Ogbonna v State of Queensland (Queensland Health)
[2023] QIRC 41
•10 February 2023
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
| CITATION: | Ogbonna v State of Queensland (Queensland Health) [2023] QIRC 041 |
| PARTIES: | Ogbonna, Pamela v State of Queensland (Queensland Health) |
CASE NO.: | PSA/2022/1002 |
PROCEEDING: | Public Service Appeal - Fair Treatment Appeal - Application for longer period to start appeal |
DELIVERED ON: | 10 February 2023 |
HEARING DATE: MEMBER: | On the papers Merrell DP |
DATES OF WRITTEN SUBMISSIONS: | Respondent's written submissions filed on 31 January 2023 |
| ORDER: | The Appellant's application for a longer period to start her appeal is refused. |
| CATCHWORDS: | PUBLIC SERVICE - EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY - PUBLIC SERVICE APPEAL - Appellant employed by the State of Queensland as a Scientist in Queensland Health at Pathology Queensland - by Health Employment Directive No. 12/21 - Employee COVID-19 vaccination requirements, the Appellant was required to receive two doses of a COVID-19 vaccine by specific dates and to provide evidence of such vaccination - Appellant applied for an exemption - exemption not granted - Appellant sought internal review against decision not to grant an exemption - review decision confirmed earlier decision not to grant the Appellant an exemption - Appellant appealed against review decision - Appellant started appeal 17 days outside of the 21 day limitation period - consideration of relevant matters in respect of whether or not the discretion to allow the Appellant a longer period to start her appeal should be exercised in the Appellant's favour - application refused |
| LEGISLATION: | Health Employment Directive No. 12/21 - Employee COVID-19 vaccination requirements Industrial Relations Act 2016, s 564 |
CASES: | Forsyth-Stewart v State of Queensland (Department of Education) [2021] QIRC 395 Forsyth-Stewart v State of Queensland (Department of Education) [2022] ICQ 12 |
Reasons for Decision
Introduction
Ms Pamela Ogbonna is employed by the State of Queensland, through Queensland Health ('the Department'), as a Scientist in Pathology Queensland, specifically in Chemical Pathology.
By virtue of the Health Employment Directive No. 12/21 - Employee COVID‑19 vaccination requirements ('the Directive'), Ms Ogbonna was required to receive doses of a COVID-19 vaccine by particular dates and to provide evidence of such vaccination.
Ms Ogbonna applied for an exemption from the operation of the Directive. A decision was made that she would not be granted an exemption ('the exemption decision'). Ms Ogbonna sought an internal review of the exemption decision. The internal review was conducted. By review decision received by Ms Ogbonna on 17 October 2022, the exemption decision was confirmed ('the review decision').
By appeal notice filed on 24 November 2022, Ms Ogbonna appealed against the review decision.
By virtue of the combined effect of s 564(1) and s 564(3)(d) of the Industrial Relations Act 2016 ('the IR Act'), Ms Ogbonna had to start her appeal on or before 7 November 2022. As a consequence, Ms Ogbonna started her appeal 17 days out of time.
In her appeal notice, Ms Ogbonna did not acknowledge that she did not start her appeal within 21 days after she was given the review decision. Despite this, pursuant to s 564(2) of the IR Act, for Ms Ogbonna's appeal to proceed, it requires the exercise of the Commission's discretion to allow her to start her appeal within a longer period. Given Ms Ogbonna has started her appeal, I will take it that she has also made an application to start her appeal within a longer period.
This is my decision about whether or not I will allow Ms Ogbonna to start her appeal within a longer period.
Despite orders directing Ms Ogbonna and the Department to file and serve submissions about whether or not the Commission's discretion should be exercised to allow Ms Ogbonna to start her appeal within a longer period, Ms Ogbonna has made no such submissions. The Department filed and served submissions contending that the Commission's discretion should not be exercised to allow Ms Ogbonna to start her appeal within a longer period.
For the reasons that follow, I will not allow Ms Ogbonna a longer period to start her appeal.
The relevant provisions of the Industrial Relations Act 2016
Section 564(2) of the IR Act relevantly provides that on application made during or after the prescribed appeal period, the Commission may allow an appeal to be started within a longer period.
In Forsyth-Stewart v State of Queensland (Department of Education),[1] I set out the approach that I considered should be taken in respect of the Commission's discretion to allow an appellant a longer period in which to start an appeal.[2] In the appeal of that decision to the Industrial Court of Queensland, his Honour, Davis J, President, made no criticism of that approach.[3]
[1] [2021] QIRC 395.
[2] Ibid, [15]-[20].
[3] Forsyth-Stewart v State of Queensland (Department of Education) [2022] ICQ 12, [14]-[17] (Davis J, President).
