Stys v State of Queensland (Queensland Ambulance Service)
[2022] QIRC 415
•28 October 2022
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Stys v State of Queensland (Queensland Ambulance Service) [2022] QIRC 415 |
PARTIES: | Stys, Hannah v State of Queensland (Queensland Ambulance Service) |
CASE NO: | PSA/2022/579 |
PROCEEDING: | Public Service Appeal – Appeal against a suspension without pay decision |
DELIVERED ON: | 28 October 2022 |
MEMBER: HEARD AT: | Hartigan IC On the papers |
ORDER: | Pursuant to s 562A(3)(b)(iii) of the Industrial Relations Act 2016, the Appellant's appeal will not be heard. |
| CATCHWORDS: | PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL – appeal against a suspension without pay decision – where appellant employed as an advanced care paramedic in the Queensland Ambulance Service ('QAS') – where QAS issued direction on 13 September 2021 and a further direction 31 January 2022 requiring certain requiring certain employees to receive a first dose and a second dose of a COVID-19 vaccine by 27 February 2022 unless the employee has a valid exemption – where appellant applied for exemption from complying with requirement to be vaccinated – where respondent rejected appellant's exemption application and directed appellant to receive a |
LEGISLATION: CASES: | Ambulance Service Act 1911 (Qld) s 18M, s 41 QAS Human Resource Procedure – COVID-19 Vaccination Requirements QAS HR Policy Employee COVID-19 Vaccination Requirements cl 1, cl 2, cl 3 and cl 5 Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018). |
Reasons for Decision
Introduction
Ms Hannah Stys was employed by the State of Queensland (Queensland Ambulance Services) ('the QAS'), in the position of Advanced Care Paramedic.
On 13 September 2021, the QAS issued the Code of Practice and the QAS Human Resource Procedure – COVID-19 Vaccination Requirements ('the QAS HR Procedure’), which required all existing and prospective QAS employees who fall within certain high-risk groups to be vaccinated against COVID-19, unless the employee has a valid exemption. Relevantly, Ms Stys employment as an Advanced Care Paramedic falls within a high-risk group of QAS employees that are required to be vaccinated against COVID-19.
The QAS HR Procedure provides that existing employees who fall within the high-risk groups must have received the first dose of a COVID-19 vaccine by 30 September 2021 and a second dose of a COVID-19 vaccine by 31 October 2021, unless the employee has a valid exemption.
On 30 September 2021, Ms Stys applied for an exemption to the mandatory vaccine requirements, on the basis of 'other exceptional circumstances'. Ms Stys attached two letters from Kennedy Spanner Lawyers dated 27 and 29 September 2021 in support of the application. These letters detailed concerns regarding the risk associated with COVID- 19 vaccinations generally, the lack of risk assessment and concerns regarding the impact on human rights.
On 31 January 2022, the QAS HR Procedure was replaced by the QAS HR Policy - Employee COVID-19 Vaccination Requirements ('the QAS HR Policy'). After the implementation of the QAS HR Policy, the QAS wrote to Ms Stys providing her an opportunity to provide any further submissions or material to support her application. Ms Stys did not respond and so her application was considered with the materials already provided.
By letter dated 17 February 2022, the QAS determined to refuse Ms Stys' exemption application. On 1 March 2022, Ms Stys requested an internal review of the decision to refuse her exemption application stating that she wanted the QAS to address the lawfulness of the QAS HR policy and whether there was evidence of any risk assessments conducted. In support of her request, Ms Stys attached a seventy-seven (77) page list of peer reviewed medical papers.
On 25 March 2022, the QAS advised Ms Stys that it had confirmed the decision dated 17 February 2022 and that her application for exemption from compliance with the QAS HR Policy on the basis of other exceptional circumstances had been denied. The QAS directed Ms Stys to receive the required dose of a COVID-19 vaccine and provide written confirmation that she had received the required dose within seven (7) days of receipt of the decision ('the direction'). The QAS further advised Ms Stys that should she fail to follow the direction, she may be liable for disciplinary action pursuant to s 18A of the Ambulance Service Act 1991 (Qld) ('the Ambulance Service Act').
