Benjamin v State of Queensland (Department of Education) [2026] QIRC 218

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Benjamin v State of Queensland (Department of Education) [2026] QIRC 218 PARTIES: Benjamin, Melanie (Appellant) v State of Queensland (Department of Education) (Respondent) CASE NO: PSA/2022/1025 PROCEEDING: Public Sector Appeal – Disciplinary Decision DELIVERED ON: 30 June 2026 MEMBER: HEARD AT: ORDER: Knight IC On the papers 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 SECTOR APPEAL – appeal against a disciplinary decision – where Appellant is employed by the Respondent as a Head of Department (Curriculum) – where Employment Direction 1/22 – COVID-19 Vaccinations required the Appellant to receive the first dose of a COVID- 19 vaccine by 17 December 2021 and a prescribed number of doses of a COVID-19 vaccine by 23 January 2022 – where the Direction required the appellant to provide evidence of vaccination by 24 January 2022 – where Appellant did not comply with the Direction – where Respondent imposed a disciplinary penalty of a reprimand and a monetary penalty for a period of 18 weeks – decision fair and reasonable. -- 1 of 26 -- 2 LEGISLATION AND INSTRUMENTS: Employment Direction 1/22 – COVID-19 Vaccinations (10 March 2022) Directive 14/20: Discipline Industrial Relations Act 2016 (Qld) s 562B, s 562C Public Service Act 2008 (Qld) s 187(1)(d), s 194 Public Sector Act 2022 (Qld) s 91(1)(h), s 92, s 134, s 289, s 324 CASES: Allison v State of Queensland (Department of Education) [2022] QIRC 152 Borough v State of Queensland (Department of Environment and Science) [2022] QIRC 357 Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245 Carr v State of Queensland (Department of Education) [2022] QIRC 188 Colebourne v State of Queensland (Queensland Police Service) (No 2) [2022] QIRC 016 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 Currie (Murray) v State of Queensland (Department of Education) [2022] QIRC 269 Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018) Gorry v State of Queensland (Department of Education) [2022] QIRC 196 Kioa v West [1985] HCA 81; (1985) 159 CLR 550 -- 2 of 26 -- 3 Nicholas v State of Queensland (Department of Education) [2022] QIRC 157 Nuske v State of Queensland (Department of Education) [2023] QIRC 199 O'Hearn v State of Queensland (Queensland Health) [2023] QIRC 283 Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252 Prentis v State of Queensland (Department of Education) [2022] QIRC 212 Radanovic v State of Queensland (Department of Education) [2024] QIRC 225 Re Minister for Immigration and Multicultural Affairs; Ex Parte Lam (2003) 214 CLR 1 Re Minister for Immigration and Multicultural Affairs; Ex Parte Lam (2003) 214 CLR 1 Sainty v State of Queensland (Queensland Health) (No. 2) [2023] QIRC 78 Schimke v State of Queensland (Department of Education) [2022] QIRC 136 Stacey v State of Queensland (Department of Education) [2024] QIRC 220 Tadeo v State of Queensland (Department of Education) [2022] QIRC 177 Thorley v State of Queensland (Department of Education) [2022] QIRC 133 Tilley v State of Queensland (Queensland Health) [2022] QIRC 22 Tribe v State of Queensland (Department of Education) [2022] QIRC 203 XY v State of Queensland (Department of AB) [2026] QIRC 178 -- 3 of 26 -- 4 Reasons for Decision [1] Ms Melanie Benjamin is employed by the State of Queensland as a Head of Department (Curriculum) at Glenalla State School through the Department of Education ('the Department').1 [2] By letter dated 1 August 2022, Ms Anne Crowley, Assistant Director-General, Human Resources, substantiated the following allegation:2 You have contravened, without reasonable excuse, Clause 5 of the Direction, by failing to receive the prescribed doses of a COVID-19 vaccine and/or show evidence of having received the prescribed doses of a COVID-19 vaccine in line with Clause 6 of the Direction. [3] By letter dated 5 December 2022, following a formal show cause process, Ms Crowley informed Ms Benjamin of the decision to impose the disciplinary action of a monetary penalty of $84.46 salary deduction for a period of 18 weeks and a reprimand ('the discipline decision').3 [4] By appeal notice filed 20 December 2022, Ms Benjamin appealed the discipline decision pursuant to s 194 of the Public Service Act 2008 (Qld) ('PS Act 2008').4 [5] During the course of the Appeal, the file was placed in abeyance at the request of Ms Benjamin on several occasions and for a lengthy period, pending the outcome of several other Appeals before the Commission and in circumstances where Ms Benjamin sought additional time to consider her position. Background [6] In accordance with cl 5 of the Employment Direction 1/22 – COVID-19 Vaccinations dated 10 March 2022 ('the Direction' or 'Direction 1/22'), Ms Benjamin was required to:5 • receive the first dose of a COVID-19 vaccine by 17 December 2021; • receive the prescribed number of doses of a COVID-19 vaccine by 23 January 2022; and • provide evidence of such vaccination to the Department by 24 January 2022. 1 Respondent's Submissions filed 6 October 2023 ('Respondent's Submissions'), [3]. 2 Respondent's Submissions (n 1), Attachment 5 'Letter from Ms Anne Crowley to Ms Melanie Benjamin dated 1 August 2022' ('Disciplinary Findings Decision Letter'). 3 Respondent's Submissions (n 1), Attachment 11 'Letter from Ms Anne Crowley to Ms Melanie Benjamin dated 5 December 2022' ('Disciplinary Action Decision Letter'). 4 Public Service Act 2008 (Qld) ('PS Act 2008'). 5 Employment Direction 1/22 – COVID-19 Vaccinations dated 10 March 2022. -- 4 of 26 -- 5 [7] It is not in dispute that Ms Benjamin was required to comply with the Direction, nor is it disputed that Ms Benjamin chose not to receive a COVID-19 vaccination.6 [8] On 10 January 2022, Ms Benjamin was notified by Ms Genevieve Gillies-Day, Executive Director, People and Corporate Services, of her decision to suspend Ms Benjamin from duty on normal remuneration taking effect from 20 January 2022.7 [9] Ms Benjamin was subsequently suspended from duty without normal remuneration from 27 January 2022 to 30 June 2022.8 [10] On 10 June 2022, Mr David Miller, Executive Director, wrote to Ms Benjamin inviting her to respond to an allegation that she had contravened, without reasonable excuse, cls 5 and 6 of the Direction. On 22 June 2022, Ms Benjamin responded to the allegation stating she had various concerns about the vaccinations including the potential danger to her health, as she has rheumatoid arthritis which 'may' be a contraindication with the vaccine.9 In earlier correspondence Ms Benjamin advised that 'for my personal safety I am not prepared at this time to take any of the vaccines currently available in Australia'.10 [11] Ms Benjamin did not provide the Department with any medical evidence to support her submissions or in respect of her health and safety.11 [12] On 1 August 2022, Ms Crowley made disciplinary findings against Ms Benjamin, namely:12 You have contravened, without reasonable excuse, Clause 5 of the Direction, by failing to receive the prescribed doses of a COVID-19 vaccine and/or show evidence of having received the prescribed doses of a COVID-19 vaccine in line with Clause 6 of the Direction. [13] Within this decision, Ms Crowley proposed a disciplinary penalty of a reduction in remuneration from classification band H01-02 to H01-01 for a period of 20 weeks (at which time Ms Benjamin would automatically revert to her previous increment), and a reprimand.13 Ms Benjamin did not appeal Ms Crowley's findings. [14] Ms Benjamin responded to the proposed disciplinary action on 5 August 2022. Within her response, Ms Benjamin submitted that no further action should be taken against her, or at worst, a reprimand only.14 6 Respondent's Submissions (n 1), [3]. 