it did not wish to file any additional material in relation to the interlocutory matter and requested that the matter be heard on the papers pursuant to

s 451(1) of the Industrial Relations Act 2016 (Qld) ('the IR Act').

• [8] The decision which is the subject of the appeal is in the following terms:

Decision on suspension without normal remuneration

Section 137(4) of the Act provides that a chief executive (or delegate) may decide that normal remuneration is not appropriate during a period of suspension, having regard to the nature of the discipline to which the delegate believes the person is liable. Under Clause 6.3 of the Public Service Commission Directive 16/20 Suspension. in making any decision, I must consider:

• the nature of the disciplinary matter.
• the factors not within the control Of the Health Service that are preventing the timely conclusion of the discipline process; and
• the public interest of the employee remaining on suspension with remuneration.

Whilst I have had careful regard to all material before me, including your response, I have determined that in accordance with section 137(4) Of the Act that you should remain suspended from duty without normal remuneration for the following reasons:

• the nature of the disciplinary matter; and
• The public interest in ensuring management of public resources effectively, efficiently and economically.

Further, I have a statutory obligation to manage public resources efficiently, responsibly and in a fully accountable way. I have considered the timeframe for you to comply with the Directive specifically the Directive came into effect on 11 September 2021 and the Health Service made its employees aware of the requirements Of the Directive and provided sufficient time for employees to comply with the Directive. I do not consider it is an appropriate use of public monies for you to be suspended with remuneration.

Accordingly, pursuant to section 137(4) of the Act, I have decided to extend your suspension without remuneration up to and including 17 May 2022.

• [9] Section 566(1) of the Industrial Relations Act 2016 (Qld) ('the IR Act') bestows a discretionary power on the Commission to order a stay of a decision being appealed and is in the following terms:

(1) On an appeal, the industrial tribunal may order that the decision being appealed be wholly or partly stayed pending-

• [10] In State of Queensland (Queensland Health) v The Regulator under the Work Health and Safety Act,[1] his Honour O'Connor VP set out the principles governing the exercise of the discretionary power to stay a decision as follows:

[10] The principles governing the exercise of a discretionary power to stay were enumerated in Alexander v Cambridge Credit Corporation Ltd. Those principles are summarised as follows:

1. The onus is upon the applicant to demonstrate a proper basis for a stay which will be fair to all parties.

1. The mere filing of an appeal does not demonstrate an appropriate case or discharge the onus.

1. The court has a discretion involving the weighing of considerations such as balance of convenience and the competing rights of the parties.

1. Where there is a risk that the appeal will prove abortive if the appellant succeeds and a stay is not granted, courts will normally exercise their discretion in favour of granting a stay.

1. The court will not generally speculate upon the appellant's prospect of success, but may make some preliminary assessment about whether the appellant has an arguable case, in order to exclude an appeal lodged without any real prospect of success simply to gain time. (citations omitted)

• [11] This approach was also implemented in Colebourne v State of Queensland (Queensland Police Service [2] ('Colebourne'), where his Honour Merrell DP held:

[32] Section 566(1) of the IR Act confers an unfettered discretion on the Commission to grant a stay of a decision being appealed.

[33] The parties agree on the relevant principles that apply, in determining whether or not to exercise discretion, to grant a stay. They are:

• the onus is on the applicant to demonstrate a proper basis for a stay that will be fair to all parties;

• the mere filing of an appeal will not, of itself, provide a reason or demonstrate an appropriate case, nor will it discharge the onus which the applicant bears;

• the tribunal has a discretion whether or not to grant a stay and, if so, as to the terms that would be fair;

• in the exercise of its discretion, the tribunal will weigh considerations such as the balance of convenience and the competing rights of the parties before it;

• where there is a risk that the appeal will prove abortive if the applicant succeeds and a stay is not granted, tribunals will normally exercise their discretion in favour of granting a stay;

• where it is apparent that unless a stay is granted, an appeal will be rendered nugatory, this will be a substantial factor in favour of the grant of a stay; and

• although tribunals approaching applications for a stay will not generally speculate about the applicant's prospects of success, given that argument concerning the substance of the appeal is typically and necessarily attenuated, this does not prevent them considering the specific terms of a stay that will be appropriate fairly to adjust the interests of the parties, from making some preliminary assessment about whether the applicant has an arguable case.

[34] The prospects of success will obviously tend to favour the refusal of a stay if the prospects of the appeal can be seen to be very poor.

[35] In general, the balance of convenience involves a consideration of whether the inconvenience or injury which the applicant would be likely to suffer if a stay is refused outweighs or is outweighed by the injury which the respondent would suffer if a stay was granted. (citations omitted)

• [12] The Department raises a jurisdictional objection to the appeal. The Department submits that the appeal has been commenced on the basis that Ms Grainey is appealing a disciplinary decision and that the submissions attached to the appeal notice relate to the fairness and reasonableness of a disciplinary decision, not a suspension without pay decision. Further, the Department submits that the submissions also appear to challenge a decision dated 21 March 2022, which determined to refuse Ms Grainey's request for an exemption from compliance with Health Employment Directive 12/21 Employee COVID-19 vaccination requirements ('the Directive') and challenge the lawfulness of the Directive itself. The Department submits that any appeal in respect of the decision to refuse Ms Grainey's exemption application was required to be made by 11 April 2022 and that an appeal of that decision would be significantly out of time. Further, the Department contends that having regard to Ms Grainey's failure to provide submissions regarding the suspension without remuneration decision, Ms Grainey is attempting to use the suspension without remuneration decision as a mechanism to appeal the decision to refuse her exemption application and challenge the lawfulness of the Directive.

