Donzenac v State of Queensland (Queensland Health) - [2022] QIRC 391

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Donzenac v State of Queensland (Queensland Health) [2022] QIRC 391
PARTIES:	Donzenac, Rupika (Appellant) v State of Queensland (Queensland Health) (Respondent)
CASE NO:	PSA/2022/596
PROCEEDING:	Public Service Appeal – appeal against suspension without pay decision
DELIVERED ON:	12 October 2022
MEMBER: HEARD AT:	Pidgeon IC On the papers
ORDER:	1. The decision of 10 May 2022 determining that pursuant to s 137(4) of the PS Act, Ms Donzenac should be suspended from duty without normal remuneration is confirmed.
CATCHWORDS:	PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – public service appeal – appeal against a suspension without pay decision – where the respondent alleges that the appellant did not comply with Health Employment Directive No 12/21 Employee COVID-19 vaccination requirements – where allegation substantiated – where appellant sought exemption from complying with Directive – where appellant was denied an exemption from complying with Directive – where the appellant was suspended from duty without normal remuneration – where directive was reasonable – where the decision was fair and reasonable – decision confirmed
LEGISLATION:	Industrial Relations Act 2016 ss 562B, 562C Public Service Act 2008 ss 137, 194 Public Service Commission Directive 16/20 Suspension cl 6 Health Employment Directive No 12/21 Employee COVID-19 vaccination requirements cls 1, 2, 6, 7, 8, 10 Workers in a healthcare setting (COVID-19 Vaccination Requirements) Direction (No. 4).
CASES:	Graffunder v State of Queensland (Queensland Health) [2022] QIRC 076 Thorley v State of Queensland (Department of Education) [2022] QIRC 133 Tilley v State of Queensland (Queensland Health) [2022] QIRC 002

Reasons for Decision
Introduction

Ms Rupika Donzenac (the Appellant) is employed by the State of Queensland (Queensland Health) (the Respondent) as a Registered Nurse with the Metro North Hospital and Health Service.

Background

On 11 September 2021, Health Employment Directive 12/21 Employee COVID-19 vaccination requirements (HED 12/21) was issued. Ms Donzenac was a person to whom the Directive applied.

On 30 September 2021, Ms Donzenac applied for an exemption from HED 12/21 on the grounds of 'medical contraindication' and 'other exceptional circumstance'.[1] On 12 January 2022, Ms Donzenac was informed that her application for an exemption had been refused.[2] On 1 February 2022, Ms Donzenac requested an internal review of that decision. On 28 March 2022, Ms Donzenac was informed that the internal review had been completed and the decision to refuse her application for an exemption had been confirmed.[3] That correspondence informed Ms Donzenac of her appeal rights regarding the internal review decision. Ms Donzenac did not lodge an appeal against that decision.

[1] Respondent's submissions filed 8 September 2022, Attachment RD-2.

[2] Ibid Attachment RD-3.

[3] Ibid Attachment RD-4.

On 28 April 2022, Ms Donzenac was informed that she had been suspended from duty on normal remuneration. Ms Donzenac was provided with seven days to respond as to why she should not be suspended without pay.

On 4 May 2022, Ms Donzenac provided the following response regarding the proposed suspension without pay:

Dear Ms Nasato
I write in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Donzenac v State of Queensland (Queensland Health)

Details

AGLC: Donzenac v State of Queensland (Queensland Health) [2022] QIRC 391
Case: [2022] QIRC 391
Decision Date: 12 October 2022

CaseChat Overview and Summary

In this case, Ms Donzenac, an employee of Queensland Health, appealed against a decision to suspend her without pay. The State of Queensland, represented by Queensland Health, defended the suspension, asserting that Ms Donzenac had failed to comply with Health Employment Directive No 12/21, which mandated COVID-19 vaccination for employees. The crux of the dispute was whether the suspension was justified and whether the directive was reasonable and fair. The appeal was heard in the Queensland Civil and Administrative Tribunal.

The legal issues that the Tribunal had to address were whether the directive was reasonable and whether the decision to suspend Ms Donzenac without pay was fair and reasonable. Specifically, the Tribunal needed to determine if the directive was a lawful exercise of power under the Public Service Act 2008 and if the decision to suspend Ms Donzenac was proportionate and justified in the circumstances. Additionally, the Tribunal considered whether Ms Donzenac's application for an exemption from the vaccination requirement was properly assessed and if the decision to deny the exemption was reasonable.

The Tribunal concluded that the directive was reasonable and necessary in the context of a public health emergency. It found that the decision to suspend Ms Donzenac without pay was fair and reasonable given her failure to comply with the directive despite being given multiple opportunities to do so. The Tribunal noted that Ms Donzenac had been provided with information about the vaccination requirements and had applied for an exemption, which was denied. The Tribunal found that the decision to deny the exemption was reasonable and that the overall decision to suspend Ms Donzenac was proportionate to the breach of the directive.

The Tribunal confirmed the decision of 10 May 2022, upholding the suspension of Ms Donzenac without pay. The Tribunal found that the respondent had exercised its powers reasonably and that the decision was fair and proportionate to the circumstances. As such, the appeal was dismissed.

Orders

Orders of the court

1. The decision of 10 May 2022 determining that pursuant to s 137(4) of the PS Act, Ms Donzenac should be suspended from duty without normal remuneration is confirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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