7 Respondent's Submissions (n 1), [4]. 8 Respondent's Submissions (n 1), [4]. 9 Respondent's Submissions (n 1), [8]. 10 Respondent's Submissions (n 1), Attachment 2 'Response to Show Cause Notice re suspension without pay dated 11 January 2022', 1. 11 Respondent's Submissions (n 1), [5]. 12 Disciplinary Findings Decision Letter (n 2), 1. 13 Disciplinary Findings Decision Letter (n 2), 3. 14 Respondent's Submissions (n 1), Attachment 6 'Response to Show Cause Notice re proposed disciplinary action', [18]. -- 5 of 26 -- 6 [15] Subsequent correspondence issued to Ms Benjamin on 21 October 2022 revoked the earlier proposed disciplinary action of a reduction from H01-02 to H01-01, and instead, after considering the administrative viability of the earlier disciplinary action, proposed a revised disciplinary monetary penalty of $84.46 to be deducted from Ms Benjamin's periodic remuneration payments for a period of 18 weeks, and a reprimand.15 [16] Within its submissions, the Department explained that a revised disciplinary penalty was required in circumstances where the H0-01 classification level was being removed from the pending replacement Certified Agreement and it would not have been possible to reduce Ms Benjamin's salary classification in the manner that was initially proposed.16 [17] In response to the revised proposed disciplinary action Ms Benjamin reiterated her earlier apprehensions regarding the vaccine and her health concerns. Ms Benjamin also claimed that sufficient disciplinary action had already been imposed, including loss of pay and adverse effects on her life, encompassing stress and anguish.17 [18] Ms Benjamin filed a new appeal relevant to the decision made by Ms Crowley on 5 December 2022, containing the revised disciplinary decision. The appeal was then held in abeyance for some time at Ms Benjamin's request. The disciplinary penalty decision [19] The decision relevantly provides: I have considered very carefully the submissions you make with respect to the proposed disciplinary action. There is nothing in the submissions made by you that lead me to consider the imposition of a disciplinary action is not a reasonably appropriate and proportionate outcome. In reach my decision on the disciplinary action to be taken, I have had regard to the following: • The disciplinary finding against you is serious. It is reasonable for the department, as your employer, to expect that you comply with lawful and reasonable directions. Such an expectation is fundamental to the employment relationship, and your failure to comply is damaging to the trust and confidence placed in you. • As a public servant, you are in a position of privilege and trust, and there is a reasonable public and employer expectation that you comply with directions arising in response to a serious public health matter. Employment Direction 1/22 – COVID-19 Vaccinations (Direction) was issued as part of the department's response to the public health order, declaring a public health emergency. • The department reasonably expected that you were aware of your obligations to comply with the Direction, as it had been extensively communicated to employees from the time the Direction was announced. 15 Respondent's Submissions (n 1), [13]. 16 Respondent's Submissions (n 1), [14]. 17 Respondent's Submissions (n 1), Attachment 9 'Response to Show Cause Notice re revised proposed disciplinary action', 1-7. -- 6 of 26 -- 7 • While I note your submissions, I am satisfied that you have not provided an explanation, or information regarding extenuating or mitigating circumstances that leads me to believe that the disciplinary action is unreasonable in the circumstances. • Your conduct in failing to comply with the Direction posed a risk to the health and safety of your co-workers, students and members of the public, which was mitigated only by the steps taken by the department to suspend you from duty. • The disciplinary action reflects the seriousness of the matter, but as you remain an employee of the department, affords you the opportunity to continue to perform your duties, and display modified behaviour, by complying with direction in future. • I acknowledge that the disciplinary action will have a financial impact on you. However, I consider that the seriousness of the disciplinary action and its impact on you is proportionate to the seriousness of your conduct. • I acknowledge that the implementation of the Direction, and its resultant impact may have been a difficult period for you. I acknowledge the personal impact these processes can have on employees; however, I remain of the view that disciplinary action is appropriate, in circumstances where I have found that you have breached the Direction. • I note that you were suspended without pay for a period of time while the Direction was in place. For clarity, suspension and suspension without remuneration are not disciplinary action pursuant to section 188 of the Act. While I have noted that you were suspended without remuneration and accept that this would likely have had a financial impact on you, I remain of the view hat the disciplinary action is reasonable and proportionate to your conduct in this matter. • I do not consider that there is any other disciplinary action which adequately reflects the seriousness with which I view your conduct in this matter. [20] Ms Crowley then concludes: Accordingly, I have determined to impose the following disciplinary action under section 188(1) of the Act: • a monetary penalty of $84.46 to be deducted from your periodic remuneration payments for a period of 18 weeks; and • a reprimand. -- 7 of 26 -- 8 Appeal principles [21] Section 562B(2) of the Industrial Relations Act 2016 (Qld) ('IR Act') requires the appeal to be decided by reviewing the decision appealed against.18 The word 'review' has no settled meaning, and so it must take its meaning from the context in which it appears.19 Section 562B(3) defines the purpose of the appeal as to decide whether the decision appealed against was fair and reasonable.20 The adjectives 'fair' and 'reasonable' should be given their ordinary meaning.21 The Commission's role is therefore confined to a review of the decision and the decision making process associated therewith.22 [22] The single issue for my determination is whether the decision appealed against was fair and reasonable.23 Findings which are reasonably open to the decision-maker are not expected to be disturbed on appeal.24 What decisions can the Commission make? [23] In deciding this appeal, s 562C of the IR Act provides that the Commission may:25 • confirm the decision appealed against; or • set the decision aside and substitute another decision; or • set the decision aside and return the issue to the decision-maker with a copy of the decision on appeal and any directions considered appropriate. Grounds of appeal [24] In her Appeal Notice, Ms Benjamin sets out two primary grounds of appeal, being:26 her personal and medical situation was not taken into account when determining a penalty; and the correspondence sent by the Department relating to the issuing of a revised decision lacked transparency. 