On 13 April 2022, Ms Stys filed an appeal against the decision to refuse her application for an exemption. A decision with respect to that appeal was issued by Commissioner McLennan on 13 July 2022.[1] That decision confirmed the decision to refuse Ms Stys' application for an exemption.
[1] Stys v State of Queensland (Queensland Ambulance Service) QIRC [2022] 265.
Separately, by letter dated 13 April 2022, the QAS invited Ms Stys to show cause in relation to the allegation that she failed to follow the QAS HR Policy ('the allegation'), which required employees to have at least two doses of a COVID-19 vaccine by 27 February 2022.
During the show cause process, the QAS suspended Ms Stys from duty on normal renumeration in accordance with s 18M(1) of the Ambulance Service Act. The QAS also advised Ms Stys that they were considering suspending her without pay and provided Ms Stys with seven (7) days to respond as to why she should not be suspended without pay.
On 21 April 2022, Ms Stys responded as to why she should not be suspended without pay. In her response, Ms Stys stated that the QAS were still yet to address her concerns regarding the COVID-19 vaccination and that she had not been given the opportunity to 're-educate or seek alternative employment'. Addressing the suspension without pay more specifically, Ms Stys stated that the decision to suspend her without pay would cause her 'incomprehensible financial hardship'.
By letter dated 27 April, the QAS[2] issued a decision that Ms Stys be suspended from duty without normal renumeration up to and including 8 July 2022 ('the decision').
[2] A/Deputy Commissioner Zsombok.
By notice of appeal filed on 18 May 2022, Ms Stys appeals the decision suspending her without normal renumeration dated 27 April 2022. Ms Stys relies on the following matters in support of her appeal:
- QAS has caused me significant levels of stress and anxiety over the last six months specifically in regards to my career, which has effectively been 'on hold' throughout this period.
- QAS does not appear to have taken into consideration the financial hardship that suspending me without normal renumeration has resulted in and the impacts this has had on my personal well-being.
- QAS has failed to recognise that due to the uncertainty, stress, anxiety I have been subjected to, I have not been able to re-skill, re-educate or seek alternative employment in order to support my family or prepare myself for my future outside of QAS.
- QAS has yet to provide formal conclusion or outcome regarding my employment with QAS.
…
On 24 May 2022, the Commission issued directions to the parties in relation to the provision of written submissions in support of their position with respect to the appeal. Ms Stys did not file any written submissions.
On 16 September 2022, the Industrial Registry received email correspondence from the QAS advising that Ms Stys is no longer an employee and therefore does not have an entitlement to pursue her appeal.
By email correspondence dated 16 September 2022, the Industrial Registry requested Ms Stys to advise the Commission as to whether she wished to proceed with the appeal. No reply was received from Ms Stys.
On 23 September 2022, further directions were issued requiring the parties to make additional submissions in relation to the employment status of Ms Stys and the impact of that on the appeal. No submissions were filed by Ms Stys.
The appeal is made pursuant to s 197 of the Public Service Act 2008 (Qld) ('the PS Act'), which provides that an appeal under Ch. 7, Pt. 1 of the PS Act is to be heard and determined under Ch. 11 of the Industrial Relations Act 2016 (Qld) ('the IR Act') by the Queensland Industrial Relations Commission.
Sections 562B(2) and (3) of the IR Act, which commenced operation on 14 September 2020, replicates the now repealed ss 201(1) and (2) of the PS Act.[3] Section 562B(3) of the IR Act provides that the purpose of an appeal is to decide whether the decision appealed against was fair and reasonable. Accordingly, the issue for my determination in this appeal is whether the decision is fair and reasonable.
[3] See the Public Service and Other Legislation Amendment Act 2020 (Qld).
