Maina v State of Queensland

Public Service Act 2008 (Qld), ch 7

A1 Rubber (Aust) Pty Ltd v Chapman (Office of Industrial Relations) [2019] ICQ 16

Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541

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

Chapman v State of Queensland [2003] QCA 172

Erhardt v Goodman Fielder Food Services Limited (1999) 163 QGIG 20

Graffunder v State of Queensland (Queensland Health) [2022] QIRC 076

Higgins v State of Queensland (Queensland Health) [2022] QIRC 030

Tilley v State of Queensland (Queensland Health) [2022] QIRC 002

• [1] Ms Caroline Maina ('the Appellant') is employed as a Registered Nurse at the Ipswich Hospital within West Moreton Health ('WMH') by the State of Queensland (Queensland Health) ('the Respondent').

• [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.[1]

• [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 30 September 2021, the Appellant applied for an exemption to the mandatory vaccine requirements under the Directive based on other exceptional circumstances (the 'exemption application'). By letter dated 1 December 2021, Ms Claire Barratt, Acting Chief Strategy Officer, WMH, advised that the Appellant's exemption application based on other exceptional circumstances had been denied. 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 15 December 2021, the Appellant requested for an internal review of the decision to deny the Appellant's exemption application and by letter dated 21 December 2021, Mr Silven Simmons, Senior Director People Safety and Performance, Human Resources Branch confirmed the decision of Ms Barratt in denying the Appellant's exemption application.

• [6] By appeal notice filed on 31 January 2022, the Appellant appeals the internal review decision of Mr Simmons pursuant to ch 7 of the Public Service Act 2008 (Qld). A mention was subsequently held where it was determined that a jurisdictional issue relating to the appeal being filed out of time will first be determined prior to consideration of whether the denial of the Appellant's exemption application was fair and reasonable.

• [7] A further directions order was subsequently issued, directing parties to file submissions with respect to whether an extension of time should be granted for the Appellant to file the appeal.

• [8] In the appeal notice, the Appellant outlined the following reasons for the delay in filing the appeal:

There were work related IT technical issues with receiving the outcome of my application. I therefore received the email on the 6th of January. I have also applied for union representative and is [sic] awaiting feedback from the team.

• [9] Section 564 of the Industrial Relations Act 2016 (Qld) ('the IR Act') provides for the 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.

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.

• [10] The Appellant, in her submissions, reiterated the reasons for seeking an extension of time as outlined in the appeal notice. With respect to the Appellant's IT issues, the Appellant further submits, in summary, that:

(a) work related emails were always sent to the Appellant through the Respondent's Outlook website which the Appellant has installed on her mobile device. Unbeknownst to the Appellant, the password has expired in early December and consequently, the Appellant did not receive any form of correspondence from this point in time;

(b) on or about 15 December 2021, the Appellant contacted the Nurse Unit Manager via SMS and notified her that she was unable to access her work emails as the password had expired. The Nurse Unit Manager advised the Appellant to request for a password reset through the IT help desk. The Appellant submits that the password reset was a voice automated reset system and that the Appellant was to receive a code, however, this did not occur;

(c) the Appellant assumed, as she was away from work, that any further correspondence would be sent to the Appellant's private email address known to the Appellant's employer and manager; and

(d) on 6 January 2022, the Appellant made another phone call to the Respondent's IT help desk to request another password reset and the same scenario of 15 December 2021 occurred. The Appellant, again, contacted the IT help desk and requested to speak to a customer service representative who was able to manually reset the Appellant's password, allowing the Appellant to access her work related emails.

• [11] The Appellant submits that on or about 21 December 2021, an email was sent to the Appellant from Mr Simmons, requiring the Appellant to lodge a public service appeal within 21 days of receiving the decision, being 11 January 2022. The Appellant submits that given she had only received the email on the 6 January 2022, the Appellant was left with five days to submit an appeal to the Commission. The Appellant submits that this timeframe was not sufficient which was the reason as to why the Appellant made the request to the Commission for an extension of time.

• [12] The Appellant submits that Ms Yvonne Prince, Principal Workplace Relations Advisor, People and Culture, forwarded Mr Simmons letter to the Appellant's work and personal email addresses on or about 10 January 2022.

(a) during this time period, the Appellant had parenting commitments which required mediation and has been time consuming;

(b) the Appellant had been required to deal with an illness from a family member overseas which was a draining situation and required the Appellant's attention; and

(c) the Appellant had been experiencing issues with her overall health, mostly relating to fatigue that requires ongoing pathology testing.