18 Section 562B(2) of the Industrial Relations Act 2016 (Qld) ('IR Act'). 19 Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261. 20 Section 562B(3) of the IR Act (n 18). 21 Colebourne v State of Queensland (Queensland Police Service) (No 2) [2022] QIRC 016 ('Colebourne'), [25]. 22 Colebourne (n 21), [23]; Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018) ('Goodall'), 5. 23 Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252, [60]-[61] (Byrne SJA) ('Page'). 24 O'Hearn v State of Queensland (Queensland Health) [2023] QIRC 283, [10]. 25 Section 562C of the IR Act (n 18). 26 Appeal Notice filed 21 December 2022 ('Appeal Notice'), 4. -- 8 of 26 -- 9 Relevant Legislative Framework [25] This Decision is informed by the parties' submissions, the relevant legislation, and Directive 14/20: Discipline ('Directive 14/20').27 [26] For completeness, I have also had regard to the Department of Education Employment Direction 1/22 – COVID-19 Vaccinations,28 which is relevant only to the extent that it underpins the disciplinary finding that Ms Benjamin contravened, without reasonable excuse, cl 5 of Direction 1/22. [27] Ms Benjamin filed this appeal before the commencement of the Public Sector Act 2022 (Qld) ('PS Act') on 1 March 2023.29 Section 289 of the PS Act repeals the previous PS Act 200830 which was in effect at the time the disciplinary decision was made and when Ms Benjamin filed her appeal.31 At the time the Decision was made, the decision- maker was required to have regard to the relevant provisions of the (repealed) PS Act 2008 and (superseded) Discipline Directive. [28] Ms Benjamin brought the appeal under s 194 of the PS Act 2008.32 Section 324 of the PS Act brings appeals made under s 194 of the PS Act 2008 within the purview of the PS Act by requiring that such appeals be heard and decided under chapter 3, part 10 of the PS Act.33 Accordingly, pursuant to s 134 of the PS Act, this appeal must be heard and determined in accordance with Chapter 11 of the IR Act. Public Sector Act 2022 (Qld) [29] Ms Benjamin was found liable for discipline under s 187(1)(d) of the PS Act 2008.34 This provision was replaced by s 91(1)(h) of the PS Act which provides:35 91 Grounds for discipline (1) A public sector employee's chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has— .. (h) contravened, without reasonable excuse, a relevant standard of conduct in a way ....that is sufficiently serious to warrant disciplinary action. 27 This directive has since been superseded by Directive 05/23: Discipline. 28 In March 2022 the Director General issued Employment Direction 1/22 - COVID 19 Vaccinations. The requirement to receive two doses of a COVID-19 vaccine did not change from the previous Employment Direction 1/21, which was relevant to Ms Benjamin's earlier suspension. 29 Public Sector Act 2022 (Qld) ('PS Act'). 30 PS Act 2008 (n 4). 31 The decision under appeal was made on 5 December 2022 and Ms Benjamin filed the Appeal on 21 December 2022. 32 PS Act 2008 (n 4). 33 Section 324 of the PS Act (n 29). 34 Section 187(1)(d) of the PS Act 2008 (n 4). 35 Section 91(1)(h) of the PS Act (n 29). -- 9 of 26 -- 10 [30] Examples of disciplinary action which can be taken after grounds for discipline have been established are set out in s 92 of the PS Act as follows:36 92 Meaning of disciplinary action (1) Disciplinary action is any action relating to employment, including, for example, any of the following actions— (a) termination of employment; (b) reduction of classification level and a consequential change of duties; (c) transfer or redeployment; (d) forfeiture or deferment of a remuneration increment or increase; (e) reduction of remuneration level; (f) imposition of a monetary penalty; (g) if a penalty is imposed, a direction that the amount of the penalty be deducted .....from the employee's periodic remuneration payments; (h) a reprimand. Discipline Directive [31] Directive 14/20 came into effect on 25 September 2020. The purpose of Directive 14/20, amongst other things, is to outline the process for managing disciplinary action. [32] Clause 8.5 is relevant to determining proposed disciplinary action. It is clear from the decision on disciplinary action dated 5 December 2022, that Ms Crowley has used the matters set out in cl 8.5(d) as a basis for the provision of reasons for her decision.37 Clause 8.5(d) relevantly sets out the factors the decision-maker should consider when deciding appropriate and proportionate disciplinary action: … (i) the seriousness of the disciplinary finding (ii) the employee's classification level and/or expected level of awareness about their performance or conduct obligations (iii) whether extenuating or mitigating circumstances applied to the employee's actions (iv) the employee's overall work record including previous management interventions and/or disciplinary proceedings (v) the employee's explanation (if any) (vi) the degree of risk to the health and safety of employees, customers and members of the public (vii) the impact on the employee's ability to perform the duties of their position (viii) the employee's potential for modified behaviour in the work unit or elsewhere (ix) the impact a financial penalty may have on the employee 36 Section 92 of the PS Act (n 29). 37 Disciplinary Action Decision Letter (n 3), 2. -- 10 of 26 -- 11 (x) the cumulative impact that a reduction in classification and/or pay-point may have on the employee (xi) the likely impact the disciplinary action will have on public and customer confidence in the unit/agency and its proportionality to the gravity of the disciplinary finding. Ms Benjamin's Submissions [33] Ms Benjamin outlines within her submissions a brief timeline of the matter and makes specific reference to a requirement to reimburse an overpayment to the Department which arose due to her unpaid suspension being backdated.38 [34] Ms Benjamin further submits she held concerns about the Department's revised disciplinary penalty and was only able to confirm the reason for the change in penalty from a reduction in classification to a monetary penalty following further enquiries with the Department.39 [35] Within the submissions, Ms Benjamin observes that she received notice of the revocation of the proposed original penalty on 22 August 2022. However, she submits that the Department initiated consultation about the proposed new Enterprise Bargaining Agreement on 24 October 2022, which Ms Benjamin maintains is well after the revised penalty was proposed.40 [36] She concludes that Ms Crowley's decisions did not indicate that the pay point would no longer be applicable and instead imposed a monetary penalty without providing sufficient clarification for the reasons for the change in penalty.41 [37] Ms Benjamin raises further concerns that Ms Crowley has not cited or acknowledged any of the information she had provided within her earlier show cause responses.42 [38] Within her submissions, Ms Benjamin also references Vice President O'Connor's decision of Nuske v State of Queensland (Department of Education) ('Nuske'),43 including evidence provided by Ms Crowley about time frames and processes followed by the Department when considering the circumstances of employees who had not complied with the Direction.44 38 Appellant's submissions filed 28 August 2023 ('Appellant's submissions'), 1-2. 39 Appellant's submissions (n 38), 2. 40 Appellant's submissions (n 38), 2. 