In an earlier post I reported on the decision in Johnston v Carroll (Commissioner of the Queensland Police Service); Witthahn v Wakefield (Chief Executive of Hospital and Health Services and Director General of Queensland Health) [2024] QSC 2 where Martin SJA held that directions requiring Queensland ambulance and Queensland police officers to be vaccinated against COVID-19 had been improperly made (see Covid directions to QAS and QPS employees held to be unlawful (February 27, 2024)).  In that post I said:

The directions issued to QPS and QAS were both invalid but for different reasons.

The QPS Commissioner failed to give proper consideration to human rights that would be affected by the direction as she was required to do by the Human Rights Act 2019 (Qld).

The Director General of Queensland Health had not established that the direction was ‘reasonable’ in the context of the employment arrangements for QAS.

I also said:

At the time the matter came before the court the relevant directions had all been withdrawn. The court therefore could not, and did not need to, make an order terminating the directions.  Martin SJA noted that it was theoretically possible that QAS or QPS would still seek to take disciplinary action against a member who had not complied with their directions when they were in place. Whilst this would be ‘unusual’ it ‘remains a possibility’ so he would make orders to prohibit any further action to enforce the directions.

There are no orders with respect to employees who may have been disadvantaged by the directions for example those who lost their job for non-compliance. As His Honour said his finding was that the orders were unlawfully made, not that they were ‘invalid’. The inference is that they were effective whilst they were in place. If they were still in place the court would order their withdrawal but as they are no longer in place that is not necessary. The orders are that the QAS and QPS can take no further action against the applicant employees who refused to be vaccinated but there is no order to allow former employees to be reemployed by either service. 

The impact of this decision was raised, unsuccessfully, in Williams v State of Queensland (Queensland Ambulance Service) [2024] QIRC 294 (12 December 2024). Mr Williams was a paramedic employed with an unblemished record for 22 years ([1]).  He resigned rather than face disciplinary action for failing to comply with the COVID direction that was later found to be unlawful (ie not made according to law).   20 months and 1 day after resigning he sought leave to bring a case arguing that he had in fact been dismissed and that the dismissal was unfair.  To bring this case he needed leave from the Industrial Relations Commission as the time limit to bring an unfair dismissal case is 21 days ([2]).

His argument was that although he formally resigned, it should be regarded as a dismissal as he was facing disciplinary proceedings and did not want to leave with a blemish on his service record.

Industrial Commissioner Caddie said (at [4]):

Mr Williams argues his resignation was not voluntary. In his view termination was the inevitable outcome of his refusal to comply with the QAS COVID Direction, combined with his impaired health caused by PTSD and his inability to cope with the disciplinary process. He explains the delay is due to waiting for the outcome of a Supreme Court challenge to the Direction, in combination with his poor health. The decision in Johnston & Ors v Carroll provides his basis for now making his claim that the termination was harsh, unjust or unreasonable.

The Commission refused to allow extra time to file the application finding that Mr Williams had resigned, not been dismissed.

One reason for refusing the extension of time was finding that waiting to see what happened in another case is not a good enough reason to file an application on time.  Mr Williams could have made his application within 21 days and then sought to adjourn the proceedings pending the outcome in Johnston’s case.   As for the claim that he was unable to bring the claim earlier due to his treatment for PTSD, there was insufficient evidence. Mr Williams relied on a letter written by his doctor responding to questions from a claims assessor.  It was not written for the Commission, nor did it address issues such as his capacity to take part in proceedings. Commissioner Caddie said (at [26]):

I accept that Mr Williams has serious and ongoing medical conditions, and that at the time of Dr Persley’s letter his condition had deteriorated. However, the letter was written for a different purpose. It does not confirm that Mr Williams’ health was the reason he could not lodge his application within 21 days, or for the nine months leading up to the letter, or for a significant further period of time following the letter. 

Finally, the Commission had to consider whether the application demonstrated real prospects of success. There is no point allowing an applicant leave to file an application out of time when the application is unlikely to succeed.   At [34] Commissioner Caddie quoted from the decision Herwin v Flexihire Pty Ltd (1995) 149 QGIF 709 where Mackenzie P said:

I should reinforce that descent into detail and fine distinctions in relation to the evidence is not appropriate upon the hearing of an application for leave to apply out of time but if it is clear that the matter must fail as a matter of principle on the best view of the facts from the applicant’s point of view, the futility of the proceedings is a fact which may be taken into account. …

On the question of whether Mr Williams had been dismissed or resigned, the Commission noted to the extensive correspondence between him and Mr Drew Hebbron, Assistant Commissioner, Gold Coast Region where the Assistant Commissioner invited Mr Williams to reconsider his position, to take advice and to allow further time for him to do so.  At [41]-[42] and [50] Commissioner Caddie said:

Mr Williams asserts he was forced to resign due to his imminent dismissal. I agree with QAS that this assertion is misconceived.