• [14] The Respondent made extensive submissions with respect to whether the decision in denying the Appellant's exemption application was fair and reasonable. With respect to whether an extension of time should be granted to the Appellant, the Respondent submits, in summary, that:

(a) the Appellant received Mr Simmons' decision on 22 December 2021;

(b) the appeal was due to be filed by 12 January 2022 and is therefore 19 days outside of the 21-day limitation period in accordance with s 564 of the IR Act;

(c) Mr Simmons expressly told the Appellant she was required to file any appeal within 21 days. Even on the Appellant's version of events, being that she received the decision on 6 January 2022, the appeal is four days out of time;

(d) the importance of the application of statutory time limits has been consistently recognised;[2]

(e) the Appellant is appealing a decision to confirm the refusal of her exemption application, 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 the Appellant is significant;

(f) extensions to legislative timeframes should only be allowed in exceptional circumstances; and

(g) none of the Appellant's reasons for lodging her appeal out of time are exceptional circumstances. Further, it is clear the circumstances surrounding the delay are not attributable to the Respondent.

• [15] This appeal arises following an internal review decision by Mr Simmons confirming the decision of Ms Barratt to deny the Appellant's exemption application.

• [16] 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 IR Act.

• [17] The Appellant bears the onus of establishing that the justice of the case requires an extension of time.[3] The statutory provision was considered in A1 Rubber (Aust) Pty Ltd v Chapman (Office of Industrial Relations) ('AI Rubber'),[4] 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."[5]

• [18] 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...[6]

• [19] The internal review decision of the Appellant's exemption application was made on 21 December 2021. The Respondent submits that the Appellant received the decision on 22 December 2021 and the appeal was filed 19 days beyond the 21-day time limitation period.

• [20] The Appellant submits that as she was away from work she was of the assumption that correspondence would be emailed directly to her private email address. It is not clear why the Appellant formed this assumption. The Appellant submits that she did not receive the decision until 6 January 2022 as a result of IT issues relating to an expired password to her work email. Whilst I accept this submission, the Applicant's appeal was nonetheless filed four days beyond the 21-day statutory time limitation if the date of receipt is taken to be 6 January 2022.

• [21] The Appellant's explanation as to why the appeal was filed out of time after she had received the letter relate to waiting for union feedback, parenting commitments, illness of an overseas family member and personal health issues. I accept that each of these matters may have been additional stressors, however they do not indicate exceptional circumstances that would prevent the Appellant from filing the appeal within the statutory time period. I also note that the notice of appeal contained no grounds of appeal and simply attached the decision, suggesting that the time taken to prepare and lodge the appeal was minimal.

• [22] 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 in order to extend this timeframe. Such reasons are not evident in this matter.

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

• [24] The Queensland Court of Appeal considered this point in Chapman v State of Queensland,[7] 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...[8]

• [25] 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.[9] I do not consider that this appeal has good prospects of success for a number of reasons.

• [26] 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 'other exceptional circumstances', with the Appellant providing a letter in support of her application outlining concerns regarding the risks, safety and efficacy of COVID-19 vaccination.

• [27] The Appellant requested an internal review of the decision to refuse her exemption application, stating that she held a 'hesitancy' due to concerns regarding the medium and long-term effects of the vaccination. The internal review decision confirmed the decision to refuse the exemption application, noting the high level of risk to the health and wellbeing of patients, colleagues and other key stakeholders who access services from Ipswich Hospital where the Appellant is currently employed as a nurse.

• [28] The Appellant's appeal notice did not include grounds of appeal, with the Appellant simply attaching a copy of the review decision. The Appellant did not provide any specific evidence of medical contraindications in her exemption application, review application, or appeal notice, with the substantive reasons for the exemption application being COVID-19 vaccine hesitancy. Vaccine hesitancy has been considered in a number of decisions, and by itself is not an exceptional circumstance for the purposes of an exemption from the Directive requirements.[10]

• [29] The Appellant's exemption application was supported by a letter in which the Appellant set out a list of questions and conditions upon which she would 'accept' the offer to receive treatment. The Directive does not contain an offer to receive treatment, rather it is a lawful and reasonable direction to certain employees to be vaccinated.[11]

• [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.

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

• [32] 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.

• [33] The consequence of not extending the time period for the Appellant is that the appeal will not be heard and 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.

• [34] 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.

The appeal is dismissed for want of jurisdiction.

[2] citing Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541; Erhardt v Goodman Fielder Food Services Limited (1999) 163 QGIG 20.

[3] Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541.

[4] [2019] ICQ 16.

[7] [2003] QCA 172.

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

[10] Tilley v State of Queensland (Queensland Health) [2022] QIRC 002; Higgins v State of Queensland (Queensland Health) [2022] QIRC 030; Graffunder v State of Queensland (Queensland Health) [2022] QIRC 076.

[11] Tilley v State of Queensland (Queensland Health) [2022] QIRC 002.