41 Appellant's submissions (n 38), 2. 42 Appellant's submissions (n 38), 3. 43 Nuske v State of Queensland (Department of Education) [2023] QIRC 199 ('Nuske'). 44 Appellant's submissions (n 38), 3. -- 11 of 26 -- 12 [39] In addition to the adverse financial impact of a six-month suspension without remuneration, Ms Benjamin relies on other events to support her assertions about the unfairness of Ms Crowley's decision, namely:45 • Ms Benjamin was not paid for 70 hours during the 2022 Christmas School Holidays which required her to reach out to payroll to clarify; and • if not for the interruption in her service, she would have been scheduled to receive a pay increment in July 2023, however, this was postponed to December 2023. [40] Ms Benjamin maintains the imposition of a further penalty is unwarranted and unnecessary having regard to the challenges she experienced in her communications with the Department and the financial loss she has already incurred.46 The Department's Submissions [41] The Department contends Ms Benjamin failed to comply with the Direction for the entirety of the time it was in force.47 [42] It argues that while Ms Benjamin claimed within her show cause responses, notice of appeal and submissions that she may have a medical contraindication to the COVID-19 vaccination, she did not provide any evidence of a medical condition which would attest to her being unable to safely receive the vaccine.48 [43] Similarly, the Department submits Ms Benjamin did not provide any evidence to confirm her claims that it would be necessary to cease taking her current medication, to receive the vaccine.49 [44] The Department maintains the disciplinary action imposed on Ms Benjamin is consistent with that imposed on other employees who also failed to comply with the Direction. Further, it is submitted that Ms Crowley demonstrated a clear and justifiable basis for making the decision, observing that her approach was accepted in Nuske.50 [45] In response to Ms Benjamin's reliance on the Nuske decision and Ms Crowley's evidence provided during that matter, it submits that Vice President O'Connor found Ms Crowley appropriately considered the individual issues of Departmental employees when making her decision. Therefore, Ms Benjamin's 'apprehension' regarding this process is misplaced.51 45 Appellant's submissions (n 38), 4. 46 Appellant's submissions (n 38), 4. 47 Respondent's Submissions (n 1), [19]. 48 Respondent's Submissions (n 1), [21]. 49 Respondent's Submissions (n 1), [21]. 50 Respondent's Submissions (n 1), [21], citing Nuske (n 43). 51 Respondent's Submissions (n 1), [22]. -- 12 of 26 -- 13 [46] The Department provided further clarification on the revised disciplinary penalty:52 The revised disciplinary action of a deduction in salary of $84.46 each fortnight was calculated as it was proportionate to the reduction in salary that would have occurred had Ms Benjamin's salary classification been reduced from H01-03 to H01-02. $84.46 is 1.7% of Ms Benjamin's H01-02 salary. [47] It submits that the decision to impose disciplinary action was procedurally fair in circumstances where Ms Benjamin was afforded an opportunity to respond to the First and Second Show Cause Notices, as well as the proposed revised disciplinary action, before it was imposed.53 [48] The Department argues its decision to suspend Ms Benjamin without renumeration is not disciplinary action, despite the financial impact it had on her. Rather, the suspension was a result of Ms Benjamin being unable to enter a school as a worker and perform her usual duties while unvaccinated.54 [49] It concludes that in circumstances where the Department found that Ms Benjamin failed to comply with a lawful and reasonable direction, made in the context of attempts to manage the impact of a highly contagious and potentially deadly virus, Ms Benjamin's non-compliance was a serious act of insubordination.55 It maintains that in circumstances where Ms Benjamin did not obtain the COVID-19 vaccination and indicated she was not willing to comply with the requirement, it was reasonably open for Ms Crowley to impose the disciplinary action.56 Ms Benjamin's Reply Submissions [50] Ms Benjamin raises concerns about the Department's explanation for rescinding the earlier proposed penalty and its description of the penalty within its submissions, the manner in which her suspension was subsequently cancelled by the Department and observes that Ms Crowley is no longer working for the Department.57 [51] As best I understand, Ms Benjamin also appears to suggest within her reply submissions, that at no time has the Department made a disciplinary finding. [52] However, it is clear from the materials filed in the Commission that she received a decision made on 1 August 2022 by Ms Crowley, substantiating the allegation.58 52 Respondent's Submissions (n 1), [24]. 53 Respondent's Submissions (n 1), [25]. 54 Respondent's Submissions (n 1), [26]. 55 Respondent's Submissions (n 1), [27], citing Bakhash v State of Queensland (Department of Education) [2022] QIRC 362, [27]. 56 Respondent's Submissions (n 1), [28]. 57 Appellant's submissions in reply filed 6 November 2023 ('Appellant's reply submissions'). 58 Disciplinary Findings Decision Letter (n 2), 1. -- 13 of 26 -- 14 [53] This is the same correspondence in which Ms Crowley proposes the original proposed disciplinary penalty that was later revoked.59 This letter also contains a paragraph labelled 'Appeal entitlements' which details Ms Benjamin's ability to appeal the disciplinary finding decision.60 Consideration Preliminary issue – The revised disciplinary action [54] Before turning to the substance of the appeal, it is convenient to clearly identify the decision under review and to consider Ms Benjamin's challenge to the revised disciplinary penalty. [55] The decision presently under appeal is the disciplinary action decision of 5 December 2022 in which Ms Crowley imposed a monetary penalty of $84.46 to be deducted from Ms Benjamin's periodic remuneration payments for a period of 18 weeks, together with a reprimand.61 That was not, however, the first disciplinary action proposed. [56] By letter dated 22 August 2022, Ms Crowley wrote to Ms Benjamin advising of her decision to impose the disciplinary action of a reduction in remuneration from H01-02 to H01-01 for a period of 20 weeks, at which time she would automatically revert to her previous increment, and a reprimand.62 [57] By letter dated 21 October 2022, Ms Crowley wrote to Ms Benjamin advising she had undertaken a further review of Ms Benjamin's individual salary classification and the administrative viability of imposing the previous penalty. In the same correspondence, Ms Crowley revoked the decision on disciplinary action dated 22 August 2022 and proposed a revised disciplinary penalty. [58] Ms Crowley provided Ms Benjamin seven days to show cause as to why a proposed monetary penalty of $84.46 to be deducted from her periodic remuneration payments for a period of 18 weeks and a reprimand, should not be imposed.63 [59] As provided in the Department's submissions:64 The revised disciplinary action was necessary as a result of the H0-01 classification level not existing in the Certified Agreement. It was therefore not possible to reduce Ms Benjamin's salary classification to H0-01. The initial disciplinary action was proposed in error. 59 Disciplinary Findings Decision Letter (n 2). 60 Disciplinary Findings Decision Letter (n 2), 4. 