In Fawcett v State of Queensland (Queensland Ambulance Service) [2022] QIRC 171 (20 May 2022) the applicant asked the Queensland Industrial Relations Commission to order Queensland Ambulance (QAS) not to proceed with disciplinary proceedings whilst an appeal on a related matter was before the Commission.

The facts

Mr Fawcett was (or is) an Advanced Care Paramedic employed by QAS. He was directed to obtain a COVID-19 vaccination. He sought an exemption from that requirement but the application for an exemption was refused. On 23 March 2022 he received a letter that confirmed he was required to obtain the vaccination within 7 days (ie by 30 March or 1 April).  That letter also said (at [3]) ‘that he may lodge an appeal of the decision in the Industrial Registry within 21 days of receiving the decision …’ (ie by 13 April). Mr Fawcett lodged an appeal on 8 April – ie more than 7 days after being given the direction but within the 21 days allowed for the appeal. On the same day that he lodged the appeal, Mr Fawcett received notice from QAS that they were commencing disciplinary proceedings on the basis that he had not provided evidence that he had received the required vaccination.

The QIRC wrote to the parties asking whether an order should be made imposing a ‘stay’ on the direction to obtain a vaccination pending the outcome of the appeal. QAS responded opposing the idea of a stay but did not tell the QIRC that they were taking action against Mr Fawcett.  The Commission was not told of those proceedings until the matter was mentioned on 26 April (see [6]-[12]).

Both Mr Fawcett and the Commission noted the apparent discrepancies in the time frames ie he had 21 days to appeal the decision rejecting his application for an exemption but had to get the COVID vaccination within 7 days ([46]).  The matter for the Commission was described at [49]):

The QAS’s requirement that Mr Fawcett show cause as to why a disciplinary finding should not be made against him in circumstances where the particulars of the allegation relied on by the QAS include the decision which is the subject of this appeal before the Commission. It is that decision [ie the decision to require him to show cause] that Mr Fawcett contends is not fair and reasonable and should be set aside.

The Commission was concerned that if QAS did not suspend the disciplinary proceedings it would disadvantage Mr Fawcett and embarrass the Commission. It would be pointless if the Commission allowed Mr Fawcett’s appeal against the refusal to grant an exemption, but he had already been dismissed for failing to comply with an order to get the vaccination. In those circumstances he may have an action for unfair dismissal but all of that could be avoided by simply waiting for the Commission’s decision on Mr Fawcett’s appeal.          Ultimately however, on what many might describe as a ‘technicality’ the Commission did not order a stay of proceedings.

Commissioner Hartigan said there were two components to the QAS decisions. The first was the decision to not allow Mr Fawcett an exemption. That decision was made on 23 March, and he had 21 days to appeal that. The second was that on 23 March he was also given a direction that required him to obtain a vaccination. He was required to do that by 30 March. He did not, nor had he lodged his appeal. He lodged his appeal on 8 April. That means that on 8 April he was at least prima facie in breach of the direction to get the vaccine. The Tribunal said (at [52]) “If a stay was to have been granted, then it should have been issued prior to the expiration of the seven days which have now passed.”

Even though Commissioner Hartigan did not issue a stay she had some strong words for QAS. At [53]-[55] she said (emphasis added):

However, my conclusion that there is no practical utility in granting a stay at this time, should not be construed in such a way so as to conclude that the concerns articulated in these reasons should not be given any weight or proper consideration. I am concerned that the submissions made by the QAS fail to have regard to the potential substantive and procedural fairness issues that might arise in circumstances where the QAS relies on a decision, which is the subject to an appeal before the Commission, to particularise an allegation with respect to a show cause process.

Progressing in such a manner has the potential to result in outcomes which might be considered, at the very least, unfortunate. To have the two matters proceed in parallel may result in their being outcomes that are inconsistent with each other. For example, if the Commission were to, on the appeal, set the decision aside, that may potentially render any disciplinary finding and/or proposed disciplinary action as unfair and/or unreasonable.

Such an outcome is avoidable, however, by the QAS simply pausing the show cause process whilst awaiting the outcome of the public service appeal.

The ball is now in the court of the QAS.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Associationand the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.