I must decide the appeal by reviewing the decision appealed against. The word 'review' has no settled meaning and, accordingly, it must take its meaning from the context in which it appears.[4] An appeal under Ch. 7, Pt. 1 of the PS Act is not a re-hearing but, rather, involves a review of the decision arrived at and the decision-making process associated with it.[5]
[4] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261 (Mason CJ, Brennan and Toohey JJ).
[5] Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018).
However, before I consider the substance of the appeal, I must be satisfied that the appeal is one which is able to be heard.
Jurisdictional objection
The QAS raise the following jurisdictional objection to the appeal as follows:
14. As Ms Stys is no longer a QAS employee, the decision to suspend her without pay is no longer in effect.
15. Under section 194(1)(bb) of the Public Service Act 2008, an appeal may be made against a decision to suspend a public service employee without entitlement to normal renumeration under s 137 of the PS Act.
16. Ms Stys is not a public service employee, nor was she suspended under s 137 of the PS Act: she was suspended under s 18M(1) of the AS Act.
17. However, the QAS is a declared a public service office and Chapter 7 of the PS Act applies to employees of QAS as if they were public service employees: Schedule 6 of the Public Service Regulations 2018.
…
Section 194(1)(bb) of the PS Act relevantly identifies the decisions against which appeals may be made as follows:
194 Decisions against which appeals may be made
(1)An appeal may be made against the following decisions—
(bb)a decision to suspend a public service employee without entitlement to normal renumeration under s 137 (a suspension without pay decision);
…
Section 18M(1) of the Ambulance Service Act 1991 provides:
18M Suspension of service officer liable to discipline
(1)The chief executive may suspend a service officer from duty if the chief executive reasonably believes the officer is liable to discipline under this Act.
(2)The chief executive officer may cancel the suspension at any time.
…
Schedule 6 of the Public Service Regulation 2018 identifies that the Queensland Ambulance Service is declared to be a public service office as follows:
1Declared public service office
The Queensland Ambulance Services established under the Ambulance Service Act 1991, section 3A is declared to be a public service officer.
…
Section 562A(3) of the IR Act provides for circumstances where the Commission may decide not to hear a particular public service appeal as follows:
562A Commission may decide not to hear a particular public service appeals
(3)The commission may decide it will not hear a public service
appeal against a decision if—
(a) the appellant has made an application to a court or tribunal relating to the decision, whether or not the application has been fully decided; or
(b) the commission reasonably believes, after asking the appellant to establish by oral or written submissions that the appellant has an arguable case for the appeal, that the appeal—
(i) is frivolous or vexatious; or
(ii) is misconceived or lacks substance; or
(iii) should not be heard for another compelling reason.
…
Relevantly, the subject matter of this appeal relates to the decision to suspend Ms Stys from duty without renumeration. The powers of the Commission, in respect of the orders it may make in relation to this appeal, include the power to confirm the decision appealed against or to set aside the decision appealed against and substitute it with another decision or return the matter to the decision maker.
I consider that the factual progression of this matter, that included the show cause process which resulted in the termination of Ms Stys employment, results in there being limited utility in me hearing this appeal.
Having regard to the history of the matter, the subject matter of the decision subject to this appeal and the termination of Ms Stys employment together with the limited effect (given the termination of the employment) of any potential orders I may make, it is my view that I should exercise my discretion and not hear Ms Stys' appeal.
Ms Stys, although given the opportunity, did not make any submissions in support of the appeal nor any submissions to resist the QAS's objection to me hearing the appeal.
Whilst, I have considered the consequences on Ms Stys if I refuse to hear the appeal, including that Ms Stys will lose the opportunity to seek the relief sought in the notice of appeal, I consider that the reasons referred to above are compelling reasons as to why I should decline to hear the appeal.
Order
I make the following order:
Pursuant to s 562A(3)(b)(iii) of the Industrial Relations Act 2016, the Appellant's appeal will not be heard.
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