61 Disciplinary Action Decision Letter (n 3). 62 Respondent's Submissions (n 1), [11]. 63 Respondent's Submissions (n 1), [13]. 64 Respondent's Submissions (n 1), [14]. -- 14 of 26 -- 15 [60] Clause 8.6(c) of Directive 14/20 allows the delegated decision-maker to impose disciplinary action different from that proposed, provided that:65 (i) the revised disciplinary action is objectively less onerous than the original action proposed, or (ii) the employee is given a further opportunity to comment on the appropriateness of the new proposed action, before a final decision on the disciplinary action is made and communicated to the employee, or (iii) the employee has suggested the disciplinary action as an appropriate alternative penalty [61] In circumstances where Ms Benjamin was afforded a further seven days to respond to the revised disciplinary action, cl 8.6(c)(ii) plainly applies. However, having regard to the manner in which the penalty was calculated,66 and the shorter duration for which it would be imposed,67 the penalty imposed was either equivalent or objectively less onerous to that originally imposed, such that cl 8.6(c)(i) is arguably relevant. In any event, the Department afforded Ms Benjamin a further opportunity to respond to the revised disciplinary penalty. [62] I am not persuaded the matters Ms Benjamin raises in her submissions disclose any unfairness in respect of the revocation of the earlier penalty and the subsequent decision to impose a monetary penalty. I accept the timing of the enterprise bargaining process explains why it was necessary to revise the original penalty. It does not bear upon the fairness of the equivalent penalty ultimately imposed. [63] As Vice President O'Connor observed in relation to the disciplinary action imposed on similarly affected employees, 'the penalty imposed by Ms Crowley amounted to a reduction for 18 weeks of one remuneration increment (or equivalent where that was not possible) and a reprimand.'68 The revised disciplinary penalty plainly falls within the circumstances contemplated by the qualification, as it was no longer possible for the Department, having regard to Ms Benjamin's circumstances, to impose a reduction of one remuneration increment. [64] Ms Crowley was not required to provide the precise method of calculation by which the figure of $84.46 was derived. Relevantly, Ms Crowley's reasons 'are not to be construed minutely and finely with an eye keenly attuned to the perception of error.'69 65 Clause 8.6(c)(i)-(iii) of Directive 14/20. 66 Respondent's Submissions (n 1), [24]. 67 The duration was reduced from 20 to 18 weeks. 68 Nuske (n 43), [71]. 69 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, 287. -- 15 of 26 -- 16 [65] Finally, any inconsistency in the description of the weekly and fortnightly amounts, or of the relevant pay bands, appears in the Department's submissions and not in the discipline decision itself. [66] In my view, Ms Benjamin has identified no practical injustice on this point.70 The Department was entitled to impose a revised disciplinary penalty and followed the requirements of Directive 14/20 in the process it undertook to do so. Issue 1 – Scope of the appeal [67] The disciplinary process under the PS Act contemplates two distinct and separate decisions. The first is a decision on whether an allegation that a disciplinary ground exists for a person, can be substantiated. The second, having substantiated an allegation, is a decision on the disciplinary action which is appropriate thereafter.71 [68] In this matter, the disciplinary findings decision was the letter of 1 August 2022, in which the decision-maker made disciplinary findings against Ms Benjamin.72 The second was the letter of 5 December 2022, wherein the decision-maker determined to impose the revised disciplinary action.73 [69] Ms Benjamin's submissions are directed, for the most part, at the disciplinary action decision. However, to a limited extent, Ms Benjamin has advanced arguments that bear upon the disciplinary findings decision. For instance, Ms Benjamin contends that it may have been necessary for her to cease taking her medication to receive COVID-19 vaccination and that the decision-maker did not acknowledge the impact that stopping her medication would have on her severe rheumatoid arthritis.74 In my view, this contention is directed to whether Ms Benjamin contravened the Direction without reasonable excuse, that is, to the disciplinary finding. [70] For the avoidance of any doubt and to the extent it is necessary to be clear about the limits of this appeal, I note that s 562B of the IR Act relevantly provides:75 562B Public service appeal to commission is by way of review (1) This section applies to a public service appeal made to the commission. (2) The commission must decide the appeal by reviewing the decision appealed against. (3) The purpose of the appeal is to decide whether the decision appealed against was fair and reasonable. 70 Re Minister for Immigration and Multicultural Affairs; Ex Parte Lam (2003) 214 CLR 1, [37]. 71 Nuske (n 43), [24]. 72 Respondent's Submissions (n 1), [9]. 73 Respondent's Submissions (n 1), [17]. 74 Appeal Notice (n 26), 4. 75 Section 562B of the IR Act (n 18). -- 16 of 26 -- 17 [71] The reference to the decision under review is singular. The Commission's jurisdiction in any given appeal is confined to a review of the decision appealed against, and only that decision.76 Ordinarily, an employee who does not challenge the earlier decision that they are liable to disciplinary action cannot later revisit that finding as a means of challenging the penalty imposed by the separate, subsequent decision.77 [72] To the extent Ms Benjamin invites the Commission to consider submissions that go to the disciplinary findings decision, that invitation falls beyond the scope of the Commission's jurisdiction in this appeal. [73] Ms Benjamin had the opportunity to appeal the disciplinary findings decision. Ms Benjamin's appeal rights were clearly detailed in the disciplinary findings decision correspondence of 1 August 2022.78 Further, any contention by Ms Benjamin that she did not receive a disciplinary findings decision cannot be reconciled with the materials filed in the Commission. [74] None of this leaves Ms Benjamin's medical and financial circumstances out of account. To the extent they are advanced not as a reasonable excuse for the non-compliance with the Direction, but as extenuating or mitigating circumstances bearing on the appropriateness of the penalty, they are relevant to the disciplinary action decision. I have considered these factors below, with the balance of the parties' submissions in the issues that follow. Issue 2 – The adequacy of consideration and procedural fairness [75] Ms Benjamin advances the argument that Ms Crowley did not genuinely engage with her show cause responses and gave no real consideration to her individual circumstances, in respect of the proposed penalty.79 Ms Benjamin relies on the scale of the exercise undertaken by Ms Crowley, the fact that Ms Crowley reviewed all show cause responses within two weeks, the uniformity of the outcomes across the affected cohort and the absence of any express reference to her submissions in the discipline decision.80 Ms Benjamin further contends that Ms Crowley did not acknowledge her medical history, nor seek further information concerning it.81 [76] Two key questions arise from this submission. The first is whether Ms Crowley adequately considered Ms Benjamin's individual circumstances. The second is whether the disciplinary process gave rise to any procedural unfairness. 