• [13] In relation to the application for a stay of the decision, the Department submits that the suspension without remuneration decision expired on 17 May 2022 and accordingly, any application for a stay of the decision was required to be made before this time.

• [14] I will deal with the Department's jurisdictional objection first.

• [15] There is clear reference, in Schedule A-1 and Schedule A-2 attached to the appeal notice, to matters that are outside the scope of an appeal of a suspension without remuneration decision. However, at the mention of the matter, Ms Grainey's agent confirmed that the decision being appealed against is the decision to suspend Ms Grainey without remuneration dated 28 April 2022.[3] Further, no directions have been issued with respect to the filing of written material for the substantive matter.

• [16] The Department has not directed the Commission to any legislative provisions or authorities in support of its submission that the Commission does not have jurisdiction to hear the appeal. The Commission acknowledges the Department's submissions regarding this appeal being used as a mechanism to appeal another decision of the Department, however, as noted above, the parties have yet to file submissions with respect to the substantive matter and, accordingly, considers such a consideration to be premature at this juncture.

• [17] Having regard to the confirmation provided by Ms Grainey's agent regarding the decision being appealed against, that the parties are yet to file written material with respect to the decision being appealed against and that the appeal has been filed in accordance with the PS Act, I am not satisfied that the basis for the Department's objected has been established.

• [18] In relation to the stay of the decision, the Department submits that the suspension without remuneration decision expired on 17 May 2022 and accordingly, any application for a stay of the decision was required to be made prior to this date.

• [19] I accept the Department's submissions in this regard.

• [20] Ultimately, I have concluded that the decision the subject of the appeal is not one which is capable of being stayed. The reason for this is that in the decision, was one which extended Ms Grainey's previous suspension without normal remuneration up to and including 17 May 2022. This date preceded the filing of the appeal by Ms Grainey. Accordingly, at the time the appeal was filed by Ms Grainey had already been suspended without pay for a period of time. Consequentially, there is no utility in granting a stay in the circumstances of this matter.

• [21] The Department makes the following submissions in relation to the Applicant's requests regarding the future conduct of the matter:

(a) the Department does not see any utility in attending a conference, preparing affidavit evidence, or the matter being determined by a hearing; and

(b) the Department objects to any orders for disclosure regarding the delegated authority for making the exemption refusal decisions as it is not relevant to the suspension without remuneration decision.

• [22] The Department further contends that this matter ought to be decided in the usual manner, namely 'on the papers'.

• [23] This appeal has been commenced in accordance with the PS Act. A public service appeal commenced pursuant to Ch. 7 Pt. 1 of the PS Act is to be heard and decided under the IR Act.[4] Section 562B(2) of the IR Act provides that the Commission must decide the appeal by reviewing the decision appealed against to determine whether the decision appealed against was fair and reasonable.

• [24] Accordingly, in determining this matter, the Commission will have regard to the material and information that was before the decision maker at the time the decision was made. In the absence of any explanation from the Appellant, it is difficult to determine what benefit, if any, the Commission would gain from listing the matter for a conference or directing the parties to file affidavit material in support of the appeal in circumstances where the Commission's role in this appeal is confined to reviewing the decision to suspend Ms Grainey without normal remuneration dated 28 April 2022, of which, is already expired.

• [25] Ordinarily, the directions issued in an appeal of this nature provide a mechanism for the parties to file written submissions and any supporting information and to seek leave for the matter to be listed for an oral hearing in which further submissions can be made. The Commission has not yet issued such directions and consider it premature, at this juncture, to determine whether the matter should proceed on the papers or by way of an oral hearing.

• [26] I consider that the directions that will be issued in this matter following the release of these reasons provides the parties with an opportunity to request that the matter be listed for oral hearing, I will consider such a request should it be made in accordance with the directions issued.

• [27] Accordingly, I make the following orders:

1. The Applicant's application to stay the decision the subject of the appeal is dismissed

(a) The Applicant file in the Industrial Registry, and serve on the Respondent, written submissions (of no more than five pages in length and any relevant attachments) in support of the appeal by 4.00pm 12 August 2022.

(b) That the Respondent file in the Industrial Registry, and serve on the Appellant, written submissions (of no more than five pages in length and any relevant attachments) in response to the Appellant's submissions by 4.00pm 19 August 2022.

(c) That, if needed, the Appellant file in the Industrial Registry, and serve on the Respondent, written submissions (of no more than three pages in length and any relevant attachments) in reply to the submissions of the Respondent, by 4.00pm 26 August 2022.

(d) Unless any party files an application for leave to make oral submissions or further written submissions by 4.00pm 30 August the matter will be dealt with on the papers pursuant to s 451(1) of the Industrial Relations Act 2016 (Qld).

[1] [2021] QIRC 190.

[2] [2021] QIRC 380

[4]Public Service Act 2008 (Qld), s 197.