I will consider whether I should allow Ms Ogbonna a longer period in which to start her appeal by adopting that same approach.
Length of the delay
The length of the delay is 17 days.
Such a delay is a significant delay.
Mr Ogbonna's explanation for the delay
Ms Ogbonna has given no reason for her delay.
I note that in the review decision, the decision maker informed Ms Ogbonna of her appeal rights to this Commission and of the 21 day limitation period.
Prejudice
The prejudice to Ms Ogbonna is obvious in that she would be prevented from appealing the review decision.
The Department would face the general presumption of prejudice, namely, having to defend an appeal started out of time.
Conduct of the Department
There is no indication of any conduct by the Department that tends to favour Ms Ogbonna being granted a longer period of time to start her appeal.
Merits of the proposed appeal
In her appeal notice, Ms Ogbonna stated:
I applied for a covid vaccine exemption on basis of my genuine held religious background which prohibits me from receiving the covid 19 vaccine. I provided all the relevant documents including proof from our religious head clearly stating the reasons why this vaccine does not align with our religious beliefs. My exemption was still denied
I also offered alternative work duties with PPE but my application was denied. I work in a laboratory and don't deal directly with patients, Covid 19 is also not a pandemic as of now and I'm more than willing to undergo a RAT test before commencing my shift. I'm request an external appeal on this matter
The Department made submissions as to why the review decision was fair and reasonable and that, as a consequence, Ms Ogbonna's prospects of success on appeal are low.
The Department submitted:
9. Ms Ogbonna's prospects of success is a relevant consideration as to whether she should be granted an extension of time to file her Appeal. The matters raised by Ms Ogbonna with respect to the vaccine not aligning with her religious views, requesting undertaking alternative duties, and her offer to wear PPE and undergo Rapid Antigen Testing (RAT) have already been extensively considered and determined in numerous public service appeals. None of the matters raised in Ms Ogbonna's Appeal have, to date, been found in favour of employees. In this regard:
a.As a Scientist working at Princess Alexandra Hospital, Ms Ogbonna is categorised within Group 2 under section 7.1 of HED 12/21, which covers employees employed to work in a hospital or other facility where clinical care or support is required. She was therefore subject to the mandatory vaccination requirements at clause 8.1 of the HED 12/21.
b.Dr Rosengren considered Ms Ogbonna's exemption application on the basis of her religious beliefs. Ms Ogbonna's religious beliefs were acknowledged. However, Dr Rosengren considered there was no less restrictive means other than vaccination which would sufficiently ensure the safety of Ms Ogbonna, other staff members and patients, as well as ensure the ongoing readiness of the health system to respond to the pandemic.
c.Ms Ogbonna is not entitled to receive an exemption from the HED 12/21 on grounds of her religious beliefs. Ultimately, the decision maker found that considerations about workplace and community safety had to take precedence over Ms Ogbonna's religious beliefs.
d.With respect [sic] Ms Ogbonna's submissions in the Appeal such as wearing PPE and taking RAT tests instead of receiving a COVID-19 vaccination, she is not entitled to determine how she will comply with the HED 12/21. HED 12/21 also did not provide for exceptions in respect of employees who return negative COVID-19 tests.[4]
[4] Citations omitted.
I have had regard to Ms Ogbonna's material, annexed to her appeal notice, about her religious beliefs.
As I understand that material, Ms Ogbonna's religious beliefs are that they prohibit her from receiving a vaccine of the kind the subject of the Directive. The review decision maker did not dispute those religious beliefs.
The reasons given by the review decision maker to confirm the exemption decision were that considerations about workplace and community safety had to take precedence over Ms Ogbonna's religious beliefs, given that Ms Ogbonna is employed as a Scientist in Chemical Pathology (as part of Pathology Queensland) which requires her to attend the Princess Alexandra Hospital where clinical care or support is provided.
In the absence of full argument about this issue, my assessment is that Ms Ogbonna's prospects of success are even and that this issue is a neutral consideration.
Considerations of fairness as between the appellant and other persons in a like position
This issue was not addressed by the Department.
Ms Ogbonna should not be allowed a longer period to start her appeal
In exercising discretion under s 564(2) of the IR Act, the fundamental objective is to do justice as between the parties.
In my view, this is not a case where justice requires that Ms Ogbonna be given a longer period of time in which to start her appeal. There are two reasons for this.
First, a delay of 17 days is a significant delay.
Secondly, Ms Ogbonna has not taken any step to try to articulate an explanation for her delay. The 21 day limitation period must be respected and Ms Ogbonna has not provided any explanation for her 17 day delay.
Conclusion
For the reasons I have given, I will not allow Ms Ogbonna a longer period to start her appeal.
Order
I make the following order:
The Appellant's application for a longer period to start her appeal is refused.
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