76 Radanovic v State of Queensland (Department of Education) [2024] QIRC 225 ('Radanovic'), [27], citing Carr v State of Queensland (Department of Education) [2024] QIRC 210. 77 Radanovic (n 76), [28]. 78 Disciplinary Findings Decision Letter (n 2), 4. 79 Appellant's submissions (n 38), 3-4. 80 Appellant's submissions (n 38), 3-4. 81 Appellant's reply submissions (n 57), 3. -- 17 of 26 -- 18 Were Ms Benjamin's individual circumstances considered by the decision-maker? [77] Clause 8.6 of Directive 14/20 requires the decision-maker to review all relevant material and inform the employee of the discipline decision in writing, including reasons for the decision. Clause 8.5(d) sets out a range of factors the decision-maker should consider when proposing appropriate and proportionate disciplinary action.82 It is clear from Ms Crowley's disciplinary action decision letter that the factors set out in cl 8.5(d) formed the scaffold for the provision of her reasons.83 I have addressed the relevant considerations and Ms Crowley's treatment of each, in turn. [78] Clause 8.5(d)(i) concerns the seriousness of the disciplinary finding. The Department maintains that the obligation of an employee to comply with a lawful and reasonable direction is deeply embedded in every employment relationship. Further, the Department submits that any breach of a lawful and reasonable direction is liable to shatter the trust required to sustain the employment relationship.84 Ms Crowley's reasons reflect this position and her treatment of this consideration appears in the discipline penalty decision as follows:85 The disciplinary finding against you is serious. It is reasonable for the department, as your employer, to expect that you comply with lawful and reasonable directions. Such an expectation is fundamental to the employment relationship, and your failure to comply is damaging to the trust and confidence placed in you. [79] Clause 8.5(d)(ii) concerns the employee's classification level and/or expected level of awareness about their performance or conduct obligations. Ms Crowley noted the Direction had been the subject of extensive communication to departmental employees from the time it was announced and there was no suggestion that Ms Benjamin was unaware of her obligation to comply. Ms Crowley further stated:86 As a public servant, you are in a position of privilege and trust, and there is a reasonable public and employer expectation that you comply with directions arising in response to a serious public health matter. Employment Direction 1/22 – COVID-19 Vaccinations (Direction) was issued as part of the department's response to the public health order, declaring a public health emergency. [80] Clause 8.5(d)(iii) concerns whether extenuating or mitigating circumstances applied to the employee's actions, while cl 8.5(d)(v) involves consideration of the employee's explanation, if any is provided. Ms Crowley dealt with both in the discipline decision:87 82 See paragraph [32] above for the list of factors set out at cl 8.5(d) of Directive 14/20. 83 Disciplinary Action Decision Letter (n 3), 2. 84 Respondent's Submissions (n 1), [27]. 85 Disciplinary Action Decision Letter (n 3), 2. 86 Disciplinary Action Decision Letter (n 3), 2. 87 Disciplinary Action Decision Letter (n 3), 2. -- 18 of 26 -- 19 While I note your submissions, I am satisfied that you have not provided an explanation, or information regarding extenuating or mitigating circumstances that leads me to believe that the disciplinary action is unreasonable in the circumstances. [81] On 22 June 2022, Ms Benjamin responded to the First Show Cause Notice. Ms Benjamin, under the heading of 'my individual circumstances', stated that she had undertaken her own research into COVID-19 vaccination and concluded that if she were to take the vaccine, 'it may cause unforeseeable and serious health problems in the near or distant future' due to both insufficient testing and her rheumatoid arthritis which 'may' be a contraindication with the vaccine.88 In her show cause response of 27 October 2022 in which she responded to the proposed revised disciplinary action, Ms Benjamin reiterated her concerns.89 [82] The Department submits, however, that Ms Benjamin did not provide any medical evidence to support these submissions at any of the several junctures available to her before the disciplinary finding was made or the disciplinary action imposed. Nor did she seek an exemption from the Department.90 [83] In this proceeding, Ms Benjamin has again submitted the Department did not sufficiently consider her individual circumstances and that Ms Crowley ought to have sought out further information regarding both her medical history and concerns regarding the vaccine.91 [84] In my view, that submission goes primarily to the disciplinary finding, rather than the disciplinary action decision. To the extent those submissions are relevant to the disciplinary penalty, I am satisfied that Ms Crowley considered Ms Benjamin's submissions on that point as part of her assessment of Ms Benjamin's individual circumstances, including her reason for not complying with the Direction. Further, Ms Crowley provided in the discipline decision that she had considered Ms Benjamin's responses in their entirety and that any omission to address a particular matter in the letter did not mean it had not been carefully considered.92 88 Respondent's Submissions (n 1), Attachment 4 'Ms Melanie Benjamin's Show Cause Response dated 22 June 2022' ('First Show Cause Response'), [4]-[6]. 89 Respondent's Submissions (n 1), Attachment 9 'Ms Melanie Benjamin's Show Cause Response dated 27 October 2022' ('Revised Disciplinary Action Show Cause Response'), [17]-[19]. 90 Respondent's Submissions (n 1), Attachment 3 'First Show Cause Notice Letter from Mr David Miller to Ms Melanie Benjamin dated 10 June 2022' ('First Show Cause Notice'), 2 (particular 5). 91 Appeal Notice (n 26), 4; Appellant's reply submissions (n 57), 3. 92 Disciplinary Action Decision Letter (n 3), 1. -- 19 of 26 -- 20 [85] In any event, the onus of providing evidence to support a medical bar to compliance with the Direction lay with Ms Benjamin and it was not for Ms Crowley to seek out further information or make that case on her behalf. In circumstances where Ms Benjamin failed to provide any medical evidence to support her submissions, it was reasonable for the Department to rely on the materials and submissions provided to it at the time, including the absence of any evidence in support of any asserted medical contraindication. [86] With respect to Ms Benjamin's submissions regarding her own research on the safety of the vaccines and her concerns regarding the adequacy of testing,93 this line of reasoning has previously been dismissed as a valid reason for non-compliance with the Direction. [87] In Sainty v State of Queensland (Queensland Health) (No. 2),94 Deputy President Merrell found the appellant's anxiety and fear about receiving the vaccination amounted to vaccine hesitancy and was not a reasonable excuse to fail to comply with the lawful direction to be vaccinated.95 [88] Similarly, in Borough v State of Queensland (Department of Environment and Science),96 Industrial Commissioner Hartigan (as her Honour then was), held that the appellant's concern about what he considered to be incomplete or insufficient data on the possible side-effects and efficacy of the vaccines amounted to 'vaccine hesitancy'.97 Hartigan IC found that those views, and the resulting hesitancy to have a vaccine administered, did not form a reasonable basis for refusing to comply with the direction to do so.98 [89] To the extent Ms Benjamin disputes the Direction itself, the Commission has repeatedly scrutinised the Direction and has consistently found it to be a reasonable and lawful direction.99 93 First Show Cause Response (n 88), 6. 