Objectively, no disciplinary findings had been made at the time Mr Williams emailed his initial resignation on 7 July 2022, or when he ultimately confirmed he was resigning on 21 July 2022. As there were no disciplinary findings, there was also no decision on disciplinary action arising from those findings. The process was at its start, with the issuing of the first show cause notice. No dismissal was determined by QAS, either imminent or otherwise…

The material weighs in favour of Mr Williams having resigned. Mr Williams has not positively demonstrated that it is more probable than not that he was dismissed or constructively dismissed. On that basis he has no standing to bring the substantive application, and the Commission has no jurisdiction to hear it. This finding is fatal to the prospects of his substantive case.

Notwithstanding that, legally, that could have been the end of the matter, the Commission continued to deal with the argument that the decision in Johnston meant that the disciplinary proceedings that had been commenced, but not finalised, were unlawful and would support a claim for unfair dismissal if Mr Williams had in fact, been dismissed.

Commissioner Caddie said (at [54])

The final order made by Martin J in Johnston as it relates to the QAS Direction was a declaration and injunction… The declaration and injunction issued operated to protect the applicants in those proceedings from any liability arising from the Direction. It did not, and could not, have any effect on any termination decisions following from the Direction prior to the Johnston decision, as such would be moot – the terminations had already occurred a significant amount of time before the Johnston decision was issued.

Discussion

It is correct that the decision in Johnston did not have any retrospective effect.   As I said in my earlier post:

At the time the matter came before the court the relevant directions had all been withdrawn. The court therefore could not, and did not need to, make an order terminating the directions.  Martin SJA noted that it was theoretically possible that QAS or QPS would still seek to take disciplinary action against a member who had not complied with their directions when they were in place. Whilst this would be ‘unusual’ it ‘remains a possibility’ so he would make orders to prohibit any further action to enforce the directions.

There are no orders with respect to employees who may have been disadvantaged by the directions for example those who lost their job for non-compliance. As His Honour said his finding was that the orders were unlawfully made, not that they were ‘invalid’. The inference is that they were effective whilst they were in place… The orders are that the QAS and QPS can take no further action against the applicant employees who refused to be vaccinated but there is no order to allow former employees to be reemployed by either service. 

In a subsequent addition to that post I said:

The outcome of this case will have little bearing for others except perhaps those who were dismissed for failing to comply with these directions.

Even if the orders in Johnston did not have a retrospective effect, one hopes that QAS might take the view that those who had been dismissed were dismissed under a flawed process and look sympathetically on applications to return. Commissioner Caddie noted at [30]:

… since the repeal of the Direction effective 25 September 2023, former employees who separated due to the Direction have been able to reapply for any role within QAS for which they are suitable and medically fit. This applies to Mr Williams.

Dismissed employees have not been automatically reinstated, or offered their position back, nor can they bring an unfair dismissal claim given the very short time allowed – 21 days under Industrial Relations and Fair Work laws – but they can reapply to QAS for appointment. 

Conclusion

Following the repeal of the COVID-19 vaccination directions (which happened before the decision in Johnston) former employees of QAS have been ‘able to reapply for any role within QAS for which they are suitable and medically fit’.  The decision in Johnston, finding that the COVID-19 directions were not lawfully made does not have a retrospective effect; it does not make any dismissals for failure to comply with the COVID-19 directions of no effect.  That means employees who were dismissed are not automatically reinstated to their position and it is too late to now bring an unfair dismissal case.

In Mr William’s case, however, the result did not turn on the effect of the decision in Johnston. His matter was resolved with the finding that Mr Williams was not ‘dismissed for failing to comply with these directions’, rather he resigned. 

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), Natural Hazards Research Australia, NSW Rural Fire Service Association and 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.

This blog is a general discussion of legal principles only.  It is not legal advice. Do not rely on the information here to make decisions regarding your legal position or to make decisions that affect your legal rights or responsibilities. For advice on your particular circumstances always consult an admitted legal practitioner in your state or territory.