Flint v State of Queensland (Queensland Health)
[2022] QIRC 204
•6 June 2022
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
| CITATION: | Flint v State of Queensland (Queensland Health) [2022] QIRC 204 |
PARTIES: | Flint, Jessica v State of Queensland (Queensland Health) |
CASE NO: | PSA/2022/567 and PSA/2022/568 |
PROCEEDING: | Public Service Appeal – appeal against suspension with out pay decision |
DELIVERED EX TEMPORE ON: | 6 June 2022 |
MEMBER: | Dwyer IC |
| HEARD AT: | Brisbane |
ORDER: | 1. Pursuant to rule 45 of the Industrial Relations (Tribunals) Rules 2011 the appeals in matters PSA/2022/567 and PSA/2022/568 are dismissed. |
CATCHWORDS: | PUBLIC SERVICE – APPEAL – where the appellant was emailed notice of listings for mentions scheduled for 30 May 2022 and 6 June 2022 – where the appellant failed to attend – appeals dismissed |
| LEGISLATION: | Industrial Relations Act 2016 (Qld) chapter 11 Industrial Relations (Tribunals) Rules 2011 (Qld) r 45 |
Reasons for Decision (ex tempore)
Ms Jessica Flint filed two public service appeals pursuant to chapter 11 of the Industrial Relations Act 2016 (Qld) ('the Act') on 11 May 2022. They were designated the following numbers by the Industrial Registry: PSA/2022/567 and PSA/2022/568 ('the appeals').
Notably, each appeal was filed in respect of decisions that were dated, respectively, in March and in February. That is to say, both of the appeals were filed well outside of the prescribed time limit of 21 days for the filing of public service appeals.[1] Both matters were listed simultaneously for mention before me on 23 May 2022. Ms Flint participated in that mention.
[1] Industrial Relations Act 2016 (Qld) s 564.
At that mention I noted that the appeals arose out of Ms Flint's non-compliance with a direction that she be vaccinated against Covid-19. The tenor of the appeals was underpinned by Ms Flint’s assertion that she had a genuine medical contraindication and could not receive the available vaccines. I noted that Ms Flint's application to be exempt from having the vaccine was supported by a medical certificate from a Dr Philip Stowell from Manly Village Medical that read:
This is to certify that I have today examined Jessica and it is my opinion that due to a couple of medical conditions she is unfit for injection with an unapproved experimental gene therapy.
Notwithstanding that Ms Flint's appeals were out of time, I was concerned that if she had a genuine medical contraindication, she may have suffered some unfairness in the decision-making process as a consequence of, what I consider to be, the inadequate description of her condition and the somewhat controversial and combative language used by Dr Stowell.
As a consequence of my concerns I asked Ms Flint if she would obtain some more detailed medical evidence to support the medical contraindication that she purported to rely on with respect to her non-compliance with the vaccine mandate.[2]
[2] T 1-8, ll 25-41; T 1-13, ll 12-22.
The matter was adjourned for 7 days until 30 May 2022 to allow her to obtain that medical evidence. A listing notice for that adjournment was issued to the parties, including Ms Flint, via email.[3]
[3] The email enclosing the notice of listing was sent from the Industrial Registry to the parties on 24 May 2022.
In the intervening period before the next mention, Ms Flint emailed the Industrial Registry and informed me (through the Registry) that she was unable to attend upon her doctor to obtain any medical evidence for a further three weeks. There was no request to adjourn the scheduled mention, nor did I make any such order.
On 30 May 2022 at the appointed time of 3pm, Ms Flint was contacted by the operator to participate in a mention. I was subsequently informed that after some brief initial contact on the telephone, Ms Flint asserted the matter was not going ahead for three weeks and then terminated the phone call. Despite numerous efforts, Ms Flint could not be contacted again by the operator. Consequently, the mention proceeded in her absence and the matter was then adjourned for further mention to 3pm on 6 June 2022. Again, a listing notice was issued to the parties, including Ms Flint, via email.[4]
[4] The email enclosing the notice of listing was sent from the Industrial Registry to the parties on 31 May 2022.
On 6 June 2022 at the time scheduled for the mention the operator contacted Ms Flint. I am informed that Ms Flint advised that she would not be available 'for another 30 minutes' and then terminated the call. Consequently, the mention was stood down for 30 minutes. At 3.30 pm, after numerous attempts to contact Ms Flint, she was not able to be contacted by telephone.
Rule 45 of the Industrial Relations (Tribunals) Rules 2011 (Qld) provides that the Commission may dismiss proceedings where a party fails to comply with a directions order.
Relevantly, rule 45 provides:
(1)This rule applies if—
(a) a party to a proceeding receives notice of a directions order made by the court, commission or registrar stating a time, date and place for a hearing or conference for the proceeding; and
(b) the party fails to attend the hearing or conference.
(2)This rule also applies if—
(a) a party to a proceeding receives notice of a directions order made by the court, commission or registrar; and
(b) the party fails to comply with the order.
(3)The court, commission or registrar may—
(a) dismiss the proceeding; or
(b) make a further directions order; or
(c) make another order dealing with the proceeding that the court, commission or registrar considers appropriate, including, for example, a final order; or
(d) make orders under paragraphs (b) and (c).
In all of the circumstances set out above, I am satisfied that Ms Flint has now failed on two separate occasions to comply with a directions order to attend and participate in a mention of these matters.
In those circumstances, I intend to dismiss both appeals.
Order
In the circumstances I make the following order:
1.Pursuant to rule 45 of the Industrial Relations (Tribunals) Rules 2011 the appeals in matters PSA/2022/567 and PSA/2022/568 are dismissed.
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