94 [2023] QIRC 78 ('Sainty'). 95 Sainty (n 94), [15]-[18]. 96 [2022] QIRC 357 ('Borough'). 97 Borough (n 96, [40]. 98 Borough (n 96), [40]-[41]. 99 Thorley v State of Queensland (Department of Education) [2022] QIRC 133; Schimke v State of Queensland (Department of Education) [2022] QIRC 136; Allison v State of Queensland (Department of Education) [2022] QIRC 152; Nicholas v State of Queensland (Department of Education) [2022] QIRC 157; Tadeo v State of Queensland (Department of Education) [2022] QIRC 177; Carr v State of Queensland (Department of Education) [2022] QIRC 188; Gorry v State of Queensland (Department of Education) [2022] QIRC 196; Tribe v State of Queensland (Department of Education) [2022] QIRC 203; Prentis v State of Queensland (Department of Education) [2022] QIRC 212; Currie (Murray) v State of Queensland (Department of Education) [2022] QIRC 269. -- 20 of 26 -- 21 [90] Although Ms Benjamin was entitled to hold a different view, Ms Crowley was not required to accept Ms Benjamin's personal views about the vaccine or Direction, when determining the appropriate disciplinary action.100 As the discipline decision records, the choice not to comply was Ms Benjamin's to make, but the consequence of that choice was that she became liable to discipline.101 [91] Clause 8.5(d)(iv) is directed to the employee's overall work record, including any previous management interventions or disciplinary proceedings. In her first show cause response, Ms Benjamin detailed both her service history and examples which she submits demonstrate her commitment to teaching.102 The discipline decision records that, while identifying the seriousness of the disciplinary finding, Ms Crowley elected to impose a disciplinary action which enabled Ms Benjamin to continue in her employment.103 [92] Clause 8.5(d)(vi) concerns the degree of risk to the health and safety of employees, customers and members of the public. Ms Crowley addressed this factor as follows:104 Your conduct in failing to comply with the Direction posed a risk to the health and safety of your co-workers, students and members of the public, which was mitigated only by the steps taken by the department to suspend you from duty. [93] In circumstances where the Direction was issued as part of the Department's response to a declared public health emergency, it was reasonable for Ms Crowley to regard Ms Benjamin's non-compliance with the Direction as posing a risk to the health and safety of her co-workers, students and members of the public. [94] Clause 8.5(d)(vii) goes to the impact on the employee's ability to perform the duties of her position. Ms Crowley observed that Ms Benjamin remained a departmental employee and was able to continue to perform her duties.105 I am satisfied this consideration was appropriately addressed by the decision-maker. [95] As to the employee's potential for modified behaviour, addressed by cl 8.5(d)(viii), Ms Crowley observed that, as Ms Benjamin remained a departmental employee, the disciplinary action afforded her the opportunity to display modified behaviour by complying with directions in the future.106 [96] Clause 8.5(d)(ix) concerns the impact a financial penalty may have on the employee. Ms Benjamin's show cause response raised the financial hardship the penalty would occasion her. Ms Crowley addressed that impact in the discipline decision as follows:107 100 Tilley v State of Queensland (Queensland Health) [2022] QIRC 22, [42]. 101 Disciplinary Action Decision Letter (n 3), 1. 102 First Show Cause Response (n 88). 103 Disciplinary Action Decision Letter (n 3), 1. 104 Disciplinary Action Decision Letter (n 3), 1. 105 Disciplinary Action Decision Letter (n 3), 1. 106 Disciplinary Action Decision Letter (n 3), 1. 107 Disciplinary Action Decision Letter (n 3), 1. -- 21 of 26 -- 22 I acknowledge that the disciplinary action will have a financial impact on you. However, I consider that the seriousness of the disciplinary action and its impact on you is proportionate to the seriousness of your conduct [97] I am satisfied Ms Crowley gave adequate consideration to cl 8.5(d)(ix) and Ms Benjamin's financial position. The relevance (or lack thereof) of her contention that the penalty was disproportionate having regard to the financial detriment she sustained as a result of her suspension, has been addressed in Issue 3. [98] Clause 8.5(d)(x) concerns the cumulative impact that a reduction in classification and/or pay-point may have on the employee. [99] The revised disciplinary action imposed upon Ms Benjamin was a monetary penalty, and not a reduction in classification or pay-point, so that consideration is not particularly relevant. Ms Crowley nonetheless addressed the cumulative personal and financial impact of the process upon Ms Benjamin in that she acknowledged that the implementation of the Direction may have been a difficult period; and, while noting that Ms Benjamin has been suspended without pay for a period, she remained of the view that the disciplinary action was reasonable and proportionate to Ms Benjamin's conduct.108 [100] The last of the considerations under cl 8.5(d) is sub-section (xi), which is the likely impact of the disciplinary action on public confidence in the Department, and its proportionality to the gravity of the disciplinary finding. Ms Crowley concluded that no other disciplinary action would adequately reflect the seriousness with which she viewed Ms Benjamin's conduct.109 [101] It follows that Ms Crowley turned her mind to each of the matters identified in cl 8.5(d) that arose on the materials before her, and that the discipline decision discloses the reasoning by which she did so. [102] For completeness, I note the discipline decision also recorded Ms Crowley's consideration of the impact of the disciplinary action upon Ms Benjamin's human rights, and her conclusion was that any limitation was reasonable and demonstrably justified in the public interest. The decision also informed Ms Benjamin of her appeal rights. [103] For the reasons set out above, I am satisfied that, in accordance with cl 8.6 of Directive 14/20, the written decision properly discharged the relevant requirements. 108 Disciplinary Action Decision Letter (n 3), 1. 