Mulder v State of Queensland (Queensland Health) - [2023] QIRC 64

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	_Mulder v State of Queensland (Queensland Health) [2023] QIRC ₀₆₄
PARTIES:	Mulder, Angela (Appellant) v State of Queensland (Queensland Health) (Respondent)
CASE NO.:	PSA/2022/607
PROCEEDING:	Public Service Appeal – Disciplinary Decision
DELIVERED ON:	28 February 2023
MEMBER: HEARD AT:	Power IC On the papers
ORDER:	*_{Pursuant to s 562C(1)(a) of the}Industrial Relations Act 2016* (Qld), the decision appealed against is confirmed.**
CATCHWORDS:	PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – Public Service Appeal – where respondent alleges that appellant did not comply with Health Employment Directive No 12/21 Employee COVID-19 vaccination requirements – where allegation substantiated - consideration of penalty – where appellant issued with reprimand – where appellant appeals decision to issue reprimand – where decision appealed against confirmed.
LEGISLATION:	Hospital and Health Boards Act 2011 (Qld), s 51A Industrial Relations Act 2016 (Qld), ss 562B and 562C Public Service Act 2008 (Qld), ss 187, 188 and 194 Work Health and Safety Act 2011 (Qld)
CASES:	Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245 Gilmour v Waddell & Ors [2019] QSC 170 Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018) Huntington v State of Queensland (Queensland Health) [2022] QIRC 290 Mocnik & Others v State of Queensland (Queensland Health) [2023] QIRC 058 Ms Anna Gikas v The Commissioner For Public Employment [2022] FWC 1133

Reasons for Decision

Introduction

Ms Angela Mulder ('the Appellant') is employed by the State of Queensland (Queensland Health) ('the Respondent') as a Registered Nurse, Post Anaesthetic Care Unit at Logan Hospital.
By letter dated 19 May 2022, Mr Dave Waters (Mr Waters), Executive Director Human Resources, Metro South Health ('MSH') informed the Appellant of the decision to impose a disciplinary action of a reprimand, pursuant to s 188 of the Public Service Act 2008 (Qld) ('the PS Act').
By appeal notice filed on 9 June 2022, the Appellant appealed against the disciplinary penalty decision, pursuant to s 194(1)(b)(i) of the PS Act.
Background
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').
Clause 1 of the Directive provides that compliance with the Directive is mandatory. Clause 4 of the Directive provides that the Directive applies to all health service employees and prospective employees employed under the HHB Act.
Clause 8.1 of the Directive provides:
8.1 Existing employees currently undertaking work or moving into a role undertaking work listed in a cohort of Table 1, must:
a. have received at least the first dose of a COVID-19 vaccine by 30 September 2021; and
b. have received the second dose of a COVID-19 vaccine by 31 October 2021.
• An existing employee must provide to their line manager or upload into the designated system:
a. evidence of vaccination confirming that the employee has received…

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 Mulder v State of Queensland (Queensland Health)

Details

AGLC: Mulder v State of Queensland (Queensland Health) [2023] QIRC 64
Case: [2023] QIRC 64
Decision Date: 28 February 2023

CaseChat Overview and Summary

The matter before the court was an appeal by Mulder against the Queensland Health regarding a disciplinary penalty. Mulder, an employee of Queensland Health, had failed to comply with Health Employment Directive No 12/21 concerning employee COVID-19 vaccination requirements. The Respondent substantiated the allegation of non-compliance and issued a reprimand. Mulder appealed against the reprimand, leading to a review of the disciplinary penalty decision under s 194(1)(b)(i) of the PS Act.

The court was required to determine whether the penalty of a reprimand issued to Mulder was appropriate in the circumstances. The court had to consider the facts of the case, the Health Employment Directive No 12/21, and the process followed in issuing the reprimand. The court also needed to assess whether the penalty was proportionate to the offence and whether there were any mitigating or aggravating factors.

In confirming the reprimand, the court found that the penalty was appropriate given Mulder's failure to comply with the mandatory vaccination requirements. The court considered the nature of the offence, the Respondent's obligation to ensure a safe working environment, and the need for a deterrent effect of the penalty. The court held that the reprimand was a suitable penalty given the circumstances and did not find any error in the decision-making process.

The final order of the court was to confirm the reprimand issued to Mulder, pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld). The court found no merit in the appeal and upheld the disciplinary penalty decision.

Orders

Orders of the court

Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed.

Background

Background to the litigation

By appeal notice filed on 9 June 2022, the Appellant appealed against the disciplinary penalty decision, pursuant to s 194(1)(b)(i) of the PS Act.Background 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'). Clause 1 of the Directive provides that compliance with the Directive is mandatory. Clause 4 of the Directive provides that the Directive applies to all health service employees and prospective employees employed under the HHB Act. Clause 8.1 of the Directive provides:8.1 Existing employees currently undertaking work or moving into a role undertaking work listed in a cohort of Table 1, must:a. have received at least the first dose of a COVID-19 vaccine by 30 September 2021; and b. have received the second dose of a COVID-19 vaccine by 31 October 2021. • An existing employee must provide to their line manager or upload into the designated system: a. evidence of vaccination confirming that the employee has received at least the first dose of a COVID-19 vaccine by no later than 7 days after receiving the vaccine. b. evidence of vaccination confirming that the employee has received the second dose of a COVID-19 vaccine by no later than 7 days after receiving the vaccine. • An existing employee must maintain vaccine protection. Therefore, an existing employee is required to receive the prescribed subsequent dose/s of a COVID-19 vaccination (i.e. booster), as may be approved by the Australian Technical Advisory Group on Immunisation (ATAGI), within any recommended timeframe following the second dose. Evidence of vaccination, confirming the employee has received prescribed subsequent dose/s of the vaccine, is to be provided to their line manager or other designated person within 7 days of receiving the vaccine. • An existing employee who is required to have received a first or second dose of a COVID-19 dose at an earlier date under a Chief Health Officer public health direction must be vaccinated by the dates specified in the public health direction. • The requirements of this clause 8 do not apply to existing employees who have been granted an exemption under clause 10 of this HED. Clause 10.2 of the Directive provides 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. It is not in dispute that the Directive applies to the Appellant. On 30 September 2021, the Appellant submitted an exemption application to the mandatory vaccination requirements of the Directive. The Appellant identified 'other exceptional circumstances' as the basis for the exemption, submitting that the requirement for consultation had not been met, that the process is inconsistent with her human rights and the Appellant does not have the information necessary to provide full, free and informed consent.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I make the following order:Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed.

Ratio Decidendi

Legal Principle Established

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