Fraser v State of Queensland (Queensland Health)
[2024] QIRC 219
•5 September 2024
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Fraser v State of Queensland (Queensland Health) [2024] QIRC 219 |
PARTIES: | Fraser, Rachel v State of Queensland (Queensland Health) |
CASE NOS: | PSA/2022/438 |
PROCEEDING: | Public Service Appeal – Appeal against a disciplinary action decision |
DELIVERED ON: | 5 September 2024 |
MEMBER: HEARD AT: | Pidgeon IC On the papers |
ORDER: | Pursuant to r 45(3)(a) of the Industrial Relations (Tribunals) Rules, PSA/2022/659 and PSA/2022/893 are dismissed. |
| CATCHWORDS: | PUBLIC SERVICE APPEAL – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – where the appellant has failed to comply with directions of the Commission - where the appeal is dismissed |
LEGISLATION: | Industrial Relations Act 2016 (Qld) s 562A(3) |
Reasons for Decisions
Ms Rachel Fraser (the 'Appellant') was a Registered Nurse employed by the State of Queensland (Queensland Health), Metro North Hospital and Health Service (the 'Respondent') at The Prince Charles Hospital.
On 21 March 2022, Ms Fraser received an internal review decision from Adjunct Professor Jackie Hanson, Chief Executive. The decision upheld an earlier decision in which Ms Fraser's application for an exemption from the requirement to be vaccinated against COVID-19 was denied. Ms Fraser filed an appeal against that decision on 11 April 2022 ('Appeal PSA/2022/438').
On 21 June 2022, Ms Fraser received correspondence from Ms Angie Dobbrick, Acting Executive Director, The Prince Charles Hospital, informing her that she was to be suspended without normal remuneration. Ms Fraser filed an appeal against that decision on 7 July 2022 ('Appeal PSA/2022/659').
At the time Ms Fraser's appeals were filed, she was represented by Supportah Australia in Appeal PSA/2022/438 and QNurses First t/a Nurses Professional Association of Queensland ('QNurses First'), in Appeal PSA/2022/659.
On 24 April 2023, Vice-President O'Connor mentioned a number of public service appeals lodged by employees of the Respondent pertaining to the Health Employment Directive 12/21 Employee COVID-19 vaccination requirements ('the Directive') which required employees to receive a COVID-19 vaccination.
On 24 April 2023, prior to the mention, QNurses First filed a Form 35 – Notice of withdrawal of appointment of lawyer or agent.
At the mention, Vice-President O'Connor addressed Ms Fraser about both of her public service appeals. His Honour indicated to the parties that they may wish to have discussions about whether Ms Fraser was able to return to work but noted, '…that's a…management thing, not – nothing for me'.[1] There was agreement at the mention that both files would be adjourned to enable Ms Fraser to have a conversation with the Respondent. When Ms Fraser was ready to proceed, she was directed to inform the Industrial Registry.[2]
[1] TR1-14, LL38-39.
[2] TR1-15, LL45-47.
Over one-year later, on 3 June 2024, the Industrial Registry issued a Notice to Show Cause pursuant to r 231(1) of the Industrial Relations (Tribunals) Rules 2011 (Qld) (the 'IR Tribunals Rules'). Rule 231(1) provides that matters may be struck out where at least one-year has elapsed since the last action was taken. Ms Fraser was invited to show cause as to why the application should not be struck out.[3]
[3] The show cause notice of 3 June 2024 related to PSA/2022/659. A similar show cause notice was issued with regard to PSA/2022/438 on 31 May 2024.
On 25 June 2024, Ms Fraser wrote an email responding to both show cause notices. In that email, Ms Fraser stated her confusion about the status of her matters before the Commission, and that she was waiting to receive correspondence from a representative of the Respondent to discuss the possibility of returning to her job, which she had been terminated from at the end of 2023. In those circumstances, Ms Fraser was unsure whether there was utility in continuing with her public service appeals.
On Monday 15 July 2024, a directions order was issued to the parties. It afforded Ms Fraser the opportunity to address whether the Commission should decide not to hear the matter under s 562A(3) of the Industrial Relations Act 2016 (Qld) (the 'IR Act'). The direction ordered Ms Fraser to file her submissions by Monday 5 August 2024 and required the Respondent to file submissions in reply by Monday 26 August 2024.
On Tuesday 16 July 2024, Ms Nicole Smith of Crown Law, acting on behalf of the Respondent sent an email to the Industrial Registry, copied to Ms Fraser, which stated:
Good afternoon
I am instructed Ms Fraser's employment was terminated effective 30 November 2023. As such, there can be no practical effect from any decision made in respect of either of her appeals.