109 Disciplinary Action Decision Letter (n 3), 1. -- 22 of 26 -- 23 Was Ms Benjamin afforded procedural fairness? [104] I turn to the second of the appeal grounds identified by Ms Benjamin within her submissions, namely whether the scale of the exercise undertaken by Ms Crowley, the period within which the responses were reviewed and the uniformity of the outcomes across the affected employees, gave rise to any procedural unfairness. [105] The disciplinary process was required to afford Ms Benjamin natural justice. In Kioa v West,110 Mason J observed there is a common law duty to act fairly, in the 'sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations'.111 [106] The contentions that Ms Benjamin seeks to advance in respect of procedural fairness were squarely raised and addressed in Nuske.112 In that decision, Vice President O'Connor considered a substantially similar matter involving the same respondent, which had disciplined a teacher for failing to comply with the same Direction.113 The respondent disciplined that teacher alongside many other employees who, like Ms Benjamin, failed to follow the Direction.114 His Honour also considered evidence from Ms Crowley, the decision-maker in the present matter, regarding the same show cause process undertaken at a similar time as Ms Benjamin's process. [107] I do not intend to set out all of Vice President O'Connor's reasoning here, however I note the following observations which are directly relevant to Ms Benjamin's submissions on this point. [108] His Honour relevantly found that Ms Crowley had appropriately considered the individual issues before her when making her decision and that the use of 'mail merge' technology or a template letter in addressing like cases did not demonstrate that individual circumstances were not given appropriate weight or consideration:115 The disciplinary action decision sets out the reasoning process adopted by the decision-maker to reach her conclusion. The decision reflects to the extent relevant, the provisions of Directive 14/20 and Clause 8.6. The evidence before the Commission does not support the contention that the process utilised in the 22 August 2022 decision demonstrates that the relevant material, including the individual issues/circumstances raised by the Appellant, were not appropriately considered or given weight in making the decision, pursuant to Clause 8.6 of the Discipline Directive. 110 [1985] HCA 81; (1985) 159 CLR 550 ('Kioa'). 111 Kioa (n 110), 584. 112 Nuske (n 43). 113 Nuske (n 43), [1]. 114 Nuske (n 43), [3], [26]. 115 Nuske (n 43), [48]-[49]. -- 23 of 26 -- 24 [109] Further, his Honour accepted Ms Crowley's evidence that, in circumstances where the responses exhibited a high degree of commonality, with a substantial proportion being templated or absent, and where the contravention in each case was clear and not in dispute, she had ample time to consider all relevant information, including the responses.116 Therefore, I do not accept Ms Benjamin's apprehension that the two weeks Ms Crowley took to consider the matters before her was insufficient. [110] Similar submissions were made on behalf of Mr Nuske as are raised by Ms Benjamin in her reasons for appeal on the issue of procedural fairness. His Honour held that the process did not offend the principles of natural justice and complied with the requirements of Directive 14/20.117 Further, his Honour found that the fact that the same penalty was applied to many other employees who had also failed to receive the required vaccination, did not render the penalty decision unfair or unreasonable.118 [111] I am satisfied that Ms Benjamin was placed on notice of the allegation and its particulars, afforded the opportunity to respond both to the finding and to the proposed disciplinary action, including a further opportunity to respond to the revised disciplinary action, and her responses were received and considered before the relevant decisions were made. [112] As set out by his Honour in Nuske, in considering whether there has been a lack of procedural fairness the Commission must ask: 'has there been a practical injustice that could have materially affected the decision?'119 On any view of the evidence in this matter, the answer to that question must be, no. [113] Neither limb of Ms Benjamin's submissions on Issue 2 is made out. 116 Nuske (n 43), [47]. 117 Nuske (n 43), [85]-[92]. 118 Nuske (n 43), [79]. 119 Nuske (n 43), [87]. -- 24 of 26 -- 25 Issue 3 – The relevance of the suspension [114] Ms Benjamin's remaining contention is that the disciplinary action was neither fair nor reasonable, because she had already been penalised by her suspension without pay, and the further monetary penalty was disproportionate.120 Further, Ms Benjamin raises concerns that Ms Crowley did not consider that she was not paid for a further 70 hours during the Christmas school holidays. Finally, Ms Benjamin contends that she was scheduled to receive a remuneration increment increase in July 2023, however due to the interruption of her service, that increase was postponed.121 [115] The premise of this contention is misconceived. It is well settled that suspension and suspension without pay, are not disciplinary action for the purposes of the PS Act.122 The financial detriment that Ms Benjamin sustained during her suspension was not a penalty imposed upon her by the Department. Instead, it was the consequence of her own choice not to comply with the Direction, for which she alone was responsible. [116] The same logic can be applied to any non-financial detriment that Ms Benjamin attributes to her suspension, such as ostracization from her peers or the interruption to her career.123 As observed by Dwyer IC in Stacey v State of Queensland (Department of Education):124 Mr Stacey seeks to characterise all of this suffering as somehow having been imposed by the Department. But all of this was exclusively a consequence of his choice not to be vaccinated. Mr Stacey's inability to enter Department premises and perform work was entirely a feature of the health directive in place at the time. It prohibited inter alia unvaccinated employees from attending schools. All of the hardship detailed in Mr Stacey's submissions was not a penalty imposed by the Department for noncompliance. It was hardship that he imposed on himself and his family through his choice to not be vaccinated. Mr Stacey was entirely free to have made that choice, but the consequences of that choice are his responsibility. [117] It follows that the monetary penalty imposed for failing to comply with a lawful and reasonable direction is distinct from any detriment, financial or otherwise, that Ms Benjamin incurred as a consequence of her decision not to comply with the health direction then in place, which rendered her unable to attend the workplace and perform her role. [118] To the extent that Ms Benjamin advances submissions that the penalty was disproportionate or that her circumstances were not sufficiently considered, these have been addressed at Issue 2. 120 Revised Disciplinary Action Show Cause Response (n 89), [20]-[32]. 121 Appellant's submissions (n 38), 4. 122 XY v State of Queensland (Department of AB) [2026] QIRC 178, [53]. 123 Revised Disciplinary Action Show Cause Response (n 89), [25]-[32]. 124 [2024] QIRC 220, [48]-[49]. -- 25 of 26 -- 26 [119] I am satisfied that Ms Crowley gave adequate consideration to Ms Benjamin's financial circumstances before arriving at her decision. It was open to the decision-maker to conclude that a reprimand alone would not have reflected the seriousness of the conduct and that the penalty chosen was proportionate to it. Conclusion [120] I do not consider that the matters raised by Ms Benjamin render the decision or the decision-making process as not fair and reasonable. [121] For the reasons advanced above, I have formed the view that the decision, the subject of the appeal before the Commission, was fair and reasonable. Order [122] Accordingly, I make the following order: 1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed. -- 26 of 26 --