On Wednesday 7 August 2024, the Industrial Registry wrote to the parties stating the following:
Good afternoon
To date the Industrial Registry has not received the Appellant's submissions due 05 August 2024 as per the attached directions orders in the above matter.
Could you please provide an update by close of business tomorrow as to the progress of this submission. Should you seek an extension of time with regards to the submission, please provide written consent of the other party. Consent can be sought by email.
Kind regards,
…On Thursday 8 August 2024, Ms Fraser replied to the email and said:
Good afternoon,
Thank you for your email. I believe that QLD HEALTH emailed QIRC (cc. To myself) saying that I had no ability to follow the matter as they have fired me before it was heard.
I understand that the exemption appeal might not be applicable as I am no longer employed but the suspension without pay period, could that still be heard?Are you implying that QLD Health have to ok an extension on time?
Regards
..
On Friday 9 August 2024, the Industrial Registry wrote to the parties stating:
Good afternoon
After reviewing the matter, please be advised no extensions will be approved in relation to the Directions Order.
The Commission will be in contact in due course.
…On or around Tuesday 27 August 2024, both files were allocated to me. After reviewing the files and noting that the Appellant had failed to comply with the directions issued on Monday 15 July 2024, I considered what action to take pursuant to r 45 of the Industrial Relations (Tribunals) Rules 2011 (Qld) (the 'IR (Tribunals) Rules').
Rule 45 of the IR (Tribunals) Rules provides:
45 Failure to attend or to comply with directions order
(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).
I mentioned the matter by teleconference on 4 September 2024. I indicated to the parties that it was my intention to dismiss the matter pursuant to r 45 of the IR (Tribunals) Rules. During the mention, I invited Ms Fraser to make an oral request on the record to discontinue her matters pursuant to r 69 of the IR (Tribunals) Rules. I explained that if she declined to do so, I would issue written reasons for my decision to dismiss her appeals.
Ms Fraser noted that she does not have legal experience and expressed a desire to pursue her matters. In those circumstances, I did not further explore whether she wished to discontinue the appeals. I explained that Ms Fraser may wish to seek advice regarding different avenues to pursue her concerns, but that her opportunity to pursue her public service appeals had passed on the basis that she did not comply with the directions issued by Vice-President O'Connor.
Ms Fraser's appeals were filed in mid-2022. After her representatives withdrew, Ms Fraser became a self-represented person. Ms Fraser did not take any steps in relation to her appeals for a period of 12-months. When prompted to show cause as to why her matters should not be struck out, Ms Fraser cited that she was unsure about the status of the matters, and that she hoped it could be made clear whether there was 'validity' in continuing the appeals.[4] If Ms Fraser was unsure about the status of her matters, it was her obligation as a self-represented litigant responsible for the carriage of her own appeals, to make enquiries where necessary. At no time prior to the show-cause notice from the Industrial Registry did Ms Fraser do this.
[4] Email correspondence from the Appellant to the Industrial Registry dated Tuesday 25 June 2024 at 8.04am.
It appears that based on Ms Fraser's show cause response as to why the matters should not be struck out because of inaction for 12-months, and the issue she raised regarding the utility of hearing the appeals, Vice-President O'Connor issued directions to seek submissions from the parties as to whether there was a reason for the Commission to decide not to hear the appeals. Ms Fraser did not provide submissions as directed.
It is the responsibility of an Appellant to run their appeal. It is over one year since Ms Fraser's representatives withdrew and she has been responsible for conducting her appeals since that time. Ms Fraser appears to have only taken actions regarding her appeals when prompted by the Commission, firstly at the telephone mention in April 2023, and later when prompted to show cause regarding inaction on her appeals, and then when asked to provide submissions as to whether the appeals should not be heard pursuant to s 562A(3) of the IR Act.
Appeals cannot be conducted by way of email correspondence with the Respondent and the Industrial Registry. The directions order was never vacated or amended. No extension of time was granted. The directions made it explicit to Ms Fraser that the issue to be determined was whether the appeals would be heard at all. For an Appellant wanting their appeal to be heard, this is a crucial juncture in the proceedings. If Ms Fraser wanted her appeals heard, it was her responsibility to comply with directions and file submissions as directed.
The purpose of the IR (Tribunals) Rules is to provide for the just and expeditious disposition of the business of the Commission and the Registrar at a minimum of expense.[5] Ms Fraser failed to comply with the directions order and on that basis, for the reasons provided above from [17] – [22] of this decision, I am exercising the discretion afforded by r 45(3)(a) of the IR (Tribunals) Rules to dismiss both proceedings.
[5] Industrial Relations (Tribunals) Rules 2011 r 6.
Order:
I order that Appeal PSA/2022/659 and Appeal PSA/2022/893 are dismissed, pursuant to r 45(3)(a) of the Industrial Relations (Tribunals) Rules.
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